Kennedy v Malhotra

The need for cervical screening

1. Before considering the specific evidence, it is necessary to say something about cervical screening.
2. I have been provided with extensive expert evidence on the need for cervical screening, the development of cervical cancer and how it may be prevented and treated.
3. The Australian Government National Cervical Screening Program guidance states: "National screening strategies are inclusive of all women. In Australia, women are eligible for a Cervical Screening Test if they are: i. Aged between 25 and 74; ii. Sexually active or ever have been; iii. Have a cervix."
4. Regular cervical screening prevents approximately 70% of cervical cancer deaths. The vast majority of cases of cervical cancer develop as a consequence of infection with the oncogenic (cancer-causing) human papilloma virus ("HPV"). This is said to be a common virus among sexually active adults. Infection is usually transient but in a small number of individuals the virus can persist and lead to a precancerous change called cervical intraepithelial neoplasia ("CIN"). This can be present for up to 10 years before becoming an invasive cancer.
5. CIN can be detected by cervical screening using a combination of cervical cytology and/or HPV testing. A positive screening test results in colposcopy referral. When CIN has been diagnosed it can be effectively treated by a single outpatient local excisional treatment. The likelihood of future occurrence of an invasive cancer is then less than 1%.
6. Early-stage cancer (stage 1) is usually managed surgically as the disease is contained to the cervix. Later stage cancer of the cervix is managed by radical hysterectomy and pelvic node dissection. More advanced disease is usually managed with chemoradiotherapy, without surgery.
7. Prior to December 2017, cervical cancer screening in Australia was a cell-based examination of the cervix. It seems that the name ''Pap test" comes from the description originally provided by George Papanicolaou, the Greek physician. The Pap test involved inserting a speculum into the vagina, visualising the cervix and wiping a brush over the surface. The cell materials were then sent for examination. Prior to 2017, the national guidelines suggested that women should present every two years for collection of the cervical swab. The screening should start two years after a woman became sexually active and cease at the age of 70.
8. The procedure is invasive. It seems that compliance with the correct procedure is as low as 60%.
9. In 2017, the government introduced radical change to cervical cancer screening. As it was known that most cervical cancer was associated with HPV infection, a new program was introduced to search for genetic material of HPV in a cervical swab rather than look for precancerous or cancerous cells.
10. The new test is called a cervical screening test ("CST"). It offers benefits over the old Pap smear and, significantly, the frequency of screening has been reduced to every 5 years starting at the age of 25 and ceasing at the age of 74.
11. There is a cervical screening register. Once on the register, a woman would receive a reminder every five years as well as prompts should they not attend for a CST.
12. There are thus national guidelines as to when and how often a woman should have a Pap smear. There is a national register through which reminders will be sent at the appropriate times. However, there is no guideline or standard which specifies when and how often a general practitioner should advise the patient of the need to have cervical screening or remind the patient of the times when she should be having cervical screening. I will comment further on this later in this judgment.

Amended statement of claim

1. It is necessary to say something further about the amended statement of claim.
2. The statement of claim was amended shortly prior to the hearing and after the plaintiff had received the defendant's statement. That is not necessarily unusual. Proceedings will often be commenced in these types of matters without the plaintiff or solicitors having the benefit of the medical records. In a case involving treatment over a lengthy period, the plaintiff may be uncertain or mistaken as to when she was treated and for what purposes.
3. Having said that, the significance of the amended statement of claim in this matter is that, although the plaintiff continued to maintain that the defendant positively informed her that a Pap smear was not necessary, the plaintiff added what I will describe as an alternative case. The plaintiff added particulars of treatment and recommendations she had received from 2018 and added a number of particulars of negligence. However, the material facts pleaded by the plaintiff in respect to the period up to September 2018 remained the same. They are: "On 22 January 2014, the plaintiff attended upon the defendant, for the first time, for medical treatment in relation to, inter alia, swelling in her neck. In the course of a follow-up appointment, the precise date of which the plaintiff is unaware, the plaintiff: (a) Informed the defendant that she had a history of heavy menstrual bleeding and painful menstrual cramps; and (b) Sought the defendant's advice as to whether she, the plaintiff, ought to undergo a pap smear. The defendant then told the plaintiff words to the effect of: "A pap smear is not necessary, because you are not currently sexually active." Over the ensuing 4 years and 8 months, the plaintiff consulted the defendant for medical treatment and advice, on 28 occasions. Throughout the period, the plaintiff regularly sought the defendant's advice as to whether she ought to undergo a pap smear. On each of those occasions, the defendant told the plaintiff words to the effect of: "A pap smear is not necessary, because you are not currently sexually active." At no stage during the period 22 January 2014 to 16 November 2019 did the defendant: (a) Advise the plaintiff that she ought to undergo a pap smear, or Cervical Screening Test (CST); (b) Refer the plaintiff for a pap smear or CST; or (c) Take any steps to satisfy herself of the fact of, or result of, any such test the plaintiff might previously have undertaken."
4. For the period 8 September 2018 onwards, the plaintiff added additional material facts relating to the treatment afforded to the plaintiff in September 2018, suggesting that she should have referred the plaintiff to a specialist for a Pap smear or offered to undertake one there and then.
5. The particulars of negligence in the further amended statement of claim may be summarised as follows: 1. failing to appreciate that the plaintiff, as a female who had previously engaged in sexual intercourse, was at risk of infection from osteogenic HPV; 2. failing to advise the plaintiff that she was at risk of infection which, if not detected and treated, could lead the development of cervical cancer; 3. informing the plaintiff that it was unnecessary for her to undergo a Pap smear and/or CST; 4. failing to advise the plaintiff of her eligibility for cervical screening through the National Cervical Screening Program; 5. failing to perform a Pap smear in the defendant's rooms; 6. failing to refer the plaintiff for a Pap smear; 7. failing to advise the plaintiff of the importance of undergoing a CST; 8. failing to inform the gynaecologist in the first pelvic ultrasound referral that the plaintiff needed to undergo a CST; 9. failing to request of the gynaecologist that a CST be undertaken; 10. failing to enquire of the plaintiff in the period 29 September 2018 and following as to whether she had undergone a CST; 11. failing to satisfy herself that the plaintiff had undergone a CST; 12. failing to enquire with reference to the cervical screening register or otherwise as to whether the plaintiff's cervical screening was up-to-date as at April 2015 or any time subsequently until 13 December 2019.

The plaintiff

1. The plaintiff is an educated and intelligent woman. She was born and raised in Iran where she lived until the age of 25. Her father died in 2015, and her mother and brother live in Slovenia. After completing her schooling in Iran, she completed a Bachelor of English Language Translation in Iran and then spent two years working as a translator in Iran.
2. In 2007 she moved to Dubai, where she commenced her career in human resources, global mobility and recruitment. In March 2012, she came to Australia for a holiday and ultimately decided to stay here permanently. She became an expert in recruiting work for the oil and gas industries and became aware that her skills were well sought after. Indeed, her original employer sponsored her application for a temporary employment visa. During the period 2012 to 2022, she worked in various jobs. It must be, as she herself said in her evidentiary statement, that she had a bright future ahead of her. She was multilingual and well-travelled.
3. She first became aware of her potential diagnosis on 20 May 2020. She underwent treatment. A 12-month follow-up scan performed on 26 November 2021 showed no evidence of metastasis. She was in remission. By this stage, she was seeing a new GP.
4. Unfortunately, in November 2022 she began to develop severe pain in her abdomen and became unwell. At her three-monthly cervical checkup in December 2022 with a radiation oncologist, the results were clear. However, by May 2023 her symptomatology had increased. She was referred for a CT scan which showed a recurrence of the cervical cancer. It was ultimately discovered that it had metastasised at multiple sites through her body. She has been informed that the cancer is incurable. She has been undergoing extensive treatment.
5. She gave evidence with courage and determination under considerable adversity. She was in obvious pain and discomfort. She spoke softly but clearly. As far as I can determine, she speaks English perfectly.

The defendant

1. The defendant is a registered general practitioner. She obtained a medical degree in 1993 and migrated to Australia shortly thereafter. In 1995 she completed her qualifications to practice in Australia and commenced internships at hospitals in New South Wales. She has been practicing as a general practitioner since about 1995/1996. In 2008, she obtained a fellowship with the Royal Australian College of General Practitioners.
2. During the period of 2012 to 2019, she was employed full-time at the Forum Medical Centre at St Leonards before it closed. Since that time, she has been conducting full-time practice at an adjacent Medical Centre.
3. She provides general care to patients with a special interest in women's health and paediatrics. She was the only woman doctor at the Forum Medical Centre and mainly saw women patients at that practice. Other than the primary allegations raised in this case, there is no reason to conclude that she is other than a professional and well-qualified doctor, specialising in general practice.
4. On her own evidence, she knew and was familiar with the protocols for preventative screening for cervical cancer during the period that she worked at the Forum Medical Centre. It was not put to her that she only became familiar with the recommendations and protocols for the purposes of this case.

The plaintiff's evidence

1. I have already referred to the plaintiff's background and some of the difficulties she is now suffering. In this part of the judgment, I will focus on her evidence as it is relevant to the question of liability.
2. Firstly, although she says in her evidentiary statement that she first consulted the defendant in 2012 (and continued to maintain that in the witness box), it must be that she first consulted the defendant in 2014. Indeed, her recollection of when she first consulted the defendant as set out in paragraph 19 of her evidentiary statement is generally consistent with her first consultation in 2014.
3. As her evidence is obviously critical to the outcome, I include the relevant paragraphs as follows: "19. During my first consultation with her in 2012, Dr Malhotra referred me for a blood test. It was during the subsequent consultations, when discussing the results of that blood test, that I first informed Dr Malhotra of my history of heavy periods and menstrual cramps. She asked me if I had had a Pap smear. I said no. She told me that my last relationship was a long time ago and that I didn't need one. 20. In response, Dr Malhotra told me words to the effect of: "A pap smear isn't necessary, because you are not currently in a sexual relationship". My last sexual relationship had been in 2009, before I moved to Australia. 21. I subsequently became a regular patient of Dr Malhotra's. From 2012 to 31 August 2019, I saw her approximately once every 3 or 4 months (on average); initially for management of my iron deficiency, also in relation to various other medical issues, as and when they arose. 22. Throughout the whole of that period, I regularly asked Dr Malhotra whether I needed a pap smear, because I knew that they were important. I estimate that I asked Dr Malhotra that question at least 2 - 3 times per year. On each occasion, she told me that I did not need one because I was not sexually active. 23. On each of those occasions, Dr Malhotra responded with words to the effect of: "You don't need a pap smear because you don't have a partner, and you haven't been sexually active." I trusted Dr Malhotra's advice, and saw no reason not to follow it. 24. In around July or August 2018, I consulted Dr Malhotra in relation to heavy periods, and she referred me for a gynaecological ultrasound. When I next consulted with her, Dr Malhotra told me that the results of that ultrasound were "all fine". … 31. On 20 May 2020, Dr Malhotra told me I had tested positive for HPV16. Despite the positive result Dr Malhotra told me words to the effect of: "It might not be anything serious. You can check again in a couple of months." 32. I vividly recall something else that Dr Malhotra said during that consultation on 20 May 2020, immediately after she told me I had tested positive to HPV16: "But we always said you didn't need a pap smear." I am still haunted by those words, to this day." (Emphasis in original)
4. It was put to the plaintiff in cross-examination that it was the defendant who would raise with the plaintiff the need for a Pap smear but the plaintiff maintained that was incorrect and that it was the plaintiff who would raise with the defendant whether she should be having a Pap smear. The plaintiff maintained that the advice she was given about the need for a Pap smear was as set out in her statement.
5. The plaintiff was cross-examined at length having regard to the defendant's notes and records and the defendant's own statement.
6. The plaintiff was taken through most of her consultations with the defendant even though some of the material was not relevant to issues in these proceedings. Through this approach, the defendant was able to demonstrate that, except in respect of the issue of Pap smears, the defendant's notes seemed to be generally consistent with the plaintiff's recollection of what occurred. This was a way of demonstrating that the doctor was not in the habit of making inaccurate notes or notes which were completely inconsistent with that which occurred in the consultation.
7. Having said that, the plaintiff understandably had a poor memory of some of the other treatment recommendations by the defendant. Emphasis was placed on the plaintiff's thyroid condition. Again, the plaintiff generally agreed with what was put to her about the thyroid condition.
8. The plaintiff answered many questions by stating that she did not remember without necessarily denying the propositions put to her. It seemed to me that she was not generally disputing what was put to her about other complaints and treatment. She did occasionally disagree with propositions put to her about seeing other doctors for other ailments, but in general terms, there was not much disagreement as to the plaintiff's visits to the defendant and the reasons therefore.
9. A different position arose in respect of questioning of the plaintiff about matters directly relevant to the issues in these proceedings. Some of the plaintiff's denials of conversations with the defendant are not explicable unless the defendant was simply mis recording discussions or completing her notes based on an incorrect recollection. For example, on two occasions, the defendant records the plaintiff not wanting to find out results of a test. The plaintiff denies ever saying that to the defendant. One such consultation was on 20 May 2020, when the doctor discussed the CST results with the plaintiff and records discussing a HPV vaccination. The plaintiff denied any such discussion took place at all.
10. The effect of the cross-examination was to establish that, other than the questions relating to Pap smears or cervical screening tests or the plaintiff not following the defendant's recommendations or not wanting to hear results, there was little dispute as to the general accuracy of the doctor's notes.
11. The plaintiff has in her mind that the reason she did not undergo cervical screening over that five-year period was because of the advice she received from the defendant. However, the question remains whether that is because she did in fact receive advice that she did not need to undergo cervical screening or whether this is some form of reconstruction by the plaintiff, having regard to the quite significant trauma which she must be suffering and the possible searching for an explanation, considering, in her view, that her general practitioner should have done more.

The defendant's evidence

1. The defendant recalled treating the plaintiff at the Forum Medical Centre but she did not recall any particular consultations in any detail. Her evidence was very much based on her notes and her usual practice. She said that her usual practice was to record notes during the consultation or at the end of the consultation. It was not her practice to come back to her records and record further information at some later time. In a busy general practice this is hardly surprising.
2. As such, the defendant maintains that her notes accurately record what happened during the consultations, albeit they are in summary form. They do not purport to be a record of everything said or the precise words spoken.
3. The defendant says that, contrary to the plaintiff's assertion, she first saw the plaintiff on 22 January 2014. She saw the plaintiff because she was unwell, reference being to her thyroid complaint. She referred the plaintiff for some pathology.
4. The plaintiff again attended on 28 January 2014 and 19 March 2014 with reference to the swelling on the front of her neck. She had been referred to an endocrinologist, Dr Clifton-Bligh, who had previously seen her on 6 February 2014.
5. The first consultation of significance to the issues in these proceedings was on 29 April 2014. The plaintiff reported a range of symptoms. The reason for the visit is described as "abdominal bloating". The plaintiff's complaints are recorded under a heading "subjective" as follows: "pt r/w ha sahd [sic] problem with bloating long time' nil constipation or diarrhoea wt stable'also [sic] anemic has heavy periods last 7-10 days wa sin [sic] a relationship 6/12 just finished he rperiods [sic]"
6. There is also a heading "plan" with three items as follows: "adv reg diet fluids will chekc [sic] blood pap smera [sic] discussed"
7. The defendant says that the words "Pap smear discussed" is a shorthand form of note. She says it means she followed usual practice when discussing Pap smears with a patient. In her statement, she described what happened at that consultation having regard to her usual practice as follows: "29. When a patient first complains of heavy or unusual periods, I may: (a) Undertake a screening for sexual health and potential pregnancy, which is done by asking about recent sexual activity. (b) Ask the patient if the patient has had a pap smear recently. 30. I can see from the records that I have recorded that Athena told me that she had last been in a relationship 6 months previously and had just finished her period. It is likely that I asked Athena to tell me about her recent sexual activity for the purpose of screening for sexual health and to explore whether she might be or recently been pregnant. 31. I have a usual practice when I raise a pap smear with a patient: (a) I will ask if [sic] when the patient last had a pap smear. (b) if a patient says they don't know or they have not, I advise them of the need for a pap smear by saying that they need to have a pap smear to screen for cervical cancer if they have ever been sexually active. (c) I would advise them that they should have a pap smear if they have not had one in the last 2 years and say that this is to screen and detect any abnormal cells or changes of early cervical cancer. I would say that early detection of these changes are fully treatable."
8. When the defendant's expert, Dr Dobler, was asked as to the appropriateness of the usual practice as described, he stated that it was "textbook".
9. The next attendance of relevance was on 20 February 2015. The defendant's notes record the following: "Subjective: pt wanting to post[one [sic] her peirods [sic] by a week same discussed not sexually active options will get script primolut…"
10. The defendant also recalls that the plaintiff consulted her from time to time seeking medication to control when she had her period. This was one such occasion. The defendant says that she recorded "not sexually active" as a shorthand note to reflect that she told the plaintiff about the adverse effect of the medication on pregnancy.
11. In March 2015, the defendant provided a letter for Dr Clifton-Bligh regarding the plaintiff's thyroid problems.
12. The plaintiff next attended on 1 April 2015. The defendant's notes record the following: "Subjective: Pt r/w Travelling again Wanting not get her periods Not sexually active Pap UTD d/w pt did not like primolut sample pack zoely given…"
13. I include the whole notes of that attendance because it is significant in terms of the outcome of these proceedings. According to the defendant, the reference 'Pap UTD' is a note recording that she asked the plaintiff when she last had a Pap smear and that she told the defendant she was up to date with her Pap smears.
14. The plaintiff further consulted the defendant for a range of ailments on four further occasions in 2015, being 1 August, 8 September, 10 September, and 12 December. During the consultation on 10 September 2015, the plaintiff again made reference to heavy periods, and that she was not keen for the oral contraceptive pill or other form of intervention.
15. On 6 January 2016, the plaintiff returned with similar symptoms/problems or complaints. On 20 February 2016, the plaintiff sought a referral to a gynaecologist suggesting that she was unable to see Dr Sue Valmadre to whom she had been referred on 6 January 2016.
16. The plaintiff saw the defendant on four further occasions in 2016 for a range of symptoms including her thyroid and women's health issues. The question of Pap smears or cervical screening is not recorded in the notes. It is the defendant's evidence that it would have been recorded if discussed.
17. The plaintiff saw the defendant only once in 2017, being on 8 April 2017 for a thyroid problem and a further referral to Dr Clifton-Bligh. The plaintiff then saw the defendant on six occasions in the first eight months of 2018, again, mainly for women's health issues. There is no recording of any issue relating to Pap smears or cervical screening.
18. On 8 September 2018, the plaintiff attended again for women's health issues. The defendant's notes record the following: "never had pap - same discussed", "adv to book for same". The defendant says that during this consultation, the plaintiff told her she had never had a Pap smear. The defendant says that she counselled the plaintiff about the need for Pap smears and told her that, if she had ever been sexually active, she needed to have a cervical screening test to screen for the HPV virus, which can cause abnormal cervical cells and eventually cervical cancer. She says that she would have told her that early detection of these changes is fully treatable. She advised the plaintiff to book to have a screening test.
19. On 24 September 2018, the plaintiff underwent a pelvic ultrasound. On 29 September 2018, she returned again to see the defendant to discuss the results of the ultrasound and was given a referral for another ultrasound. The doctor's notes record a number of symptoms, results and examination and include a reference for gynaecological care.
20. On 21 October 2018, she returned seeking a prescription for the contraceptive pill on the basis she wanted to manage her periods. She said she was not in a relationship. The plaintiff further attended the doctor on 20 October, 30 November and 6 December 2018 for unrelated problems.
21. She then consulted the defendant five times in 2019, leading up to her consultation on 31 August 2019. The plaintiff attended for gynaecological problems and to discuss the results of her testing. According to the defendant, the issue of a Pap smear was raised and the defendant recorded in her notes "Pap? Last year - not sure will check reg same". Reg is shorthand for regarding.
22. According to the defendant, she counselled the plaintiff about the need to have a Pap smear and asked when the last time the plaintiff had a Pap smear was. The plaintiff stated she believed it was the preceding year (2018) and told the defendant that she would check. The defendant recorded this in her notes.
23. The defendant arranged for the plaintiff to undergo an ultrasound for evaluation of a menorrhagia and provided a prescription for medication to her. On 27 September 2019, the plaintiff attended to discuss the results of the pelvic ultrasound. Dr Malhotra recommended a further ultrasound to confirm or exclude the diagnosis of a focal endometrial pathology consistent with possible endometrial polyp. On 13 November 2019, the plaintiff underwent a second ultrasound which revealed no obvious focal endometrial pathology. On 16 November 2019, the plaintiff attended to discuss the results of the second ultrasound. The doctor's clinical notes recorded: "pt r/w Results of USG discussed Copy given CST discussed Not in a relationship last 5 years Adv to book for same Reason for visit: Results discussed"
24. The defendant says she discussed the discrepancies between the ultrasounds with the plaintiff and told the plaintiff that she needed to have a Pap smear and recommended a cervical screening test to look for any abnormal pathology and advised her to book one.
25. The defendant says that she told her the test screens for HPV virus, which is transmitted through sexual contact, that can cause abnormal cervical cells and eventually cervical cancer. The defendant says the plaintiff told her she had not been a relationship for five years and the defendant still advised her that she still needed to have a cervical screening test if she had ever been sexually active in the past, which she had. The defendant says she would have said that early detection of these changes is fully treatable.
26. The plaintiff returned to see the defendant on 13 December 2019. The defendant's notes record the following: "pt r/w for CST never had one SI about 8 years ago nil sicne [sic]"
27. The defendant says she asked the plaintiff whether she had a cervical screening test. The plaintiff advised she had never had one. The plaintiff told her she had last had sexual intercourse eight years previously. The defendant says she told her it didn't matter; she still needed to have cervical screening testing even if she had only had sex once.
28. The defendant attempted to perform a cervical screening test during the consultation, but the test was not completed due to pain experienced by the plaintiff. The defendant arranged a referral to have a CST at another clinic.
29. The plaintiff then attended the defendant on a further three occasions in early 2020 for unrelated issues. On 8 May 2020, she had a telehealth consultation during the Covid-19 pandemic. The defendant says she asked whether the plaintiff had undergone the CST and the plaintiff said she had not had the CST. She again advised her to have one and the plaintiff said she would book to have one. The plaintiff underwent a CST on 14 May 2020. On 20 May 2020 she consulted the defendant, and the defendant advised her of the results.
30. The pathology results indicated HPV 16 had been detected and it was recommended she have a colposcopy. The defendant indicated that at this point she did not know whether it was cancer and she need needed to go back to Gynaecare, where she had the CST, to have an urgent colposcopy to investigate. The plaintiff asked the defendant how she would have potentially contracted HPV and the defendant informed her through sexual intercourse, she gave her a prescription.
31. On 22 May 2020, there was a further telehealth consultation, at which time the plaintiff advised the defendant that she did not want to go to a private clinic to have the colposcopy, she wanted to go through a public clinic. The doctor faxed a referral to the Gynaecology Clinic at Royal North Shore Hospital. She underwent the colposcopy on 9 June 2020. The plaintiff consulted the defendant on regular occasions throughout 2020. The plaintiff last consulted the defendant on 9 April 2021. She was not involved in her care at the time of the recurrence of her cancer in May 2023.

Cross-examination of the defendant

1. In cross-examination, the defendant accepted that: 1. it is important to keep accurate notes; 2. she made her notes contemporaneously with the consultation; 3. the notes included a summary of the important points raised between the patient and her during the consultation; 4. if a patient declined or refused treatment or any investigation offered, she would mention it in the notes; 5. that it would be generally good practice to review the early clinical notes before consultation, although that does not always occur; 6. continuity of care between patient and doctor is important, although, again, that does not always occur; 7. she had no independent recollection of the consultation on 29 April 2014 (or, in general, any other consultations but was entirely reliant on her notes); 8. she would have recorded in her notes if the plaintiff had said she had a Pap smear. She said that she raised the question of a Pap smear with the plaintiff, rather than vice versa. She did not recall why she had not recorded in her notes of 29 April 2014 whether or not the plaintiff had actually had a Pap smear. She thought that the plaintiff must have told her she had not had one and that is why she recorded "Pap smear discussed"; 9. the first time she recorded in the notes, "advised to book same" was on 8 September 2018. She did not know whether she offered to do the Pap smear at any earlier time, but she would generally say that she could do it at any time if a patient said that is when they wanted to do it; 10. she generally did about five or six Pap smears a month. She sometimes performed them instantaneously but some patients would book ahead. She felt that some patients had to be mentally prepared to do it and would choose a time that was convenient for them; 11. she acknowledged that screening programs are important and it would be a concern that a patient at the age of 32 had not had one, such that she definitely would have raised it with such a patient; 12. she would generally not assume that the patient was under the care of another general practitioner, unless the patient told her that they had done a test with somebody else; 13. she assumed that the plaintiff had seen somebody else for a Pap smear because the plaintiff told her in 2015 that her Pap smears were up-to-date and she knew that she had not performed it. She did not recall whether, thereafter, she assumed the plaintiff was under someone else's medical care except for the Pap smear. She would not know; 14. she rejected the idea that she would not have asked about whether the plaintiff had had a Pap smear (as she did in 2018) if she thought the plaintiff was under someone else's care. It was part of her normal practice to do so; 15. she accepted that she did not know when the plaintiff had the Pap smear prior to April 2015 as her notes do not record it; 16. she reiterated that as she had not given the Pap smear, she thought the plaintiff would be seeing someone else for that and the plaintiff would know when the next date was to have another Pap smear; 17. she accepted that reminders were important in the context of screening programs. If she had performed the Pap smear, she would have put a reminder in her system but, as she did not undertake the test, she did not put a reminder in; 18. she accepted that she did not know in 2014 or in February 2015 whether the plaintiff had had a Pap smear. She accepted that she did not tell her in February 2015 that she should have one. She did not take any steps to book her in for a Pap smear. Her practice was to remind people every now and again about the screening test but not every consultation as she believed that once patients are aware they make an informed decision when they want to have it; 19. she said she raised the Pap smear again on 1 April 2015, not vice versa. She raised it on this occasion because they were talking about gynaecological and sexual health. She raised the issue opportunistically when it was appropriate to do so. If the patient was consulting her about sexual health, she would raise it. She says she did check with patients from time to time whether they had had a Pap smear but she said that the medical practice that did the Pap smear had the responsibility of taking care of that set up; 20. she accepted there were plenty of opportunities for her to ask whether the plaintiff had a Pap smear having regard to the number of attendances on her. In particular she "could have"' raised it in 2016. There was no impediment to do so. She accepted that she could have raised it in April 2017. She acknowledged it had been two years since she had been informed that the plaintiff had a Pap smear. She acknowledged she could have raised it in February 2018 and at a number of other consultations in 2018; 21. she was taken to the September 2018 consultation. She agreed that she was concerned that the plaintiff told her she'd never had a Pap smear at that time. She disagreed that that would increase her risk, as the risk of contracting cancer would be the same whether she had or did not have a Pap smear; 22. she accepted that the plaintiff was under her care as of 8 September 2018 in respect of gynaecological or women's health issues and the issue of having a Pap smear. She said that is why she told the plaintiff to book in with her to do it. She acknowledged no such booking was made. 23. She rejected the proposition that the plaintiff might not have listened to what she was told in September 2018. She did not think the plaintiff might not have received the advice, particularly as she had given it a few times by the end of 2018, but she acknowledged that she could have raised it again and she could have given further advice and she could have taken further steps to ensure that the patient booked in for the Pap smear with her. She also acknowledged that she could have put the plaintiff on the practice reminder system for cervical screening. The only reason she did not do so was on the assumption that someone else was looking after her testing regime. She explained that she believed what her patients tell her; 24. she rejected the proposition that there was a protocol to remind patients to participate in a screening program, albeit once they had participated and were in the system they would receive a reminder; 25. she accepted that she could have said, "let's do it now", and sometimes she did say that but it is still up to the patient; 26. she said that she would have recorded if the plaintiff had declined to test but she did not accept that the plaintiff had ever declined the test in the sense of saying she would not have it; 27. she accepted that she could have referred the plaintiff to a gynaecologist for the tests if that is what the patient wanted. She accepted that she could have done this if the patient declined the test but she did not accept that the patient had declined the test directly through her; 28. she rejected the propositions put to her (the plaintiff's primary case) to the effect that she proceeded on the basis that if the patient was not sexually active she did not need to have cervical screening and that is what she actually told the plaintiff; and 29. she rejected the proposition that the first time she advised the plaintiff to book a screening test was 16 November 2019. She accepted that she had not checked with the staff as to whether the plaintiff had booked in for a routine screening check.
2. The defendant was a considered and credible witness. Despite the plaintiff's primary allegations, it was not part of the plaintiff's case that she had altered the medical records or even that she had mis recorded things.
3. There was little questioning on the plaintiff's primary case. Most questions were directed to the alternative case. Much of the defendant's evidence was based on her medical records rather than any precise recollection of what was said at any particular time. No reason was advanced as to why the defendant might not be telling the truth. Whilst Mr Toomey SC obtained many admissions as to what the defendant could or might have done and as to what the notes do not show, nothing emerged which might tend to suggest that the defendant's notes were generally inaccurate or the that the defendant had failed to record visits from the plaintiff or failed to record discussions or consultations at different times.

Development of the cancer

1. Prof Jonathan Carter on behalf of the plaintiff and Dr David Nuns on behalf of the defendant prepared reports and met in conclave and prepared a joint report dated 27 March 2024. It is not necessary to review their evidence in great detail. In terms of the development of the plaintiff's cervical cancer their opinion is: "The experts agree that the plaintiff was diagnosed with nose positive Stage IIB cervical cancer in June 2020 (FIGO 2009 staging system). Based on the experts' experience, it is likely that a Stage IB cervical cancer was present for some 12 months prior to this; that is, from on or around June 2019. It is likely then that a Stage IA cervical cancer was present some 12 months prior to that date; that is, from on or around June 2018. It is thus likely that precancerous lesions, that is CIN or dysplasia, were present for some five to 10 years prior to the above date; that is, from sometime within the range from June 2008 to June 2013."
2. They also agreed that had any precancerous changes been detected the outcome of the screening tests would have been an outpatient excision of the cervix and would have resulted in a high chance of cure for the precancerous change and cancer would have been avoided.
3. If a stage 1 cancer had been diagnosed around June 2018, a local cervical excisional simple hysterectomy could have been performed.
4. If early stage 1b cervical cancer had been diagnosed around June 2019, a radical hysterectomy could have been performed. It is again expected that the plaintiff would then not have the prognosis which she currently faces.
5. If the plaintiff's disease had been diagnosed in a precancerous phase, the specific five-year survival rate (meaning long-term) would be 100 per cent.
6. Had it been diagnosed at stage 1, the survival rate would have been 95 per cent, and at stage 1b it would have been 75 to 80 per cent.
7. It is a sad fact that if appropriate cervical screening had taken place at any time up to June 2019, the plaintiff would have had good prospects of survival. It is just that the type and complexity of the treatment would have been different depending on when the cervical screening took place, and the precancerous changes or evidence of cancer was discovered.

Expert evidence on the practice of a general practitioner

1. It is not necessary to say anything further about the plaintiff's primary case, as a doctor who advises a patient that she does not need to have a Pap smear because she is not sexually active at the time, (as opposed to never having been sexually active) would plainly be negligent.
2. In those circumstances, the expert evidence, meaning both the reports and cross-examination were more directed at the alternative case, which really proceeds on the basis that the defendant said at least something about the need for Pap smears to the plaintiff in April 2014 and that something was said in April 2015, which led the defendant to believe that the plaintiff was "up to date".
3. Even assuming those two matters, the plaintiff still maintains that the defendant did not do enough at those two consultations in terms of advising the plaintiff and satisfying herself that the plaintiff had had a Pap smear and when she had had it.
4. The plaintiff's expert, Dr Lynch, offered opinions in his report dated 23 October 2023 based on assumptions. Some of those assumptions were not made out. Some of the opinions in his report were not in contest such as his opinion that during the period 2012 and 2019, the plaintiff should have been advised to have a Pap smear and offered a test. The defendant says she did so.
5. In oral evidence, Dr Lynch agreed that it was a standard part of a general practice in managing women's health to see that cervical screening is undertaken in a timely fashion and then to become aware of the results.
6. Dr Lynch emphasised that the patient's history determines whether she should be offered a Pap smear and whether the GP should ensure that it was current. He agreed it would be important to know when the last test was performed and what the result of the test might be. Further, once the first test was performed, the patient would be routinely put on a recall reminder system to have the test repeated at appropriate intervals. He would expect the doctor to enquire as to when the test had taken place and what the results were.
7. He said there are ways that a GP can ascertain whether a previous test had taken place and what the results were including the government registry and, if it was done privately, the clinic would have the result. He agreed that if the patient was unable to indicate when the last test was, it would be standard practice for general practitioners to consult the register. He agreed that when the doctor is unable to elicit all the appropriate information from the patient, the doctor ought to recommend that the patient undergo such a test.
8. In respect of the period 1 April 2015 to 8 September 2018, Dr Lynch agreed that, in the exercise of due care and skill, it was incumbent upon the defendant over that period to do something about seeing that the patient had testing performed. The Pap smear should be followed up and checked as part of a women's health assessment.
9. The patient should be reminded and recalled at appropriate times. He said it was not competent medical practice that the issue was not raised at any of the consultations between 1 April 2015 and 8 September 2018. He said testing should have been offered to the plaintiff no more than 2 years after the defendant was told she was up to date.
10. He then said that the consultation of 8 September 2018, where the plaintiff revealed that she had not had a Pap smear, was a red flag consultation. In the circumstances, the plaintiff was at risk and the defendant should have ensured as best as possible that the Pap smear was done promptly.
11. Ideally, the GP should ensure that the Pap smear is booked with them. Further, in circumstances in which the GP had not done a Pap smear but the plaintiff was being referred to a gynaecologist for the purposes of undergoing an ultrasound, a reasonably competent GP would have requested that the gynaecologist do the Pap smear. He did not think it was reasonable for the defendant not to include a reference to having a Pap smear in the referral to Omni Gynaecological Care in September 2018. Further, he said a GP must follow-up the plaintiff. He said that the failure to follow-up in seven consultations after 8 September 2018 did not accord with competent general practice. They were missed opportunities to ensure that the plaintiff had the Pap smear.
12. In cross-examination, Dr Lynch was taken to the standards for general practice. It was suggested to him that those standards require the practice, rather than the individual doctor, to have in place a system for following up in respect of preventative screening. He agreed the standards were directed towards the practice itself.
13. He also agreed that the obligation of the doctor was to give information or advice or to warn depending on what is being considered, but the patient had a right to determine for themselves what treatment they would have or what investigations they would have and whether to screen.
14. He agreed that the guidelines differentiated between diagnostic and screening. Screening might take place when there are no symptoms whereas diagnostic is the investigation of a condition that is present. Dr Lynch was cross-examined on the suggestion that the plaintiff had had a Pap smear with another doctor. He was questioned as to whether he considered the duty of a second doctor treating the patient for other issues was to supervise the first doctor. He maintained that the second doctor did have a duty to oversee what the first doctor was doing, although he said he really meant that there was an obligation to check that it had happened.
15. He further accepted that, in circumstances in which a doctor was told that the patient was up to date with her Pap smear, all the GP could do in those circumstances was to continue to remind them of the availability of preventative screening.
16. He accepted that, in circumstances where there were no symptoms needing to be investigated, it was a matter for the patient as to whether the test was carried out, provided they are given the information. All the doctor can really do is remind them of the availability of the screening and follow-up.
17. Importantly, the doctor tended to agree that the type of general advice that the defendant said she usually gave was appropriate. Further, he agreed that Pap smears or cervical screening tests could be done at a number of different places including at a general practice, specialist community health centre, woman's health centre, family planning clinic or sexual health clinic.
18. Dr Lynch also agreed that responsibility for having a test was a conjoint responsibility in the sense that, if the patient had been given the information, the patient was entitled to take time to make a decision themselves whether they wanted to have the test. He also accepted the obligation would be different if the patient, after being giving the relevant information, does not engage the doctor for the purposes of having a Pap smear.
19. He opined that, in some circumstances, the doctor might place the patient on a recall list even if the patient has indicated that the patient did not want to have the test, albeit he accepted that there is no guideline or standard that required them to do so.
20. Importantly, the doctor accepted (based on the assumptions put to him, which in my view are consistent with the facts of this matter) that the defendant did not have to do anything more in the period 2014 to 2015 than she did: Q. Why in April 2015; I understand your concern in 2018 when the patient tells the doctor she hasn't had one, but in 2015 she, I want you to assume, she conveys information to the patient (as said) from which the reasonable inferences can be drawn that she'd (1) had Pap smears, and (2) that they're current, so both as to actuality, and currency, do you understand? A. Okay, I accept that. Q. Now you'll recall that she's not being investigated for any symptoms; this is not diagnostic or case finding, even though I know you don't like that term, but the doctor taking an opportunity to raise with the patient preventive screening? A. Sure. Q. Now it's inherent, isn't it, in the context of what I've taken you to that the number of different places that a patient could have had that Pap smear performed, that the patient has seen someone else? A. Yes. Q. And I want you to assume the doctor has not been asked by the patient to either perform a Pap smear, or to take over management of the Pap smears? A. Okay. Q. Doctor, the GP doesn't have to do anything more in those circumstances, and I'm going to suggest to you the GP doesn't have to do anything more in those circumstances for the following reasons, and you can tell me if you agree or disagree. One, the GP is following guidelines suggesting that they advise patients of the availability of preventive screening? A. Sure. Q. All GPs are required to follow those guidelines? A. Yeah. Q. Doesn't report any particular symptom that the doctor has investigated‑‑ A. Yes, that's‑‑ Q. ‑and the patient has not asked her about managing her preventive screening? A. Yes. Q. She's not engaged the doctor for that purpose? A. Yes. Q. In the circumstances where the GP tells the patient about the availability of preventative screening, and assuming she's been given the information, and the patient conveys to her information as to the actuality of having done it, and the currency of it, that particular GP has done nothing more than just tell the patient of the availability of preventive screening? A. Okay Q. Do you accept that? A. Yes, and the ‑ explain to them the timeframe between when the last one was done, and the next one should be done, yes. Q. Nothing else needs to be done? A. Okay, that'd be fine, yes. Q. Do you accept that? A. Yes. Q. Doesn't have to get a copy of the results, because someone else is managing it? A. Okay Q. Do you accept that? A. Yes.
21. Dr Lynch did not agree with the propositions put to him in respect of the period 1 April 2015 until 8 September 2018, maintaining his view that raising it once was not enough. He maintained that view in part because he said that the defendant was the holistic practitioner and was obliged to make sure that the patient was being properly managed, even by someone else. The doctor was obliged to keep the information current even in circumstances in which the GP might believe that some other doctor was responsible for dealing with that problem. He continued to maintain that, despite the fact that the patient had told the doctor that the Pap smear had been undertaken, the doctor would need to know that had happened, suggesting that if the GP was the last person in the line, it is that GP's job irrespective of whether someone else has provided earlier treatment.
22. When put to him that Dr Dobler had a different view, he would not accept that the alternative view represented a reasonable body of opinion. He said it might be another body of opinion, but he did not think it was reasonable not to do the things that he suggested.
23. Dr Lynch also accepted that the Standards for General Practice, apply to the practice rather than the doctor (in terms of following up). He agreed that there were no other written guidelines or standards which supported his view about the need for a GP to find out whether a pap smear had been done and follow-up what some other GP might be doing.
24. He maintained that even if the patient had said that she had had a Pap smear 6 months ago with another doctor, the GP should follow that up and should tell the patient she was going to follow it up and then come back to her to talk about that. Again, Dr Lynch was not able to point to any standards or guidelines which mandates that which required such an approach.
25. He also accepted a reasonable number of general practices would have a different way of engaging in that process.
26. Dr Lynch also accepted that following up or checking with other doctors could not be done without the patient's consent.
27. Dr Lynch also agreed that he was wrong in suggesting in his report that it was necessary to have two normal cervical screening tests before the 5 year period applied.
28. Dr Dobler prepared a report dated 2 March 2024. In his report, Dr Dobler opined that the advice given by the defendant on 16 November 2019, 13 December 2019, 8 May 2020, for the plaintiff to obtain a CST was consistent with peer professional practice of a general practitioner at the time. He emphasised that encouraging the plaintiff to enter into a screening program was a vastly different proposition than following up a symptomatic patient to ensure they had appropriate investigation and treatment.
29. Dr Dobler considered that the defendant took appropriate steps to ensure that the plaintiff underwent cervical screening between 2014 and 2019. He observed that this matter involved a doctor attempting to get an asymptomatic patient to engage in a screening program rather than encouraging a symptomatic patient to seek investigation or treatment. In the circumstances, he did not think the level of risk of the plaintiff developing cancer was greater than the general population.
30. In oral evidence, Dr Dobler said he was not aware of any guideline, protocol or otherwise which required a doctor who had given advice about screening to bring that topic up again with that patient. That is, that there is nothing in writing which suggests when a doctor must raise the need to have cervical screening having already given the patient advice about it. Dr Dobler said he would not be critical of a doctor who did not remind a patient another time, having originally raised it. He said that it would be prudent to ask about preventive health measures but there is no prescription as to frequency, although every couple of years is not unreasonable.
31. Having considered assumptions about the plaintiff attending in 2016 and 2017, he said he did not have any criticism about the defendant not raising the need for Pap smear in 2016 and 2017. He thought it would be prudent to raise it in 2018 and 2019 as the doctor had done. He accepted that what the doctor had done was reasonable care in all the circumstances, pointing out that the patient has ultimate autonomy.
32. I took the doctor's opinion to be that, at least during evidence in chief, that he thought that not raising the need for a Pap smear in 2016 and 2017 did not demonstrate a failure to exercise reasonable care.
33. With reference to the 15 April 2015 consultation, he agreed that the doctor would need to know when the testing had taken place so as to determine when the next test was due. Yet because the patient had referred to being up to date, the inference was that she was being treated elsewhere and it would not be critical in his thinking. That is, as the patient was being treated elsewhere, the doctor was entitled to assume that the patient was under the care of another general practitioner for that purpose.
34. Whilst he accepted that, in some circumstances, a doctor could not rely on the patient receiving prompts and reminders from another source, he said that would be an extremely rare event. He reported that patients receive recalls but do not act upon them, so it is prudent to periodically remind them every couple of years.
35. He was taken to the one consultation in 2017. He agreed it would be prudent to follow-up but said it would depend on the nature of the consultation, pointing out there is a whole raft of preventative health measures that GPs engage in.
36. He agreed that it would be advantageous to offer to do a Pap smear at the time of consultation so the doctor would then know what had occurred. He agreed it would be of some concern to know that a 37-year-old patient had not ever had a Pap smear. In those circumstances, he thought the patient might need some time and space, but he would otherwise ask them to reschedule. He agreed the only impediment would be the patient's acceptance.
37. He also agreed that, if he had been given conflicting information by the patient, that would raise a greater concern and give him further cause to follow-up with the patient. He agreed that following the consultation on 8 September 2018 (where the defendant was informed the plaintiff had not had a Pap smear), the next consultation on 29 September 2018 would have been opportune to follow it up.
38. Similarly, other consultations in 2018 and 2019 would have presented the same opportunity. Ultimately, the doctor agreed, based on the propositions put to him, that he would be following up with the patient within months or a year: "Q. I want to suggest to you that a doctor approaching this particular situation prudently ‑ and I say this particular situation, including in it the fact that the doctor had previously understood the patient to have had a test, and later learned that she had not. And in circumstances where the doctor had been advised the patient to have the test, expected that to be booked with her to occur, and where it had not occurred by the time any of those consultations occurred, then at some point during that period, prudence dictated that the GP simply raise with the patient the fact that it's not happening, and you should do it? A. So, I guess my response would be that, in an asymptomatic patient, we fully explain that, you know, you require a screening, that, you know, it would be sensible to have a screening test. At some point, when the patient hadn't presented for that, I would inquire about it. I can't give you a specific number on when I would inquire, but you know, given that the patient had no symptoms, I think that, you know, within months or a year would be acceptable. HIS HONOUR Q. Sorry, within months or a year of what? A. Of the initial advice to have the Pap smear done, or to have the cervical screening. TOOMEY Q. And that's even in circumstances where you knew they'd never had one? A. Yes. So, I mean, the reason there's a five‑year gap in between having cervical screenings is generally a, you know, a very slowly progressing thing. So I would, you know, after having that discussion with the patient, I would allow some time to pass before raising it with them again. You know, personally I would probably raise it again within some months. Q. Doctor, there's a five‑year gap after there has been a normal CST result, isn't there? A. That's correct, yes. Q. But in the case of a patient who's never been screened, you cannot know, as their treating general practitioner, whether there is any underlying disease process until such time as it happens? A. No, you can't. Q. So what's the five years got to do with your previous answer? A. Well, the five years is the ‑ you know, from someone, for example, has a negative screen, we say that ‑ I understand the premise of your question, that we don't know what her underlying state is. But I guess I go back to my point that the patient was asymptomatic, and I'm trying to encourage her just to enter into a screening program. I don't view that there's absolute urgency to enter into that program. Q. It's becoming fairly pressing, isn't it, by the age of 37, if they haven't had it done at all? A. It was developing ‑ again, it's quite a rare tumour, but you know ‑ it is certainly a priority for this patient, but ultimately it's the patient's decision whether to undergo it, after having had that explanation. Q. The risk is ‑ I think you've already accepted ‑ if indeed there is such an underlying process taking place, and they're not screened, is potentially catastrophic? A. That's true. Q. That's the reason why you would undertake it within a few months, as you said? A. Generally within a few months, yes." … "Q. If you, for any reason, wouldn't or couldn't do it there and then, then the next prudent course would be to advise them to book in to do it? A. That's correct. Q. As in, you're expecting that that booking will be with you. If you saw them eight months later and they still hadn't done that, then at that time, a prudent general practitioner would raise it with them, would they not? A. Again, they may or may not, depending on what the type of presentation was on 20/2, so there's often just not the time to raise every type of screening at every consultation. Q. Where Pap screening had previously been raised, no other screening, the Pap screening had specifically been raised and the doctor knew that the patient had not had it done. At the next consultation, some eight months later, it would be prudent, would it not, if the patient hadn't booked with you to say, "Have you had it done"? A. Yeah, I think that's not an unreasonable suggestion. Q. If you assume that that consultation concerned discussion about wishing to postpone her period, that would fortify you in that view, wouldn't it? A. I don't think that that would play a part in my decision in that respect. They're quite separate issues."
39. There was considerable agreement in the expert evidence. The major area of disagreement related to what the defendant should have been doing in the particular circumstances of this case, on the assumption that she had provided information about the need to have a Pap smear in April 2014 and had been informed by the plaintiff in April 2015 that the plaintiff was up to date with her Pap smears.
40. Dr Lynch's opinion appeared to be that a GP in the position of the defendant would still be endeavouring to check on the information provided in April 2015, asking when and where it took place and seeking consent to access the records and results.
41. Dr Dobler focused more on the plaintiff's right to privacy and on the idea that it was not up to the defendant to be in some way intervening in what the plaintiff was doing elsewhere. In terms of follow-up, there was general agreement that it would be appropriate for a general practitioner in the position of the defendant to be following up or reminding the patient about the need to have a Pap smear.
42. If the doctor was aware that the patient had not had a Pap smear and had recommended one, the doctor should be following up within months to make sure that it took place. If on the other hand, the doctor was informed that the patient was up to date with a Pap smear then it would only be necessary for the doctor to follow-up or remind the patient within that two-year interval, depending on when the last Pap smear took place. Having said that, despite Dr Dobler emphasising the prudence of following it up within two years, he also tended to agree that the follow-up time might vary and might depend on the nature of the consultation and reason the patient was seeing the doctor.
43. There is a difference of opinion as to the relevance of the standard which applied to practices following up recommendations or treatment and the obligation of a general practitioner in the position of this defendant working for the practice to follow-up particular patients. In my view, the standard is referring to the medical practice.
44. If it applied to individual doctors working in the medical centre, it would mean that a doctor who saw a patient once and recommend a Pap smear would need to personally follow up that patient at some later time to make sure she had followed the advice. That is unrealistic.
45. Further, Dr Lynch accepted that his view as to what a GP should be doing, even in circumstances in which the patient indicated that she had a Pap smear elsewhere, might be contradicted by another body of opinion, albeit he did not think that alternative body of opinion would be reasonable.

The duties of the defendant

1. The doctor-patient relationship gives rise to a duty on the part of the doctor to exercise reasonable care in providing services to the patient. The doctor is not the guarantor of the patient's safety or health but is required to perform her services in accordance with the practice, procedures and standards of ordinary competent general practitioners.
2. All duties of care may be discharged by the exercise of reasonable care (Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330). What may be reasonable must depend on the particular circumstances of the doctor and patient relationship. This case is no different. A doctor exercising reasonable care in the position of the defendant was required to properly treat, inform, warn and recommend matters within her skill or expertise, or more precisely within the expertise of a doctor in her position.
3. In Rogers v Whitaker (1992) 175 CLR 479, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ explained the duty of care owed by a medical practitioner as follows at 483: "The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case."
4. The Court also observed at 489 that: "…[W]hether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice…"
5. This is not a case about a failure to warn of risks associated with any particular treatment but rather a case about a failure to provide proper treatment. In the context of a medical practitioner, treatment can include provision of information about health risks and investigations or tests which would help reduce or eliminate health risks. Treatment can include carrying out preventive tests or screens.
6. There have been cases in which courts have held that there was a duty to follow-up but there is no so called independent "duty to follow up" (see Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1984] AC 871 at 893 per Lord Diplock).
7. The "duty to follow up" was considered in two cases, being Kite v Malycha (1998) 71 SASR 321 ("Kite") which was closely followed by Tai v Hatzistavrou [1999] NSWCA 306 ("Tai").
8. In Kite, the plaintiff had been referred to the defendant by her gynaecologist after the discovery of a lump in her left armpit. The plaintiff attended an appointment during which the defendant performed a biopsy on the plaintiff to obtain a skin sample of the left armpit. The plaintiff was asked to ring the practice later that day for the results of the testing of that sample. A follow up appointment with the plaintiff was scheduled.
9. The plaintiff neither rang the practice nor attended the appointment.
10. Due to an unexplained administrative error, the pathology report from the analysis of the sample was not brought to the attention of the defendant. Both the plaintiff and the defendant remained ignorant of the pathology results until 1997, by which time the plaintiff had developed breast cancer.
11. In finding for the plaintiff, Perry J held that, having ordered the testing of the sample, the defendant was obliged to follow up on the pathology report and inform the plaintiff of the outcome, irrespective of the plaintiff's failure to telephone his rooms or attend the follow up appointment.
12. His Honour explicitly rejected the argument that the responsibility for following a doctor's advice rests solely upon the patient.
13. Whilst the duty recognised in Kite was limited to recognition of an obligation to follow up on the outcome of testing which a doctor had himself arranged, the decision in Tai recognised that a doctor may also have a duty to follow up on referrals for treatment.
14. Tai concerned the failure of a doctor to follow up on a referral he had given the plaintiff for a "D&C". The defendant was a specialist gynaecologist who the plaintiff saw regularly. The plaintiff had a family history of cancer and was anxious that she too may develop cancer at some stage in her life. The defendant had performed two prior D&C operations on the plaintiff, which were done as a precautionary measure. These operations enabled the taking of tissue from the uterus to check for signs of cancer.
15. The defendant gave the plaintiff an admission form for a "D&C" to lodge at the local hospital.
16. The plaintiff lodged the admission form but the hospital never contacted the plaintiff to arrange for her to undergo the procedure. The defendant did not become aware that the plaintiff had not undergone the operation until the plaintiff attended an appointment with him sometime later. At that point, the defendant arranged for the plaintiff to undergo a D&C with some urgency. That D&C revealed that the plaintiff had developed ovarian cancer.
17. The New South Wales Court of Appeal Court (per Priestley, Handley and Powell JJA) held that the defendant, having provided the plaintiff with a referral to undergo the D&C, was obliged to ascertain whether the plaintiff had, in fact, undergone the procedure, to obtain the results of that procedure and to advise the plaintiff accordingly.
18. Priestley JA explained the scope of the duty as follows at [75]: "It would seem that all of the cases referred to in the text are, to a greater or lesser degree, distinguishable on their facts from those in the present appeal. They appear however generally to support the view that, depending upon the precise facts of the relationship between the doctor and the patient, when a doctor is treating a patient for what may be a serious health problem, and the doctor thinks it necessary, even if only for prudential reasons, that the patient should submit to a particular surgical procedure, then the doctor has a continuing duty to advise the patient to submit to the surgical procedure, so long as the doctor/patient relationship is on foot. This does not mean that the doctor should seek to impose the doctor's view upon the patient against the patient's will, but it does mean that the doctor has a duty to keep the doctor's opinion and advice before the attention of the patient so that the patient can decide upon the patient's course in light of up to date knowledge of the doctor's opinion."
19. It is notable that in both Kite and Tai the Court accepted that there was an obligation on the doctor to follow-up in circumstances in which the doctor was treating the patient for a potentially serious health problem that was known or suspected by the doctor.
20. In this case, the plaintiff did not present with symptoms at any time (until it was too late). Neither Kite or Tai is authority for the proposition that a doctor, having advised the patient about the need for and reasons for preventive screening, should follow-up the patient to ascertain whether and when the patient had undergone such preventive screening.
21. In Young v Central Australian Aboriginal Congress [2008] NTSC 47 ("Young"), a medical practice which specialised in the treatment of Aboriginal people was held liable for failing to follow up on preventive screening which had been booked for a patient through the practice. The patient had attended complaining of stress and chest pains. After an examination, the doctor referred him to a specialist and booked him a cholesterol test at the practice.
22. The patient failed to attend both the cholesterol test and the specialist appointment. The patient did attend the medical centre on four or five occasions after his consultation but on none of these occasions was he asked about his failure to attend the cholesterol test or the specialist appointment. The patient later died of coronary thrombosis.
23. The Court per Thomas J, held that the failure of the medical practice to follow up on the patient's non-attendance at the cholesterol test appointment amounted to a breach of its duty of care at [163]-[166]: "163 In the circumstances of this case where it was not unusual for patients of Congress to fail to attend for appointments, I have concluded that there was a failure on the part of Congress which amounted to a breach of duty of care as defined in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48… 164 Congress now has a computerised system which is able to pick up patients who fail to attend appointments. However, at the relevant time, Congress essentially relied on picking up a patient who missed an appointment when that patient next attended Congress. 165 I have concluded that the first defendant had a responsibility to put administrative procedures in place for the situation that arose in this case where a patient fails to attend for a fasting cholesterol test which is part of the treatment plan for a potentially serious condition. 166 I have concluded that because of the administrative system that existed at that time within Congress, Dr Boffa was not responsible for following up the deceased's failure to attend for a fasting cholesterol test."
24. In Young, the individual doctor was not held liable but the medical practice was on the basis that the practice did not have in place a proper system for following up patients. By the time of the hearing, it had put in place such a system. The practice was held liable because of the absence of such a system rather than because the individual doctor failed to follow-up the patient at some specific time.
25. In Koziol v Anasson [1997] FCA 803, the Federal Court considered whether a doctor who was not the plaintiff's usual general practitioner had a duty to offer a Pap smear to a patient who was not symptomatic. The Court held that the doctor did not, but that decision was based on the practice with respect to cervical screening at that time (1987). The Court left open the question of whether a different result might have ensued based on greater knowledge and different practices by the time of the hearing. The defendant relies on this case as supporting its defence. I doubt that it does.
26. Similarly, those cases in which there have been findings that the duty of care imposed on a doctor included a duty to follow-up are fact specific and involve the doctor being aware of the patient suffering symptoms which may be potentially serious.
27. As Forrest J observed in Grinham v Tabro Meats Pty Ltd [2012] VSC 491 at [141]: "…the question of advice and recall cannot be determined on a generic basis, it must be context specific: all the circumstances must be considered such as the patient's symptoms (if any), presentation, potential risk, comprehension of advice and history of compliance."
28. I accept that a general practitioner treating a woman for what may be generally described as women's health issues should include discussion of preventive cervical screening as part of the treatment information and recommendations. Further, it must be that such information and recommendations are appropriate and consistent with guidelines and government recommendations for preventative screening. Yet, it does not seem to me that a doctor who sees a patient for, for example, a sore neck, must give advice to the patient about cervical screening.
29. Whether such advice must be given and whether a general practitioner might be required to follow-up the patient or repeat the advice or make further recommendations must depend upon the particular relationship between the doctor and patient having regard to a number of factors including: 1. whether the doctor is the patient's regular GP or whether the patient consults the doctor generally on a range of health issues, such that it would be apparent to the doctor that the patient is relying on the doctor for general health advice; 2. whether it should be apparent to the doctor that the patient is seeing the doctor for specific women's health issues or gynaecological problems or whether the doctor is aware that the patient is seeing someone else for both types of health problems; 3. whether there is something about the patient which would suggest to the doctor that the patient may be symptomatic or that the patient may be vulnerable or that the patient may not have understood advice or that the patient exhibited unwillingness to follow the advice; 4. whether there is a standard, guideline or accepted medical practice which suggests that in the particular circumstances, advice should be given in a particular way or a recommendation should be followed up or treatment advice should be followed up; and 5. what information is provided to the doctor by the patient in terms of what the patient had done or intended doing or did not want to do. It must be remembered that the patient has a right to privacy. Whatever the scope of the duty of care imposed on a doctor, it is the patient's choice whether to undergo treatment, follow advice, or, such as in this case, undertake preventative screening.
30. In the end, a doctor can only be liable to a patient if the doctor has failed to act reasonably, that is with reasonable care. What is reasonable must depend on all the circumstances, including those matters to which I have just referred.

The plaintiff's primary case

1. I will firstly deal with the plaintiff's primary case. The plaintiff's primary case is based on that which is asserted by the plaintiff in her evidentiary statement (at [20]-[23]) and pleaded as the material facts in the amended statement of claim.
2. There are really three aspects to it being that: 1. when the plaintiff first consulted the defendant (said to be 2012, but actually in 2014), or near enough to first consulting her, the plaintiff asked the defendant about the need for a Pap smear and was told it was not necessary because she was not currently in a sexual relationship; 2. throughout the whole period between 2014 and 31 August 2019 she regularly asked the defendant whether she needed a Pap smear because she knew they were important. She asked the defendant this two to three times a year and each time she was told she did not need one because she was not sexually active; and 3. even during the consultation of 20 May 2020, after the defendant had informed the plaintiff that she had tested positive for HPV 16, the defendant said, "but we always said you didn't need a Pap smear".
3. I do not accept that the defendant gave that advice for the following reasons. 1. The defendant is a very experienced general practitioner with expertise in women's health. It is improbable and implausible that she would have given such advice because it is so obviously contrary to the Commonwealth government protocol and recommendations, contrary to the very purpose of cervical screening and inconsistent with what must be well-known as to when and how cervical cancer develops. 2. Such statements are inconsistent with and quite contrary to the defendant's medical notes. The plaintiff does not say that the notes are concocted or generally inaccurate. It was not put to the defendant that she attended on other occasions (not mentioned in the notes). It was not put to the defendant that the plaintiff used to come in two or three times a year and asked whether she needed a Pap smear. 3. Because the defendant's note of 28 April 2014 records only "Pap smear discussed", it is possible that the defendant gave the advice the plaintiff suggested but such advice would be inconsistent with the defendant's general practice in advising on the need for Pap smears and inconsistent with what the defendant described as her knowledge as to the need for Pap smears. 4. Further, and of most importance, is the entry for 1 April 2015 of "Pap UTD". It was not suggested that the defendant simply made up that note, or mis recorded what she was told. That note could only be a reference to the defendant being told by the plaintiff that her Pap smears were up to date, meaning she had had one at some stage in the past. As I accept that the defendant knew as of April 2014 that the plaintiff had not a Pap smear, hence leading to the discussion about the need for a Pap smear, it must be that a statement by the plaintiff a year later that she was up-to-date would mean that she had had a Pap smear. This record cannot sit with any part of the plaintiff's primary case. 5. The plaintiff's evidence that she regularly asked the defendant about the need for a Pap smear every year and was always told that she did not need to have one is inconsistent with the record of the consultation on 1 April 2015 that records the plaintiff saying she had had one rather than asking the doctor whether she needed to have one. 6. Similarly, the plaintiff's statement that she was regularly told she did not need one is inconsistent with the doctor's notes of the consultation on 31 August 2019, "Pap last year not sure will check regarding same". Again, this is the plaintiff telling the doctor something, that is, she had had the Pap smear or at least thought she had a Pap smear. 7. Further, the notes do not record these allegedly regular visits to the defendant and discussions (3 or 4 times a year) about pap smears. For example, the plaintiff only saw the doctor once in 2017. 8. There was nothing about the defendant's evidence or the way she answered questions in cross-examination which would tend to suggest that she was an unreliable witness or that she was simply not telling the truth to protect her position. Although the defendant was herself stressed by the situation, that is the plaintiff being in dire circumstances and attributing responsibility to her, she gave evidence in a considered way and made concessions when it was appropriate to do so, but maintained her overall position that her conduct, advice, treatment and follow-up was consistent with proper and competent professional practice. 9. No explanation was put forward by the plaintiff (by that I mean the plaintiff's legal representatives) as to why the defendant would have given advice which was plainly wrong over and over again. Mr Toomey SC raised the prospect of a misunderstanding or the patient not understanding the advice being given, and whether the defendant had considered that. It may be possible that the plaintiff did not understand the advice when first given in April 2014. It may be possible that the defendant did not follow her usual practice at that time. Indeed, cross-examination of the defendant tends to suggest that she may not have followed precisely her usual practice but it does not follow that she must have given advice in such a confusing way that the plaintiff did not understand it. In any event, even if that be so, the doctor would not have known that she did not understand it and would have believed that she could understand it, because when the plaintiff returned in April 2015 the effect of what she said to the defendant was that she had had a Pap smear, albeit the defendant did not enquire when and from whom. 10. Finally, the plaintiff's suggestion that even when the defendant was informing her of the discovery of HPV, the defendant reminded her that she had said she did not need to have a Pap smear seems absurd. If it was meant to be an expression of admission, I reject it. I reject the plaintiff's assertion that the defendant reminded the plaintiff that she did not need a Pap smear. 11. In the end, I prefer the defendant's version, supported as it is by the extensive contemporaneous records and the plausibility and probabilities of what occurred.
4. Of course, that does not rule out the possibility that the plaintiff has somehow formed a view or concluded that the advice which she was given was that she did not need to have a Pap smear. That would be incorrect but it is not necessary to say anything further, other than that I do not accept that the defendant gave the advice that the plaintiff asserts.

The alternative case

1. The alternative case could only be pursued based on alternative facts, that is not the facts pleaded by the plaintiff, but as at least in part, recorded in the defendant's notes.
2. In the plaintiff's closing submissions, the plaintiff identified the findings which she urges upon the Court, with reference to several (except for periods, as follows: 1. In respect of the consultation on 29 April 2014, the Court would find that the defendant understood that the plaintiff had not previously undergone a Pap smear. Despite that, the defendant did not offer to perform a Pap smear or book the plaintiff in for a Pap smear. If she had been so offered or advised, the plaintiff would have had the Pap smear. 2. In respect of the consultation on 20 February 2015, the plaintiff urges similar findings on the basis that the defendant did not either review her notes or have any understanding as to whether the plaintiff had undergone a Pap smear and did not offer to perform a Pap smear at that time. 3. In respect of the consultation of 1 April 2015, the plaintiff says that the defendant did not follow her usual practice of asking when the plaintiff had undergone the Pap smear; that she had no way of knowing when the plaintiff would next be due for cervical screening and that she did not form any assumption or draw any inference that the plaintiff had been provided cervical screening by any other practitioner. 4. In respect of the period from 1 April 2015 to 8 September 2018, the plaintiff says that, by the time of the consultation on 8 April 2017, it had been over two years if not longer since the defendant understood the plaintiff was "up-to-date"; the defendant should have reviewed her notes and taken further steps to advise or inform the plaintiff of the need for a Pap smear. She did not do so. 5. In respect of the consultation on 8 September 2018, the Court would find that the plaintiff was then unquestionably under the defendant's care but, despite that, she did not offer to perform a cervical screening then and there or make the appropriate follow-up. 6. In respect of the consultations from 29 September 2018, the Court would accept that the defendant did not follow up the plaintiff in respect of the need to have a CST and this was in breach of her duty of care in each of the occasions that she did not do so up to 22 March 2019. She should have at least included the need for CST in her referral to the specialist.

Section 5O CLA

1. Section 5O of the Civil Liability Act 2002 (NSW) ("CLA") operates as a defence in the sense that it is a complete answer to a claim under Pt 1A of the CLA (Sparks v Hobson (2018) Aust Torts Reports 82-372 per Simpson JA at [329]).
2. As Leeming JA said in South-Western Sydney Local Health District v Gould [2018] 97 NSWLR 513 at [127], in circumstances in which the preconditions to section 5O have been made out, it supplants the analysis otherwise required by s 5B. It follows that rather than undertaking the s 5B analysis, which would otherwise be necessary, in a case such as this it is necessary to firstly determine whether the defendant has established that which needs to be established for s 5O to apply.
3. This requires the defendant to establish that there was a practice which was a widely accepted professional practice with which the defendant complied.
4. It is important in this case to have regard to the whole of s 5O. For example, there is no suggestion that any peer professional opinion relied upon by the defendant is irrational (see s 5O(2)). Further, the fact that there are differing peer opinions, that is, between Dr Lynch and Dr Tobler, does not prevent any opinion being relied upon for the purpose of the section, and, as set out in s 5O(4), peer professional opinion does not have to be universally accepted to be considered widely accepted.
5. Section 5O could only apply to the alternative case. However, it is of no assistance to the defendant because: 1. There is only one reference to the defendant's conduct being consistent with peer professional practice in Dr Dobler's report and it only relates to the consultations after 16 November 2019, which are not causally relevant. 2. In respect of the earlier periods, Dr Dobler was asked to address whether the defendant's conduct was appropriate or reasonable. He said it was, but these opinions present more as his opinion based on his personal experience or what he would do rather than identification of a widely accepted practice with which the defendant has complied. 3. For the s 5O defence to apply, the defendant must establish that she acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. Taken at the highest she has only done so in respect of the period after 16 November 2019. 4. Adducing evidence from an expert that he considers that the defendant's conduct was reasonable or competent does not satisfy the requirements of s 5O because the defendant has not established that there was a practice which was widely accepted in Australia.
6. In the circumstances, the defendant has not established the section 5O defence.

Section 5B CLA

1. It is necessary to undertake the s 5B analysis.
2. The existence of a duty of care is not in dispute. Nor is the risk of harm in dispute in the sense that the risk of harm must be the risk that, if the plaintiff did not undergo cervical screening, precancerous changes and cancerous changes would not be picked up in time for treatment which would ward off the development of a terminal illness.
3. Plainly, that risk was reasonably foreseeable and not insignificant. It is not to the point to suggest that the rate of cervical cancer is relatively low. The very point of cervical screening is to detect precancerous changes before the cancer develops. The risk of harm that arises in the absence of the provision of appropriate treatment, including provision of information and recommendations, is that precancerous changes will not be detected in time.
4. In this case, the negligence of the defendant is said to have caused the particular harm. The particular harm being the loss of the opportunity to treat the cancer.
5. Of course, the failure to have the screening test does not cause cancer but having the screening test allows the patient to pick up the presence of the cancer so that it can be appropriately treated in time.
6. The alternate case is really about whether the defendant did enough to encourage and ensure that the plaintiff herself knew enough about her need for cervical screening and that she was afforded an appropriate opportunity to undergo such screening. The real issue on the alternate case is whether the plaintiff has established that, in the circumstances, a reasonable person in the defendant's position would have done what the plaintiff says the defendant should have done (s 5B(1)(c) CLA).
7. Further, the plaintiff cannot succeed unless she establishes that, if the defendant had done what she says should have been done, the plaintiff would have had the cervical screening in sufficient time to prevent the development of her incurable illness.
8. The plaintiff bears the onus of establishing causation (s 5E). Section 5D applies. The determination that negligence caused the particular harm comprises both factual causation and scope of liability causation.
9. The question of breach must be viewed prospectively, that is, on the plaintiff's case, it is necessary to look at what happened at particular times during the particular period and determine then whether, having regard to the information available to the defendant or which ought to have been available to the defendant, the defendant was in breach of her duty of care to the plaintiff.
10. The question of causation (a question of fact) is considered with reference to what happened. That is, the Court looks at what actually happened to determine whether the breach caused the loss.
11. Causation is only established in this matter if the plaintiff establishes that, if the defendant had not failed to take reasonable care, the plaintiff would have undergone the preventative screening at a time which would have enabled her to be properly treated.
12. As I have already outlined, the alternate case involves a number of aspects which might be viewed individually, that is, at specific times or as a whole. On the plaintiff's case, it would only be necessary for her to establish that at one particular time, the defendant failed to exercise reasonable care. It is only necessary that the plaintiff establish one particular of negligence in order to establish a breach. Questions of causation would then arise.
13. The plaintiff is critical of the defendant in a number of respects relating to a number of discrete periods, the whole period and a number of specific consultations.
14. I will deal with each of the periods but it is necessary to say at the outset that there are some fundamental difficulties with the plaintiff's alternate case.
15. Firstly, on the plaintiff's case as pleaded (as material facts) and as are set out in her evidentiary statement she: 1. knew that having a Pap smear was important; knew that it could detect cancer; and knew that her friends were undertaking the screening; 2. attended on the defendant on regular occasions throughout the whole period enquiring whether she should have a Pap smear but had been told that it was not necessary; and 3. inferentially, she would have had one, if she had been told that she should have one and was offered one by the defendant.
16. So, what are the material facts on which the plaintiff relies for the alternative case? They are not pleaded (except for the 2018 period), albeit there are additional particulars of negligence.
17. I have already rejected the second of those material facts but there seems no reason to reject or ignore the first. The plaintiff confirmed in cross-examination that she knew having a Pap smear was important. I can hardly proceed on the basis that she did not.
18. Secondly, because I have rejected the plaintiff's evidence that she attended on the defendant every year and regularly asked whether she needed a Pap smear and was told she did not and as she did not adduce any further evidence as to what might have been said at any of the consultations recorded in the defendant's notes, I am really just left with the notes. I do not have evidence from the plaintiff as to what she might have said, for example in September 2018 as to her willingness to book in for a pap smear or what she told the defendant at other consultations of some significance to the outcome of these proceedings.
19. The defendant has little independent recollection and much of her evidence was directed at what she would have done and what she would have recorded.
20. A good example is the consultation of 1 April 2015. The defendant says that she received information that the plaintiff was up-to-date but in her oral evidence could add little to her notes. The plaintiff offered nothing further in terms of what she said to the defendant, why she said it and what the defendant asked of her (other than maintaining her evidence that she was always told that she did not need to have a pap smear).
21. That may be because she says in this case that she was not up-to-date as she had never undergone screening. The plaintiff seeks findings about what the defendant did not say and did not do at this consultation but does not herself adduce any evidence about the consultation.
22. Thirdly, the context in which the alternate case must be considered is that on two occasions (2014 to 2015 and 2018 to 2019), when the defendant initially believed that the plaintiff had not had a Pap smear and gave her advice that she should have one, a year later the plaintiff returned and informed the defendant (incorrectly) that she had had one.
23. Findings on breach and causation must be made in that context.
24. I will now deal with each of the periods and matters raised by the plaintiff in the alternate case.
25. Firstly, I accept that when the plaintiff consulted the defendant on 14 April 2014, the defendant became aware that the plaintiff had not previously had a Pap smear. The defendant then gave advice to the plaintiff about the need for a Pap smear. I am unable to determine the precise advice she gave, but she did not say that the plaintiff did not need to have one. Her advice was to the opposite effect. Whether the defendant followed her usual practice which is set out in her evidentiary statement is somewhat irrelevant having regard to subsequent events. The defendant did not offer to perform a Pap smear then and there or offer to book one in but there may be many reasons why she did not do so including: 1. it may have been clear from the discussion that the plaintiff wanted time to think about it; 2. it may be that the plaintiff indicated to the defendant that she was aware of the importance of having a Pap smear and would attend to it elsewhere; and 3. it may be that in a busy general practice the defendant did not have time to perform it that day.
26. The defendant was dealing with an intelligent woman who already understood the importance of having a Pap smear. The defendant was not negligent just because she did not offer to do it then and there or book an appointment then and there.
27. I reject what seems to be the plaintiff's proposition that even if the defendant had properly informed the plaintiff and recommended her to undergo a Pap smear, the defendant would be negligent by not saying things such as "and I recommend that you do it now" or "I offer it to you now" or "I advise you to book with my practice now".
28. Medical consultations are a two-way process. Further, this was the first consultation during which the subject had been raised. I accept the defendant's evidence that she would have recorded if she had been told the plaintiff would not have one and that it would be proper practice to make such a recording.
29. It may be that the consultation in February 2015 would have been an appropriate time for the defendant to check whether the plaintiff had followed her advice but this is of no consequence because, when the defendant did ask on 1 April 2015, she was told that the plaintiff was up-to-date.
30. I accept that it would be appropriate for a general practitioner who is treating a patient for women's health issues, including gynaecological issues and was aware that the patient has not had a Pap smear, to bring up the subject again and check whether the plaintiff has had a Pap smear. As Dr Lynch says, it may be prudent that the subject be brought up again within months but there is no hard and fast rule. In this case, it might have been prudent for the defendant to raise it in the February 2015 consultation, but the fact that she did not is irrelevant because it was raised in the consultation of 1 April 2015.
31. I do not accept that the defendant failed to act with reasonable care merely because she only made a further enquiry of the plaintiff after 12 months rather than 9 months. That submission smacks of hindsight reasoning.
32. I accept that the defendant was informed by the plaintiff on 1 April 2015 that the plaintiff was up to date with her Pap smears. As the defendant had not performed the Pap smear, the defendant was entitled to believe that some other health professional had performed it.
33. Pap smears could be performed by a range of health professionals from general practitioners, specialist women's health clinics, and sexual health clinics. There may be reasons why the plaintiff would go to a particular doctor or clinic for a Pap smear and attend another doctor for other reasons, even women's health reasons.
34. Further, the defendant was entitled to assume that the plaintiff must have understood the advice she gave in 2014 as she presented in 2015 saying she had done what the defendant advised her to do, that is to have a Pap smear.
35. In the absence of further evidence from the plaintiff or the defendant about what was said at the consultation on 1 April 2015, I do not accept that the defendant was negligent in not obtaining further details as to who performed the Pap smear and when. I accept (as asserted by the plaintiff) that the defendant would have made a note of what was performed if she had been told but, again, the absence of any evidence from the plaintiff and the defendant about the discussion does not enable precise findings as to what might have been said by whom. It is not unusual for a doctor not to recall the precise conversation but in a case such as this, the Court will usually have some evidence from the plaintiff as to what was discussed.
36. As the plaintiff informed the defendant in words to the effect that she had a Pap smear (she was up to date), the defendant was not required to place the plaintiff on the register. That obligation rested with the clinic or doctor that had undertaken the Pap smear. There is no standard or guideline that requires a GP who has not performed a Pap smear to check the register to confirm what she was told by the patient.
37. I do not accept that the defendant was obliged to interrogate the plaintiff about when and from whom she had a Pap smear. The defendant was entitled to believe that the plaintiff had chosen to go elsewhere for the screening. The defendant was entitled to take the plaintiff at face value. This was preventative screening, not a response to symptoms for which the plaintiff was seeking treatment from the defendant.
38. Having regard to the defendant's evidence under cross-examination, I accept that, if the defendant had asked or been informed of when the Pap smear took place and by whom it was performed, she would have recorded it. The obvious inference is that she did not, but it does not necessarily follow that she did not ask. She might not have been told. After all, despite saying something which led the defendant to record that she was up to date, the plaintiff was not in fact up to date. Again this difficulty arises from the absence of any evidence from the plaintiff about what she said in April 2015.
39. Further, I am not considering this consultation in a vacuum. Regard must be had to the consultation in 2018 when the defendant again asked the plaintiff whether she had had a Pap smear and she was informed in fact that the plaintiff had, and she would check when.
40. The plaintiff has not established that the defendant was negligent in not seeking further details as to when the plaintiff had had the Pap smear and from whom, because she has not established that the defendant did not ask. All that is known about the consultation is contained in the doctor's notes. This is because the defendant does not recall the conversation and the plaintiff has not given any evidence about it (because she says the only discussions about Pap smears were the plaintiff asking the defendant and the defendant telling her she did not need one).
41. I accept that there were occasions on which the defendant could have asked the plaintiff whether she had had a Pap smear between April 2015 and September 2018. The absence of any record in her notes about such a question indicates that she did not. I also accept that, although the plaintiff was also seeing the defendant for other issues from time to time, on a fair reading of the doctor's notes, the plaintiff was consulting the defendant on a regular basis for women's health or gynaecological issues.
42. Preventative cervical screening is a related issue. That is, a consideration of whether the defendant was in breach of duty of care for failing to advise or make recommendations in respect of a Pap smear between 2015 and 2018, must be made in the context that the plaintiff was consulting the defendant from time to time for women's health issues.
43. I accept as suggested by both experts that it would have been prudent to ask the plaintiff during that period whether she had a further Pap smear. Precisely when a GP treating a patient for such health problems should remind the patient of the need to have cervical screening is a matter for judgment. There is no guideline, but the exercise of reasonable care required the defendant to remind the plaintiff of the guidelines for cervical screening.
44. I do not accept that having been told that she was up to date in 2015, the defendant was obliged to remind the plaintiff in 2016. That was only a year later and the defendant was entitled to assume that the plaintiff understood the need for screening as she had told her she had had one at the April 2015 consultation. It would have been appropriate to give a reminder in 2017 but the plaintiff only saw the doctor on one occasion in 2017 and that was for an unrelated reason.
45. I do not accept that, in the particular circumstances of this case and the understanding or relationship between the plaintiff and the defendant, that the defendant was required to raise cervical screening when the plaintiff attended merely for a referral for a thyroid problem.
46. Having said that, it would have been prudent to raise the issue at some time in 2018, during one of the early consultations. By that time, at least under the Pap smear regime rather than CST regime, the plaintiff would have been due and the defendant would have known that if she had checked her notes.
47. The defendant was first informed by the plaintiff on 8 September 2018 that she had never had a Pap smear. I accept that at this time the defendant again informed the plaintiff of the need to have one and advised the plaintiff to book for one, meaning book for one with her. I do not accept that a GP exercising reasonable care was in some way required to accompany the plaintiff to the desk to ensure that she booked one. Nor do I accept that the defendant was negligent in not offering to perform one then and there. Again, as I have already stated, there may be many reasons why such an offer might not have been made. I would need to assume that both the defendant and the plaintiff were in a position to do one. In the absence of any evidence from the plaintiff about what occurred at this consultation I am left to speculate.
48. Further I do not accept that the defendant should have included CST as part of the referral to the specialist at that time. The defendant had advised the plaintiff to have pap smear at that time and advised her to book in for one. If the plaintiff had given any indication that she would not be doing so, that would have been recorded in the notes. The idea that the plaintiff should have been referred for specialist intervention for such a procedure could only arise with the knowledge that the plaintiff would not be following the advice given at that time. Again, if the plaintiff had stated that she wanted someone else to do the screen, the position might be different but there is no evidence to that effect. The defendant answered this point during cross examination when she stated that she had no reason to believe that the plaintiff had or would be declining to book in with her as recommended. The suggestion that she should have included CST as part of the referral to the specialist is again said with hindsight in the knowledge that the plaintiff did not book in with the defendant.
49. The plaintiff did not book for one with the defendant. If the defendant had checked her notes during subsequent consultations, she would have realised that the defendant did not book for one. The fact that the plaintiff informed the defendant that she had never had a Pap smear should have raised a red flag with the defendant in the sense that the plaintiff had previously indicated to the contrary.
50. This changed the dynamics somewhat. Whilst it was still a matter for the plaintiff whether she had one, the defendant was now on notice that she had not done so in the four years that she had been treating her. This was something that needed to be followed up, particularly as the defendant had expressly advised the plaintiff to book one. The situation had changed from a doctor giving advice about the need for screening to a doctor becoming aware that the patient was not following the recommendations. The extra step taken by the defendant of advising the plaintiff to book for one was appropriate but the problem then arises that there was no follow up in subsequent consultations. In my view, the change in circumstances required the defendant to be following up the plaintiff during subsequent consultations.
51. The defendant did not raise the issue again until August 2019.
52. However, again because the plaintiff has not averted to that particular conversation during which she said she was not sure whether she had one last year and the defendant does not recall the precise words used, I am left with the notes.
53. The inference from the note is that the defendant raised with the plaintiff whether she had the Pap smear which the defendant had previously recommended. The plaintiff's response was that she may have had one last year but she would check. The defendant was entitled to accept what the plaintiff said but still needed to follow it up. She did so in November 2019.
54. The issue was again raised by the defendant on 16 November 2019. Following receipt of the results of the scan, the defendant recommended a Pap smear to look for any abnormal pathology and advised her to book one. The defendant again raised the issue on 31 December 2019, at which time the plaintiff advised that she had never had a cervical screening test.
55. I accept the defendant's evidence on what was said at that time, being that she needed to have one and it did not matter whether she had only had sex 8 years previously. I also accept that the defendant attempted to perform the investigation at that time, but it was not completed due to pain experienced by the plaintiff.
56. She then arranged for a referral to have a CST at another clinic. Nothing the defendant did in the second half of 2019 is suggestive of a failure to take care. It is to the contrary.
57. I accept that there was no further reference to a CST until the consultation on 8 May 2020 where the plaintiff again reported that she had not had a CST (that is, she did not have one at the other clinic as arranged) and the defendant again advised her to have one and book for same.
58. The plaintiff underwent a CST on 14 May 2020 and was advised of the results on 20 May 2020.
59. In the end, the plaintiff has only established that the defendant should have brought up the issue of cervical screening in the period after 2015 earlier than she actually did (in the first half of 2018) and that she should have followed up more quickly than she did after September 2018 (again in the first half of 2019)
60. I do not otherwise accept the plaintiff's alternate case. It is important to recognise that there may be differing views as to the standard of care imposed on a GP in such circumstances but, in the particular circumstances of this case, specifically that the plaintiff was plainly consulting the defendant for her gynaecological issues by 2018 and the plaintiff was providing inconsistent information about the screening, the defendant should have followed up the plaintiff more quickly (albeit that the difference is only a matter of months on each occasion).
61. The question remains whether, if the defendant had followed up in the first half of 2018 rather than the second half or in the first half of 2019 rather than the second half, the outcome would have been different.

Causation

1. It is necessary for the plaintiff to establish both factual causation and scope of liability causation. I do not consider s 5D(2) has any work to do in the circumstances of this case.
2. Importantly, as set out in s 5D(3), in determining what the plaintiff would have done if the defendant had followed up more quickly in the periods to which I have referred, the matter is to be determined subjectively in the light of all relevant circumstances. However, any statement by the plaintiff as to what she would have done is inadmissible. No such statement was admitted in these proceedings.
3. The approach to causation is to look at what actually happened and look at what the plaintiff actually did or did not do and draw inferences from the facts as I have found them.
4. I do not apply hindsight reasoning, but I am entitled to have regard to what actually happened and what the plaintiff actually did in determining what would have happened.
5. The drawing of an inference that the plaintiff would have undertaken a Pap smear at any time when the precancerous and cancerous changes might have been detected and treated is difficult in the particular circumstances of this case.
6. That is because all of the evidence points in one direction, which is towards the inference that the plaintiff did not want to or chose not to have one for reasons which may be personal to her.
7. The relevant chronology is as follows: 1. April 2014, the defendant informs the plaintiff about cervical screening and the need for her to have a Pap smear. 2. April 2015, the plaintiff wrongly informs the defendant that she is up-to-date, when the subject of the Pap smear is again raised. 3. August 2018, when she finds out the plaintiff has not in fact had a Pap smear the defendant counselled her about having one and advises her to book in for one. The plaintiff does not do so. Nor does the plaintiff have a Pap smear anywhere else, despite being informed that that the detection of precancerous changes can lead to treatment which will prevent the development of cancer. 4. August 2019, the defendant again asked the plaintiff whether she has had a Pap smear. The plaintiff responds (wrongly) to the effect that she thought she had one, but she would check. The plaintiff would have known whether she had one. She provided incorrect information to the defendant for her own reasons. 5. November 2019, this was again raised by the defendant at which time the plaintiff said that she had not had one and the defendant advised her to book in for one. She did not. 6. December 2019, the plaintiff again advised that she had not had a Pap smear. The defendant attempted to perform one but the plaintiff exhibited pain. The defendant arranged for the plaintiff to have a Pap smear at another clinic. The plaintiff did not attend on that other clinic.
8. It follows that: 1. On every occasion that the defendant recommended or gave advice about a Pap smear between 2014 and 2019 the plaintiff did not follow that advice. 2. On two occasions the plaintiff provided incorrect information to the defendant about whether she had had a Pap smear. 3. On one occasion when the defendant attempted to perform a screening test the plaintiff complained of pain. 4. On the occasion that the defendant referred the plaintiff to another clinic for CST the plaintiff did not attend.
9. In all the circumstances, the evidence does not permit any inference being drawn that, if the defendant had raised the issue a few months earlier in 2018 or a few months earlier in 2019, the plaintiff would have had the Pap smear or CST. There is no basis on which I could find that, if the defendant had raised the issue at some different time, the plaintiff would have followed the advice, when she did not do so at any other causally relevant time that it was raised.
10. The course of communications with the defendant over the period 2014 to 2019 suggests a disinclination on the plaintiff's part to have a Pap smear. Again, the plaintiff is not a person who would not have understood the advice or who had no understanding of why such screening could be important. She knew it was important.
11. I am only able to conclude that, for reasons personal to her, she did not want to undergo the screening or decided not to undergo the screening. Even if the defendant had reminded the plaintiff more promptly in 2018 or 2019 that she should be having cervical screening, the plaintiff has not established that the outcome would have been different. The plaintiff has not established that but for any asserted failure, she would have had a pap smear or CST in time for the cancer to be treated.
12. As such, the plaintiff is not entitled to succeed.

Damages

1. I will assess damages briefly.
2. If the plaintiff had succeeded, she would have been entitled to substantial damages. Some heads of damage were agreed. There are two major components in dispute relating to non-economic loss and economic loss.
3. There could not be any doubt that the consequences of the alleged negligence have been and will continue to be traumatic.
4. There is a dispute between the parties as to the amount the plaintiff should have received on account of non-economic loss (assessed as a percentage of the most extreme case in accordance with the CLA). The plaintiff seeks 90-100%. The defendant disagrees, suggesting a figure of 55% (see O'Gorman v Sydney South West Area Health Service [2008] NSWSC 1127 at [162]). Whilst the trauma is extreme and it may be difficult to contemplate any worse an outcome said to be arising from the alleged failures, sadly the period of the trauma is limited. In my view, the plaintiff is not entitled to non-economic loss at the level sought.
5. I would make an assessment of 70% in the most extreme case.
6. In terms of economic loss, the dispute between the parties is limited to the amount of income that the plaintiff was receiving prior to becoming unfit for work because of a cancer and what she would have earned in the future, that is for the lost years.
7. The approach to assessing damages in a case such as this is not in dispute. The plaintiff is entitled to damages equivalent to the income she would have received if she had not developed a terminal illness. This is to be calculated with reference to her likely net earnings, with an appropriate allowance for the contingencies and with a deduction representing the amount that she would have spent on maintaining herself if she had survived (see Skelton v Collins (1966) 115 CLR 94 at 121 per Taylor J).
8. In her last period of work the plaintiff was working as a full-time project manager for the NSW Department of Education earning a base rate of $1100 gross per day (exclusive of superannuation) through a recruitment agency. The plaintiff's pay slips indicate net earnings of $3478 per week. The plaintiff accepts that this was higher than she had ever earned, and claims aims a lesser sum being $2750 per week. The plaintiff claims that there should be a weekly deduction on account of maintenance expenses that she would have incurred of $940.
9. The defendant assesses past economic loss from 17 November 2022 to 2 April 2024 at $1830 net per week with a deduction for maintenance of $1000.
10. As already indicated the plaintiff had a bright future ahead of her. Earnings were increasing over time. The averaging process undertaken by the defendant reflects differing income over differing periods and also reflects the fact that there had been periods where she was not working.
11. As is well-known the past is only a guide (Husher v Husher (1999) CLR 138). If not for her illness, the plaintiff would be moving into her peak earning capacity period. Her skills were sought after.
12. There was no cross-examination of the plaintiff on these damages issues. In my view, her earnings in the immediate period before she stopped work are reflective of what she might have earned in the future. The plaintiff has discounted that figure somewhat, which in my view represents a reasonable approach having regard to the time she stopped work and her lesser earnings in the period immediately before that time.
13. I thus would have assessed damages in the sum claimed by the plaintiff to the age of 67. I would have allowed a 15% reduction on account of vicissitudes. There is nothing in the plaintiff's history or background which would suggest that a greater discount should be allowed.
14. Again, there was really no evidence on likely maintenance expenses. The difference between the parties is small. Common experience suggests that the higher the earnings, the greater the amount spent by the income earner. I would have assessed the weekly maintenance deduction as $1000.
15. I understand that all of the other heads of damages sought are agreed.
16. It is not necessary that I prepare a schedule of damages as the plaintiff has not succeeded. I made findings on what the plaintiff would have recovered should she have succeeded so as to enable the parties to calculate damages, if it be necessary to do so arising from any appeal.
17. I understand that all amounts are agreed, such that should it be necessary to do so, the parties can agree on the total amount.

Orders

1. I make the following orders. 1. Judgment for the defendant. 2. The plaintiff is to pay the defendant's costs. 3. Grant liberty to apply should either party seek a variation of the costs order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2024