Mouratidis v Brown

Associate: Dated: 7 November 2002 IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 64 OF 2001

AND: DAVID ROSS BROWN AS APPOINTED REPRESENTATIVE OF THE ESTATE OF THE LATE AMANDA BROWN

REASONS FOR JUDGMENT GYLES J: 86 I have had the advantage of reading in draft the judgment of Wilcox and Higgins JJ, which relieves me of the necessity of explaining the background to the appeal and the basic facts. I can concentrate upon explaining my reasons for taking a different view as to the result of the appeal from that taken by Wilcox and Higgins JJ. I would allow the appeal. I begin by acknowledging the difficult task which confronted the judge of the Supreme Court in dealing so urgently, in harrowing circumstances, with a difficult case. Indeed, the circumstances cause me some disquiet. 87 As there is no issue as to vicarious liability, I will deal with the case of the first appellant, Dr Bill Mouratidis, and shall describe him as "the appellant". He saw Amanda Brown ("the plaintiff") twice, the last time on 13 December 1995. The appellant did not hear anything further about the situation of the plaintiff until after commencement of the proceedings in May 2001. An amended statement of claim was filed on 8 August 2001, and the appellant's defence was filed on 10 August 2001. The statement of particulars dated 12 September 2001 filed by the plaintiff related to damages. The particulars of negligence in the amended statement of claim in relation to the appellant (in common with other defendants) were: "(a) A failure to provide all adequate medical attention. (b) A failure to provide all adequate medical treatment. (c) A failure to employ adequate diagnostic techniques. (d) A failure to ensure all necessary diagnostic tests and procedures were carried out. (e) A failure to ensure that symptoms and signs displayed by the Plaintiff during her attendance were promptly acted upon. (f) Failure to adequately carry out Fine Needle Aspiration. (g) Failure to adequately carry out a sufficient number of Fine Needle Aspirations. (h) Failure to carry out Fine Needle Aspiration from both lumps in the left breast. (i) Failure to properly examine the fine needle aspirate taken from the Plaintiff's left breast. (j) Failure to recognise and identify lobular carcinoma cells from the aspirate. (k) The Plaintiff repeats the particulars of negligence pleaded at paragraph 9(a) to (f): 9(a) Failure to diagnose or suspect the lumps in the Plaintiff's left breast were lobular carcinomas. (b) Failure to put in place proper and or adequate measures to enable an accurate diagnosis to be made of the lumps in the Plaintiff's left breast. (c) Failure to take reasonable procedures to adequately diagnose the Condition suffered by the Plaintiff. (d) In the alternative, in the course of examining the Plaintiff, the Third Defendant failed to discover that the original diagnosis of benign cysts was incorrect and negligently treated the Plaintiff as a result of an unreasonably incorrect diagnosis. (e) Failure to perform a mammogram. (f) Failure to skilfully perform the ultrasound." 88 On 28 August 2001 the hearing was fixed for 24 September 2001. At that time, counsel for the defendants indicated problems in being prepared for hearing, and complaint was made about the difficulty of ascertaining the real case which the plaintiff was to make from the broad particulars in the statement of claim. A direction was given that, within seven days, the plaintiff indicate to the defendant the issues that would be raised at the hearing. The matter was restored to the list on 14 September 2001 by the defendants, intending to apply for the hearing date to be vacated. In the meantime, correspondence had led to that application not being pursued. 89 On Monday, 17 September 2001, application was made to the trial judge for the taking of evidence urgently from the plaintiff in view of her rapidly deteriorating medical condition. Counsel for the plaintiff sought that the evidence be taken that day at the home of the plaintiff near Yass. Junior counsel for the defendant opposed that course. She was engaged in another proceeding that day. Senior counsel who had been briefed was from Melbourne, had not had an opportunity of preparing the matter, would find it difficult to be available at the home of the plaintiff that evening, and, even if available, would have little knowledge of the case. Counsel also raised problems in relation to supply of medical reports and particulars. During the course of argument, senior counsel for the plaintiff very firmly based his case upon the medical report of Professor Martin Tattersall dated 6 August 2001, which had been served, and, indeed, pinned himself to pars 3, 6 and 9 of it. Those paragraphs were the answers to particular questions asked of Professor Tattersall by the solicitors for the plaintiff. Professor Tattersall set out the assumptions that he had made for the purposes of expressing his opinion. For relevant purposes, it is sufficient to note that these assumptions relied only upon contemporaneous notes and reports and not upon any evidence of the plaintiff or her husband. The questions and answers referred to by senior counsel for the plaintiff were as follows: "… 3.Q. Do I see any departure from the applicable standard of care by either of the first two defendants? A. Yes. I believe Dr Mouratadis [sic] departed from the standard of care of a radiologist responding to a request which stated 'Bilat. Mammogram. Bilat. Breast USS. Plus/minus fine needle biopsy if indicated, and included in the history 35 para 2, recently ceased lactation. Lump left areolar and lump left upper outer quadr (past history of thyroid cancer)'. … 6.Q. What are my views concerning Dr Mouratadis' failure to take a fine needle aspirate from the larger breast lump. A. I believe a biopsy of the larger breast lump in August 1995 would more likely than not have documented lobular breast cancer. … 9.Q. What chance did the plaintiff lose if there is a deviation from the standard of care between August 1995 and December 1995. A. I believe that a diagnosis of lobular breast cancer in August 1995 would more likely than not have led to a mastectomy being recommended. I believe pathological examination of the breast would have shown invasive lobular breast cancer with foci of invasive lobular cancer in more than one site. There would likely have been metastatic spread to more than one axillary lymph gland, but likely less than 10. Adjuvant chemotherapy would have been recommended and endocrine treatment. The probability of survival at 10 years would have been about 50% or greater depending on the extent of axillary lymph gland metastasis in August or December 1995." 90 In an affidavit dated 4 September 2001 the plaintiff claimed that the appellant did not feel or examine her breasts on either occasion he saw her. No reference was made to this in the Tattersall report or any other particulars, oral or written, so far as I can see. After hearing evidence from the plaintiff's general practitioner, the trial judge ordered that evidence be taken that afternoon, at the plaintiff's home near Yass. The hearing at Yass commenced at 6.02pm on that day. Senior counsel for the defendants had arrived. She detailed her difficulty in dealing with the matter on that evening, and repeated the concern held about particulars. Senior counsel for the plaintiff again pinned himself very firmly to the three identified questions and answers from Professor Tattersall. He also referred to the fact that the affidavit (presumably that of the plaintiff) had been served the day before, and I note that the copy of the affidavit of 4 September in the appeal book indeed bears a fax date "16 September". The plaintiff was examined and cross-examined, and the hearing was completed at 7.25pm. 91 The hearing proper commenced on 24 September 2001. When the case commenced, senior counsel for the plaintiff informed his Honour that the plaintiff had been admitted to Canberra Hospital the day before, and that she would not be present during the currency of the case. It is fair to say that a reading of the transcript of the various directions hearings and of the trial indicate that senior counsel for the plaintiff lost no opportunity of impressing upon the Court and counsel for the defendants the urgency of the situation. Evidence proceeded until it closed at 5.40pm on 28 September. Closing addresses commenced just after 2pm on Saturday, 29 September 2001, and were completed at 7.15pm that day. After closing addresses, the trial judge ordered (inter alia) that there be judgment for the plaintiff against the appellants in the amount of $223,143.60 and judgment was duly entered at 8.35pm. 92 Paragraphs [2] and [128] of his Honours reasons for judgment were as follows: "2. The hearing was expedited because the plaintiff's condition was terminal and it was feared that her death was imminent. This not only meant that the case might have had to be decided without any evidence from her, but that the range of damages might have been severely curtailed by virtue of s 5 of the Law Reform (Miscellaneous Provisions) Act 1955. That section provides that where a cause of action of this kind survives for the benefit of a deceased person's estate, the damages recoverable may not include components for various matters including pain and suffering, loss of her ability to provide domestic services including, presumably, caring for her children and loss of future earnings. Furthermore, she may have been denied the opportunity of knowing the outcome of the proceedings. … 128. I might also mention that the terms of s 5 of the Law Reform (Miscellaneous Provisions) Act are likely to create a similar need for urgency in other cases. Any dying mother is likely to be anxious to ensure that her children have the benefit of damages reflecting due compensation for what she has suffered and for the care that she was and will be unable to give them. Yet to obtain such damages a plaintiff must not only commence proceedings but have the case completed and judgment entered prior to her death. It seems inappropriate for damages to be determined largely by reference to the plaintiff's capacity to cling to life whilst her lawyers pursue expedition and relentlessly oppose any delay. Furthermore, such a course may involve considerable inconvenience for both parties and the court may be required to balance the risk that delay alone might defeat much of her claim against the risk that the defendant may suffer unfair prejudice if denied sufficient time to prepare his or her case. Important issues of principle arise in this area of the law and it is for the legislature to determine whether the section should be retained in its current form or amended to address these issues. However, I would hope that some means could be found of alleviating these problems." 93 My disquiet is increased when, in the reasons for judgment delivered on 24 October 2001, a critical finding was that the appellant had failed to carry out a proper physical examination of the plaintiff's left breast in both August and December, rejecting his evidence in favour of that of the plaintiff and her husband. As has been seen, that allegation did not form part of the particulars relied upon prior to trial, and was simply referred to in the course of a narrative of events, with no further elaboration, during the opening by counsel for the plaintiff. Resolution of this credit issue must have been complicated by the considerations noted by the judge in another connection: "However I did not regard the absence of any direct evidence from the plaintiff on this issue as fatal to this aspect of her claim. In other circumstances it might have been appropriate to have inferred that any evidence from her on this issue would not have assisted her case. However, she was obviously gravely ill and I formed the impression that both Mr Purnell and Ms Morrish were concerned to limit their questioning of her in order to spare her unnecessary distress. In all the circumstances, I was not prepared to draw an inference against either party by reason of any failure to put any particular matter to her." 94 There is no ground of appeal based upon the timing or manner of the trial. However, in my opinion, the pressures upon the judge, and counsel, were such as to justify careful scrutiny of the reasons for judgment. 95 Among the critical passages in the judgment were the following: "31. However, I found the claim for a cause of action for negligence established. Whilst I had no reason to doubt that the third defendant was otherwise a responsible and conscientious medical practitioner, I was satisfied that he had failed to carry out a proper or adequate examination of the plaintiff's left breast in August and December 1995. I was also satisfied that if he had done so he would have found a lump, or at least a discrete area of firm lumpy tissue in the upper left quadrant, and that he would, or should, have then performed a fine needle aspiration on that area. I found that if such a procedure had been properly performed it would probably have revealed the presence of lobular carcinoma and the treatment for that condition would have been provided much earlier than it was. … 48. I was satisfied that a significant abnormality had been present in the left upper quadrant of the breast in both August and December 1995, and that it would have been discerned by the third defendant on either occasion if he had carried out an appropriate examination with due palpation of the breast. I was also satisfied that on both occasions he had failed to do so even though his attention had been drawn to the potential abnormality by the terms of the referral from Dr Willington in August and by Mr Brown's comments in December. I concluded that his failure to do so had amounted, in each case, to a breach of the standard of care that he owed to the plaintiff. 49. The evidence established, in my view, that a reasonable standard of care on the part of a person in the position of the third defendant would have involved the application of the so called "triple test" for any lump in the breast at least in the absence of any obviously benign explanation. The triple test consisted of a clinical examination, imaging by mammography or ultrasound, and fine needle aspiration or biopsy. I was satisfied that this standard required a person in the position of the third defendant to apply the triple test to both 'lumps' and not merely the one in the areola. I was also satisfied on the evidence that the lump or area of lumpiness in the left upper quadrant should have been regarded as the more suspicious of the two lumps. Consequently, I concluded that the third defendant would probably have carried out a fine needle aspiration on this lump or discrete area of lumpiness if he had discovered it, as he should have done, in August and/or December 1995, and that any failure to have performed such a procedure would have amounted to a further breach of the standard of care that he owed to the plaintiff." 96 There is weight to the criticisms advanced by counsel for the appellant as to the acceptance of the evidence of the plaintiff, which was that her left breast was not physically examined or even touched by the appellant on either occasion. The normal procedures involved in the administration of an ultrasound and a fine needle biopsy or aspiration ("FNA") make that conclusion unlikely. It is also unlikely that the appellant would not follow correct procedures on two occasions separated by some months, bearing in mind that he had trained personnel with him on each occasion. There are also contra-indications in the contemporaneous notes. Further, the appellant undoubtedly faced forensic difficulties in dealing with the issue of credit which arose. As I am satisfied that the finding against the appellant should not stand for other reasons, it is not necessary to resolve this issue. There is no doubt that the appellant was bound to examine the breasts of the plaintiff for the purposes of and as ancillary to carrying out the ultrasound and FNA - he accepted that himself. It is another thing to say that, independently of the procedures being carried out, an examination was required as a separate diagnostic exercise. It is possible that a difference between those two types of examination might explain some misunderstanding by the plaintiff. 97 My difficulty with the decision lies in two related aspects: (1) The conclusion that proper physical examinations in August and December would have detected a condition of the upper outer quadrant of the left breast indicating the need for FNA regardless of the result of the ultrasound; and (2) The conclusion that the appellant was bound by reason of the triple test to conduct such physical examinations for the purpose of deciding whether to FNA the upper outer quadrant of the left breast on each occasion of his own accord regardless of the result of the ultrasound. 98 A short summary of my reasons follows. The appellant was a physician in nuclear medicine and diagnostic ultrasound who, in 1995, worked in the Medical Imaging Department of the Canberra Hospital. His specialty of nuclear medicine has nothing to do with this case. Among his qualifications was a Diploma of Diagnostic Ultrasound. He is not a radiologist. He did not carry out mammograms, and the Canberra Hospital machine for that purpose was substandard. By August 1995 he had approximately ten years' experience in administering ultrasounds. He was not a physician specialising in the diagnosis or treatment of cancer or breast cancer. He was not an oncologist. Most importantly, he did not have the general care and control of the plaintiff as a patient. The plaintiff was referred to him for a specialised service by a medical practitioner who did have care and control of the plaintiff as a patient. The appellant gave evidence that he regarded Dr Willington as the clinician when he first saw the plaintiff, and there is no acceptable evidence which casts doubt upon that view. The referral to him by Dr Willington was specific - the examination required was a bilateral breast ultrasound plus or minus fine needle biopsy if indicated. In other words, an ultrasound was compulsory and FNA discretionary. The ultrasound was obviously to take place first. The contribution which the appellant could make to diagnosis was his expertise in administering and interpreting an ultrasound, not his general clinical knowledge. There was nothing to indicate that his expertise in relation to palpation or physical examination of a breast was superior to or even equal to that of Dr Willington. The "if indicated" part of the referral would (at least primarily) mean if indicated by the ultrasound. If palpation of the breast had revealed the presence of a lesion such as to give rise to the necessity for a biopsy regardless of the result of an ultrasound, then Dr Willington would have been responsible for ordering it. The same applies to the December referral from Dr Tyson. The contemporaneous evidence is inconsistent with any such lesion being present upon examination in August or December. In each instance the instruction for an ultrasound was properly carried out and reported upon to the clinician. Neither ultrasound indicated any need for FNA of the upper left quadrant. 99 It is necessary to say something of ultrasound or sonography. It is a technique using sound waves to produce real time and film images of tissue. The technique was explained by the appellant as follows (in recounting what he says happened on 10 August): "All right. Well, let's go back to the bilateral breast ultrasound. Did you do that? --- The sonographer did the ultrasound and I checked her findings. Were you in the room or not in the room when she did the ultrasound? --- Yes, I was. You wasn't? Where were you when the ultrasound was actually performed in real time? --- Well, Amanda Brown was lying in the bed. The sonographer was on the right hand side of the bed. I'm on the left hand side of the bed. And were you - the bed - we heard that there's a monitor while the ultrasound's being conducted in real time? --- That's right. And what were you doing while the ultrasound process was going on? --- I was looking at the monitor and once the examination had finished I checked her findings and examined Mrs Brown's breasts with the probe and with my hands simultaneously to make a direct correlation between what I was seeing on the screen and what I was feeling. Okay. Well, let's go from the moment that the sonographer, not you, starts the process. How does the process normally go? There's a probe, and how is that - how is the ultrasound actually physically done? What happens? --- Well, we have a machine with a monitor, and from that machine emanates a cable which is attached to a probe, which is a rectangular substance which is then placed on the skin of a patient. One needs some gel applied to the skin to allow the sound to be transmitted into the body, otherwise the sound waves get bounced back and we can't get any images. The patient lies on a bed and a systematic examination of the breast is performed, going through each quadrant in both transverse and longitudinal views including the axillary tail and also underneath the nipple, and this is repeated for the next breast. Okay. Well, you said that the sonographer did the first part of the test? --- That's right. And then you took over. What did you personally do? --- I took the probe in my hand and placed it on Mrs Brown's skin, take it off intermittently, put my hand on her breast to correspond with the image and see what I was feeling or what I was corresponding on the image. So basically what I was trying to do is correlate the palpable findings to the ultrasound image." 100 It is also necessary to appreciate something of the role and limits of FNA. FNA is a form of biopsy whereby a fine steel needle is inserted into tissue to remove cells from the tissue for analysis. A syringe is used to collect the cells from the needle and spray them onto slides for analysis. The evidence of the appellant was that without what was described as "a focal lesion" FNA is not indicated. A focal lesion is a lesion which has well-defined margins, which is separate from the rest of the breast and easily discerned from the remainder of the breast. It was also described as a discrete lump or discrete mass. According to the appellant, in order for FNA to be effective, there has to be a target, and it is important that the target be differentiated from the cells around it. General lumpiness or tenderness, even if confirmed on palpation, would not lead to FNA unless there was ultrasonic or mammographic evidence to indicate the existence of a focal lesion. He described FNA without having a focal lesion as a target as rather akin to throwing a dart at a board wearing a blindfold. The appellant explained in evidence how, having identified a focal lesion, he would combine physical examination together with sonography to ensure that the needle went into the object area and stayed there during the manipulation which was part of the process. If the needle escapes from the object area, the samples will be confused. 101 At the trial, the appellant was able to use film of some of the images taken during the ultrasounds on each occasion to explain his findings, and was able to compare the ultrasounds one with the other. There was no allegation that there was anything negligent about the administration of the ultrasound or of the interpretation of the results of each of them. He was the witness with most experience in FNA. No other specialist in that field was called. It should be noted that, in addition to the appellant, a sonographer was present on both occasions and a cytologist was also present when the FNA was performed in December. 102 In cross-examination the appellant said: "And you agree that as a clinician tenderness is an indicia for suspicion? --- For low suspicion for carcinoma. For suspicion. You agree, don't you? Can you answer the question? You agree with that as a proposition, don't you? --- I agree that it is a suspicion for some form of benign, or possibly abnormal pathology. Yes. And you, carrying out your duty diligently, would exclude that suspicion if ultrasound was negative by doing an aspiration or a biopsy on the relevant part, wouldn't you? --- Not on a tender area, no. I see? --- If there's no lump there there's no indication for a biopsy. You know, don't you, that lobular carcinoma can be multifocal? --- Yes. And by definition of that multifocality it makes it more difficult than ductal carcinoma to detect? --- Correct. You know also, don't you, that a biopsy of an area that's not a distinct lump but a discrete mass is a sign worthy of investigation to exclude multifocal carcinoma? --- If there was a discrete mass, yes." 103 This passage refers to a problem, and, in my opinion, the root problem, in the present case. The form of cancer which the plaintiff had in her left breast was lobular cancer, which tends to be multi-focal with no discrete focal mass or lump. There is little dispute about the nature of lobular carcinoma, but a convenient explanation is by Professor Levi as follows: "Are there any difficulties in diagnosis of lobular carcinoma? --- Yes, there are. It's a rare tumour, but when it does develop it tends to infiltrate profusely through the breast so that a mass effect is much less likely to be apparent, and the clinical presentation would therefore be much more difficult because it would only generally appear as some degree of thickening, or firmness, of the breasts rather than an obvious lump. And that can make diagnosis very difficult. Quite often also as a result of the nature of the infiltration of the breast it doesn't produce a mass effect on mammogram, and also it doesn't produce microcalcification so that it can't produce an appearance on a mammogram, or an ultrasound, that would make the suspicion of a diagnosis of breast cancer very likely. Well, on top of the inherent difficulties of diagnosis, are there additional difficulties in relation to women who have been breast feeding? --- Yes, in general terms, because of the effect on the breast of lactation that it means that the glandular elements of the breast are more prominent, the breast tends to be firmer, and quite often lumpy as well, so that can quite easily mask the potential for something other than just the breast related to lactation, such as, for example, a breast cancer. What about if a patient may have fibroadenosis? --- Well, fibroadenosis is a diagnosis which relates to increased fibrous tissue, and sort of glandular components, or enlargements within the gland which would again produce a generally lumpy appearance to the breast. So it could quite easily produce a picture that would be similar to a diffuse infiltration by something more sinister such as lobular carcinoma." 104 There are other forms of biopsy apart from FNA, which are more invasive than FNA. The appellant was competent to perform core biopsy but any form of excision biopsy was a task for a surgeon. It was not alleged that the appellant was negligent in not undertaking a core biopsy. 105 It seems to me, with respect, that the finding of the trial judge that there was a significant abnormality in the left upper quadrant of the left breast on each occasion which should have led to FNA is contrary to the evidence of the treating medical personnel when properly understood. The most significant evidence was given by Dr Willington. Dr Willington had qualified in 1980 and commenced in general practice in late 1982 or early 1983. She had substantially practised in women's health since commencing in general practice, and had had appointments at Warilla Women's Health Centre near Wollongong, at the Shoalhaven Women's Health Centre and at the Family Planning Clinic in the ACT. The clinical notes of the Family Planning Clinic for 10 August 1995 include an entry in her handwriting identifying "firmer lumpier tissue" in the indicated area on the upper left quadrant of the left breast. It is of note that Nurse Kippen, who conducted the initial examination, did not record any observation as to that area. The referral by Dr Willington to the Canberra Hospital (so far as relevant) was as follows: "Examination Required: Bilat Breast U-SS Plus/minus fine needle biopsy if indicated. History and PD 35 Para 2 Recently ceased lactation Lump L areolar lumpy L upper outer quad (Past history of thyroid Ca)" After being taken to her referral, her evidence continued: "What was your expectation in regard to those remaining tests? --- I was expecting that Mrs Brown would contact the hospital and make an appointment for the medical imaging department, that she'd be given an appointment, that she'd present and that in relation to the breast ultrasound that she would be - have an ultrasound scan which is a common procedure and that the radiologist would then make a judgement [sic] as to whether there was sufficient indication to do a fine needle biopsy at the same time. And the reason why it's requested in this way plus minus fine needle biopsy if indicated is because if you don't request it that way and the radiologist sees something that they would advise should be biopsied then it's very inconvenient for the women, she has to come back and be returned and so this is a very typical proper way of ordering this test. Did you have an expectation that a fine needle aspiration would be carried out on this occasion in light of your observations? --- I can't remember. Now, I think you've given some assistance in this regard, but on your notes you refer to firmer lumpier tissue, and similarly on your referral you refer to lumpy left upper outer quadrant. Is there any particular significance in relation to the use of the word lumpier or lumpy in those two documents? --- The significance I attach to this is that I make no documentation of having noticed a discrete or definable lump. It is a very common thing when examining breast tissue to have a kind of sense of altered texture or density and it can be diffuse and not necessarily obvious. And difficult to define whether in fact this is a lump or a change in density and so it would be my usual practice if actually identifying a defined lump to describe whether it was mobile or fixed or what size it was and so forth. And the fact that I haven't done that in the notes, and the fact that I don't describe it for the radiologist - you see, normally it would be a courteous and appropriate thing when referring to the radiologist to describe what the clinical findings are. So if sending someone away for a test and it's a clear lump, you'd say this is a 2 centimetre by 3 centimetre or whatever it might be, lump. But because there's no reference to that it leads me to be fairly confident that there was no definable lump. But lumpier texture in the breast." 106 In cross-examination, Dr Willington gave the following evidence: "MR PURNELL: And you as a careful diligent Family Planning doctor wanted a mammogram, an ultrasound and a fine needed [sic] biopsy if indicated in relation to the two areas that you've put on the request form? --- That's correct. Yes. And you know, don't you, that lobular carcinoma is something that has to be excluded in relation to lumpy areas? --- Well, it's always true that a lumpier area needs monitoring and investigation to confirm that it is not malignant. Yes. And you know that lobular carcinoma can be multi-focal? --- It certainly can. And a lumpy area is just the sort of thing that you would worry about in terms of multi-focal lobular cancer. In terms of being excluded, I mean? --- The vast majority of lumpier areas are benign. Yes, but you know, and that's why you referred her to somebody like Mouratidis, that this has to be excluded for you to carry out your duties acting diligently with these - the triple test be gone through. That's the case isn't it? --- The triple test was not part - there was no guideline in place at the time. You've indicated the triple test, the examination required in essence haven't you? --- There were no guidelines in place at the time of my examination. It was my judgement to make those requests. Yes. Well, the request was that you were concerned about those two areas, and you thought that if there was an indication, there should be a fine needle biopsy as you've written. Agreed? --- That's correct. If there was an indication there should be a fine needle biopsy." 107 Dr Willington had earlier given the following evidence: "Doctor, in relation to your finding of the sign of firmer lumpier tissue, what significance, if any, would you attribute to this? --- I can only go on the notes because I can't recall this consultation at all, but this patient didn't complain of any symptoms. But during the course of the discussion, or maybe on questioning, it was revealed that she had been recently lactating. I don't know how recently but it wouldn't have been months before, we wouldn't have called it recent, so within the last several weeks she had weaned from breastfeeding - weaned a baby from breastfeeding so I am likely to have associated it with recent lactation. On reflection, in relation to the notes that you have there, was there anything worrying in the presentation Mrs Brown has recorded? --- Well, it's my practice to worry, it's my training to worry, and being of cautious temperament - although it wouldn't have occurred to me that there was anything sinister about this presentation at all, you know, to be thorough we requested tests, so it wasn't really because - I can't imagine that there was a great feeling of concern, but there was a feeling of thorough investigation." 108 Dr Willington did not conclude from her examination that a biopsy of any sort was mandatory. She was a well-qualified and experienced practitioner in the relevant field, and there was nothing to indicate that, leaving aside his ability in relation to ultrasounds, the appellant could add anything to the assessment of the necessity for biopsy. She pointed out in evidence that she had not made a PD (provisional diagnosis) of cancer. 109 The next examination was by Dr Tyson, who also gave evidence. She had completed her training in 1986, and in 1995 was working at the Family Planning Clinic as well as a clinic at the Canberra Hospital. For the moment, I leave the lumps in the area of the nipple out of consideration. Her clinical notes do not identify the upper outer left quadrant at all. In the referral she said "general tenderness, especially upper region". The clinical notes as explained by the witness included the following: "P (stands for plan), repeat ultrasound plus or minus FNA". In relation to that entry, she gave the following evidence: "What does the plus or minus signify? --- It may signify that I would wait till the report came back and then decide whether or not a fine needle aspiration would be appropriate, or it may indicate that on the basis of the ultrasound report, reporting a fine needle aspiration would be - may not be necessary." The referral was for a repeat ultrasound with no reference to FNA. She was not challenged in cross-examination to suggest any failure in her examination or referral. Her evidence establishes that she did not regard the general tenderness in the upper region as warranting any biopsy without further ultrasound indication. Her evidence also makes clear that she was the clinician involved and contemplated making the decision about the need for biopsy when she had considered the ultrasound report. Most importantly, for present purposes, her clinical notes are quite inconsistent with there being any discrete lump or even lumpy area discernible on palpation on physical examination of the upper outer quadrant of the left breast. 110 Thus, neither clinician who undoubtedly examined the relevant area of the breast identified any focal lesion upon physical examination such as to require biopsy. Neither was challenged on credit in cross-examination. It is also striking that there were two comprehensive ultrasounds by the appellant, not alleged to be negligent, which did not give any indication of the existence of any focal lesion in the upper outer quadrant. Film of those ultrasounds remains in existence and was demonstrated in evidence, although it does not completely replicate all of the real time images. 111 The trial judge apparently accepted evidence from the plaintiff's husband that the lump got bigger and increased most noticeably between December 1995 and 25 January 1996, when the plaintiff was seen by a general practitioner, Dr Lawrence. He referred the plaintiff to Dr Dyason, a consultant general surgeon. The letter of referral from Dr Lawrence was as follows (omitting formal parts): "Many thanks for seeing (urgently) this young lady, a mother of two, with a past history of (1986) of carcinoma of the thyroid and a discrete breast lump on the left. In November 1995 Amanda noted a discrete firm area of tissue in the lateralsuperolateral left breast which in [sic] non-tender and appears to be enlarging. Amanda saw another local medical officer and subsequently had a FNA performed in December of 1995, the cytology of which was reported as benign. Examination reveals a discrete firm/hard minimally mobile, non-tender three by four centimetre mass lesion in the left breast without axillary, supraclavicular or other lymphadenopathy. There is a soft nodule (?) cyst in relation to the left areolae. Her aspiration cytologist recommended that she have a mammogram "to be sure". Despite the negative FNA the nature of the lesion, the lack of change or fibroadenosis in both breasts suggests further review with a view to lumpectomy. Looking forward to your early assessment." Lumpectomy is a surgical excision biopsy. 112 Dr Dyason saw the patient on 31 January 1996 and, according to a later report: "On examination, there was a defuse lumpiness in the upper outer quadrant of the left breast. There was a solitary nodule in the areola of the breast which looked to be an epidermoid cyst. I arranged for her to have an ultrasound and x-ray of both breasts, and I enclose a copy of the report on the 19/2/96. The report the suggested a diagnosis of fibroadenosis. Clinically radiologically and FNA pathology suggested a benign diagnosis for this left breast lump." 113 Dr Dyason gave evidence and interpreted his clinical notes taken on first examination on 31 January. He noted lumpy areas on the upper outer quadrant, a small lumpy area immediate to the nipple and a cyst on one side of the areola of the nipple. In evidence, he said: "Well, what did you notice on the examination? --- There was an obvious cyst that could be seen. There was nothing else to be seen. And on palpation there was thickening in the upper outer quadrant of the breast, and there was thickening in the immediate problem just above the nipple. And what did you - what diagnosis did you make on the basis of that consultation? You've written there fibroadenosis? --- I obviously thought it was benign." He went on to explain fibroadenosis in the following way: "MS MORRISH: You've got the words fibroadenosis there. What does that mean, insofar as what diagnosis you may or may not have made on that day? --- That's a benign hormonally induced condition of the breast which produces breast cysts, and fibrosis, in the breast tissue. It's cyclical, it's governed by varying hormones, and it's very common in this age group. Well, what is fibroadenosis? --- The word? Yes, what does it mean? --- Fibrosis means fibrous tissue. Yes? --- Adenosis means proliferation of the glandular tissue of the breast. And if a patient does have fibroadenosis, what are the physical manifestations? --- Symptomatically they have tender breasts, frequently the breasts are lumpy to touch, and sometimes there are breast cysts." He explained the difficulty of diagnosis of lobular carcinoma in this way: "And what makes it difficult to diagnose? --- It may mimic benign disease, it may mimic fibrocystic disease, it may develop for a long period of time without a palpable lump, it may not show up on ultrasound or mammography." 114 His contemporaneous report of 20 February was as follows (omitting formal parts): "Thanks for asking me to assess this patient with a lumpy area in the upper outer quadrant of her left breast. She has had x-rays of the breast, ultrasound and FNA from the suspicious area. She also had a small benign epidermoid cyst of the areola of her left breast. Clinically the lumpy area in the left breast is fibroadenosis and this is supported by all the methods we have available to make a diagnosis, short of doing biopsy. As the patient is still anxious about the lump, biopsy of the lump has been arranged at Calvary Hospital." 115 The report from Canberra Imaging concerning both mammography and sonography (ultrasound) on 19 February was as follows (omitting formal parts): "BILATERAL MAMMOGRAPHY: Dense nodular fibrocystic type parenchyma is seen bilaterally. The pattern is symmetrical. No discrete mass is evident. The known calcifications are seen bilaterally. There is no mammographic evidence of malignancy. JC/MP/dh DR JOHN CONNORS FRACR DR MARK PIERCE FRACR BILATERAL BREAST SONOGRAPHY: The breast parenchyma is sonographically dense consistent with the mammographically evident fibrocystic change. This is most marked at the superolateral quadrant of the left breast. No discrete solid or cystic mass is seen. There are no sinister features. This however should not deter further evaluation of any clinically suspicious masses. JC/dh Thank you for this referral. DR JOHN CONNORS FRACR" These reports are similar in form and conclusions to those of the appellant, the substance of which were as follows: "ULTRASOUND EXAMINATION - BREAST Thank you for referring this patient with palpable left breast lump following breast feeding. There is a cluster of mildly dilated lactiferous ducts lateral to the aerola in the left breast. The appearance of the ducts corresponds to the palpable findings. No suspicious lesions were identified. Medial to the left aerola there is a mildly dilated lactiferous duct which is slightly thick walled. This may be associated with possible low grade inflammation but in view of the lack of symptoms fine needle aspiration was not performed. The remainder of the left breast and right breast appear normal apart from mild prominence of the lactiferous ducts. A follow up study in 3 months is recommended to help confirm the resolution of the mildly dilated lactiferous ducts. /dl Title: BREAST ULTRASOUND Date seen: 14/08/95 DR B MOURATIDIS" "ULTRASOUND EXAMINATION - BREAST Thank you for referring this patient with palpable left breast lump. There is a small subcutaneous nodule in the left breast situated in the 3 o'clock position along the areolar margin. The appearances suggest a benign process such as lumph node or cyst and FNA was performed which yielded a small amount of clear fluid which was sent to cytology. Breast parenchyma in both breasts is otherwise normal. No suspicious features were noted. Mammography is suggested to further exclude malignancy /mm Title: BREAST ULTRASOUND Date seen: 13/12/95 DR B MOURATIDIS" All reports were as to the results of sonography and no more. 116 The plaintiff was seen by Dr Lawrence on 22 February and 27 February. The lesion by that time was approximately four by five centimetres in size. It had thus grown significantly in one month. This growth was described by one of the witnesses as exponential. On this evidence, there was a very significant increase in size between December and February. Dr Lawrence discussed the lesion with Dr Dyason, and it was agreed that proceeding to lumpectomy/biopsy was the most appropriate course, and this was undertaken on 28 February. 117 Dr Lawrence gave evidence. He was taken through his contemporaneous clinical notes and this added little to the significance of his first observations as recorded in the referral set out above, but he was able to give further elucidation concerning a consultation on 20 February. Part of his evidence as to this occasion is as follows: "And the next heading item is? --- I've simply written down that I'm concerned, hence plus plus, and I've indicated and the quote there is that I'm not 100% sure from the patient's point of view, and I've explained this to her at the time, that we know precisely what's going on. In other words, the negative mammogram and negative ultrasound in themselves cannot be taken as evidence that there's no pathological process. Well, what do you mean by that? --- What I would have explained to the patient at the time is that the finding of such a change in the breast and in the presence of a negative mammogram and a negative ultrasound should not deter one from continuing to investigate. By what method? --- Well, the next most logical method is either a biopsy of some form and there are a variety of methods, technical methods, for approaching that, or some sort of excision procedure which would either involve a lumpectomy or something more grand." Later, he said: "And so far as Dr Dyason was concerned, when you put down that you're concerned and you've queried what was happening, did you contact Dr Dyason? --- For your Honour, I should explain. The patient had in fact seen Dr Dyason on the 19th which was the day before and she'd returned to me with the news that he had felt this was likely to be a benign process of no concern, based on whatever evidence he had before him. I wasn't as convinced, and remained concerned that this was a significant or potentially significant problem, and I rang him whilst the patient was in the rooms to express my concern, and I remember the conversation quite clearly, he reaffirmed his - what he felt was his clinical constraint, and I suggested to him that I felt this was a pathological process. He asked me if the patient was concerned and I said not so much as that I was concerned, and he then agreed to proceed to an excision biopsy." 118 One point to be added to the evidence of his examination of 27 February is that he noticed deforming or dimpling apparently for the first time, which he said showed that the lesion was rapidly expanding. I should note that Dr Lawrence obviously made an error in saying that on 1 February he reviewed the mammogram and ultrasound results he had ordered. They were not done until 19 February. Indeed, he did not order the mammogram and ultrasound but, rather, Dr Dyason did. This mistake was repeated by his Honour. 119 The report by ACT Pathology in relation to the specimen obtained by biopsy was as follows (omitting formal parts): "Collection Date 28-Feb-1996 Lab Episode No. TO148396 (I) Specimen Type TISSUE NATURE OF SPECIMEN: LEFT BREAST BIOPSY HISTORY: Left Breast Biopsy. MACROSCOPIC: "LEFT BREAST BIOPSY" The specimen is not oriented, it consists of an ovoid mass measuring 41 x 32 x 19 mm. The consistency is firm to hard with a particularly hard central area. The outside was painted with blue dye. On sectioning the lesion has a solid appearance with an homogenous white to yellow cut surface. MICROSCOPIC: Sections show extensive involvement of most of the breast lump by multifocal invasive lobular carcinoma. This is associated with extensive areas of lobular carcinoma in situ. Invasive and in-situ lobular carcinoma are present at some of the diathermied surgical margins. DIAGNOSIS: EXTENSIVE INVASIVE AND IN-SITU LOBULAR CARCINOMA, EXCISION INCOMPLETE, LEFT BREAST LUMPECTOMY. Reported by Dr G BENNETT Dr P WHITING" (emphasis added) 120 Modified radical mastectomy was carried out by Dr Dyason on 7 March 1996. Part of the pathology report as to the tissue taken was as follows: "MICROSCOPIC: A: Sections from around the surgical cavity on all aspects show EXTENSIVE RESIDUAL MULTIFOCAL LOBULAR CARCINOMA with extensive areas of lobular carcinoma in-situ. This involves essentially all of the upper and lower outer quadrants. Tumour is present in lymphatic spaces. The separate subareolar nodule described macroscopically is also a focus of invasive lobular carcinoma. An adjacent section through the nipple shows another small focus of invasive lobular carcinoma. The deep surgical margin is clear of tumour. The breast tissue from the upper and lower quadrants show areas of benign fibrocystic disease, and the presence of some lobules showing residual lactational change. A total of thirty four axillary lymph nodes were found, and of these, thirty (including the apical node) show metastatic carcinoma. Many of the nodes involved are completely replaced by tumour, and extension into perinodal fat is present. B: A total of six lymph nodes are present in the tissue removed from the chest wall. ALL six show metastatic carcinoma." (emphasis added) 121 It will be observed from the pathology reports in February and March that there was a sub-areola nodule which was the focus of invasive lobular carcinoma, with an adjacent section showing another small focus of the same. The sub-areola and adjacent area was, no doubt, very close to the area investigated by FNA by the appellant in December without obtaining any evidence of carcinoma. It is also clear that the main area of lobular carcinoma was multi-focal. 122 In short, it was not until the observations of Dr Lawrence on 26 February as to the growth in the lump that the decision was made to undertake a biopsy. Up until then, three general practitioners, one consultant general surgeon and an unknown number of doctors involved in the February mammogram and ultrasound had examined the plaintiff. 123 In my opinion, the inconsistency between the recorded observations of Drs Willington and Tyson on the one hand, and Dr Lawrence, on the other, is most likely to be explained by the cancer growing exponentially in size after the examination in December. It is also noteworthy that, notwithstanding Dr Lawrence's observations, Dr Dyason did not notice anything upon physical examination which caused him to do other than refer the patient for mammography and ultrasound. Although, as the judge noted, there may have been some misunderstanding as to the site of the December FNA, if physical examination and palpation had demanded some form of biopsy - whether surgical or otherwise - without the necessity for mammography or ultrasound investigation, the consultant surgeon should have recognised the need for it. 124 It is also noteworthy that the results of the February mammography and ultrasound were quite consistent with the results obtained by the appellant in August and December, notwithstanding that by then the lesion had grown significantly. The Canberra Imaging report of those procedures does not refer to any clinical findings upon physical examination, apart from the tests undertaken. As with the appellant's reports, it was limited to reporting upon the result of the specific procedures undertaken. There is no evidence that the Canberra Imaging practitioners concerned ordered FNA or any form of biopsy, or contacted either Dr Lawrence or Dr Dyason and informed him of any clinical findings from physical examination, notwithstanding that the evidence of Dr Lawrence, the plaintiff and her husband as to the size of the lesion by then would indicate that it would have been obvious on clinical examination. This contemporaneous evidence of what was done (or not done) by practitioners in the appellant's field is impossible to reconcile with the basis for the finding against the appellant. 125 The other contemporaneous evidence to be considered was that of the husband of the plaintiff. In relation to this, his Honour said: "33. Even in the absence of any supporting evidence, I would have been satisfied to the requisite standard of the accuracy of Mr Brown's evidence that the both the lump in the areola and the lump in the upper left quadrant of the breast remained in situ throughout the period of approximately seven months between the time that he and his wife noticed them, and the time of the excision of the latter lump on 23 February 1996. His evidence as to the continued presence of the lump in the upper left quadrant was, however, generally consistent with the observations Dr Willington made on 14 August 1995 of an area of "firmer, lumpier tissue" in that area, Dr Lawrence's observations on 25 January and 20 February 1996 of a large lesion in that area and the excision on 28 February 1996 of a large ovoid mass from that area." 126 If what his Honour found was that the same area of the upper outer quadrant of the left breast had attracted attention from August to February, there could be no criticism. If his Honour was intending to find, based upon the evidence of Mr Brown, that the area presented clinically in the same way in February 1996 as it had in August 1995 to a medical practitioner upon palpation, then, in my opinion, such lay evidence, given six years after the event, in the circumstances pertaining, is a wholly inadequate foundation for such a finding. It will also be recalled that the husband had said that the lump had been growing rapidly between December and the examination by Dr Lawrence in late January. It is known, from Dr Lawrence's measurements, that it continued to grow appreciably up to his examination on 27 February. 127 Counsel for the plaintiff stressed the advantage which the trial judge had in assessing the evidence, particularly in the case of factual conflict involving witnesses who gave evidence, and cited many established authorities for that submission, culminating in Rosenberg v Percival (2001) 205 CLR 434. In my opinion, however, the body of contemporaneous evidence, mostly recorded as part of a system at a time before any reason to distort the facts had appeared, together with the virtually undisputed evidence as to the nature of lobular cancer, sonography and biopsy, is so powerful as to require cogent reasons for departing from it. It seems to me that the cumulative effect of this evidence was not appreciated or adequately considered by the trial judge and was, in some respects at least, misunderstood. It was not sufficient to simply accept the evidence of the plaintiff and her husband as to the precise state of the plaintiff's left breast upon palpation at particular times, given both the lapse of time between the events and the evidence, and the harrowing circumstances under which it was given, without carefully weighing it against the body of contemporaneous evidence to the contrary (State Rail Authority v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at [62]-[64], [93]-[94], [154]-[155]; Elliott v Kodak Australia Pty Ltd [2001] FCA 1804 at [31]). After all, the critical question was how the breast would have presented to a medical practitioner in August and December, exercising the care and skill of the ordinary practitioner in the field. The best evidence of that is what happened at the time. To deduce from the fact that a series of apparently qualified and competent practitioners did not detect a condition giving rise to such a level of clinical suspicion as to warrant biopsy forthwith that such a condition would not have been detected by the appellant is not to reintroduce the Bolam principle by the back door, but rather to give proper weight to the actual circumstances(Rogers v Whitaker (1992) 175 CLR 479 at 483, 487-487; Naxakis v Western General Hospital (1999) 197 CLR 269 at [18]-[21], [47], [81]; Rosenberg v Percival at [7], [63], [67]-[68], [219]). 128 I now come to those who expressed opinions about what the appellant should or should not have done. Principal amongst them was Professor Tattersall. I have set out the relevant parts of the report of his which was the foundation of the case particularised on behalf of the plaintiff. One of the difficulties in dealing with his evidence, and this class of evidence as a whole, is that objection was taken to the admission of much of it, but, because of the insistent pressures of time, the objections were not ruled upon when they were taken and, in the event, were, with a few exceptions, never ruled upon. Counsel for the appellant maintains the objections and submits that the failure to deal with them flawed the conduct of the case. There were two main strands to the objections. The first was that experts were permitted to express opinions outside their respective fields of expertise and, in particular, in relation to practice as to sonography, mammography, cytology and biopsy. The second was that they were permitted to give evidence as to the existence or non-existence of facts based on the observations apparently made or inferences apparently drawn by others as to, for example, whether, as a matter of fact, there was a discrete lump in the upper outer quadrant instead of an area of lumpiness, and whether a lump in that area would have been palpable in either or both August or December 1995. It was submitted that the admission of this evidence contravenes ss 59, 79 and 56(2) of the Evidence Act 1995 (Cth). The particular objections are identified (at least by category) in the amended grounds of appeal and supplementary submissions. 129 In my opinion, there was a basic flaw in the manner in which much of the expert evidence was led and then utilised on the most critical area of the case so far as the appellant was concerned. This is illustrated by the first report of Dr Tattersall and finds its way through much of the expert evidence relied upon on behalf of the plaintiff. The expert was invited to adopt a view as to the meaning of clinical notes and referral letters of others (in particular, by and from Dr Willington and Dr Tyson) to draw a conclusion as to what the underlying condition of the breast actually was based upon that meaning, then add to that conclusion an interpretation of later reported observations of others so as to infer (as a fact) what the actual clinical presentation of the left breast had been in August and December, and, on the basis of that inferred fact, to express opinions as to what the appellant should or should not have done. 130 The question was often put to the expert as to what the referring doctor would have expected of the appellant, based upon the notes of the referring doctor but going beyond the actual terms of the referral. In my opinion, that evidence is inadmissible. This is not to suggest that it would never be admissible for one medical practitioner to give evidence about the notes of another - the translation and explanation of technical terms might be a good example. It may also be admissible for an expert in an area to explain (for example) what procedure is necessarily involved in conducting an ultrasound. The disputed evidence goes further and is not given by such an expert. The inappropriateness of the process is illustrated in the present case because the clinicians who made the referrals (and contributed to the clinical notes) gave evidence contrary to the inferences drawn by Professor Tattersall, amongst others. 131 It is accepted on all hands that biopsy (by whatever means) would not be indicated without signs justifying it based upon clinical observation, mammography or ultrasound evidence. It is also agreed on all hands that the mere presence of lumpiness in a breast would not always indicate the need for biopsy, regardless of the result of mammography or ultrasound. Whether the signs are of that order is a matter for the clinician conducting the examination. The mere fact that mammography or sonography is ordered is no indicator that biopsy will be necessary if those techniques show no need for it. Professor Tattersall (and others) proceeded on the basis that Drs Willington and Tyson had, because of their reference to the upper outer quadrant of the left breast, made a clinical decision that their observation of it was of such suspicion of cancer that biopsy was required regardless of the result of the ultrasound examination. Whilst this may have been acceptable as an assumption, it was improperly treated as an inferred fact. The evidence of Drs Willington and Tyson is, in the event, to the contrary of the inference drawn or assumption made. 132 Having read the evidence of Professor Tattersall, in my opinion, there is little admissible that he could directly say about the conduct of the appellant. He was an oncologist - a physician whose field was the treatment of cancer once diagnosed, although, obviously, he had both knowledge and experience in relation to diagnosis. He was not expert in the practice of FNA, ultrasound imaging, cytology or surgery. This would not necessarily mean that he was not qualified to express an opinion. It is reason for caution as to whether an opinion is truly within his field of expertise. 133 The net effect of his evidence was that: (1) The appellant should have found the same signs on physical examination as did the referring general practitioners; (2) That being so, he should have done an FNA on the upper outer quadrant of the left breast in both August and December regardless of the lack of sonographic evidence of a focal lesion; (3) If he had done so, it is more likely than not that he would have discovered the cancerous cells. These conclusions are either the result of a process of deduction rather than a matter of expert opinion, or are beyond the professional competence of the witness, or both. It is also, as I have said, contrary to the evidence of Dr Willington and is not consistent with the evidence of Dr Tyson. It is also worth noting that Professor Tattersall agrees that lobular cancer is relatively rare, is multi-focal, is difficult to distinguish from other common and benign conditions, and is likely to be well-established before any focal lesion or mass is evident. However, he does not support a biopsy every time that any area of lumpiness appears in a breast. An example of the problem posed by the manner in which the evidence was led is as follows: "Knowing what you know, from the history of this matter, by the observations you've made of the clinical notes, and what you know from the examinations of Dr Willington, the nurse, and Dr Tyson, is it likely, first of all - this is the first question - that as at 14th August 1995, there would be no indicia of lumpy - firm lumpy tissue in the upper outer quadrant? --- My classical education is inadequate. Indicia? All right. Is it likely that you would be able as a clinician to find, if you'd done your job properly or at all, firm lumpy tissue in the upper outer quadrant on 14 August? --- Yes, I believe there would have been an abnormality present in that site. And ignoring what you know after - - - ? --- Yes.

• • • 13 December --- Yes. Putting together what you know from these two referrals, is it your opinion that a clinician doing his or her job properly would be able to find firmer lumpier tissue in the upper outer quadrant on 14 August '95? --- I believe so. 14 August '95 or 14 December '95? 14 August '95, first of all? --- Right. And on the 14 December '95, a clinician doing his or her job would be able to find those two lumps, first of all the lump at 3 o'clock and then the upper outer quadrant firmer tissue area? --- Particularly when this person has access to the previous referral, I believe that to be the case. In relation to both areas? --- Yes. Now, what is a person in your opinion in the position of Dr Mouratidis supposed to do with a lump that is suspicious and is not diagnosed as benign on presentation first of all on 14 August '95? --- Confirm that the lump is present, and if it's present to acknowledge that an explanation for its presence has not been reached. And also on 13 December '95 the same question? --- Confirm that there were three lumps and acknowledge that one of them had got bigger, a new one had developed, and that none of them had an explanation. And when it comes to carrying out the fine needle aspiration with these facts, first of all in your opinion should both areas have been aspirated on 14 August '95? --- I would expect Dr Willington who had written a referral to expect that to happen. And you? --- I would, if I'd written that referral, I would have expected that to happen." 134 The other medical specialist called on behalf of the plaintiff was Dr Sullivan, who described herself as a medical oncologist. She has a similar field of specialty to that of Professor Tattersall, and said she had worked with him since 1978 and had worked with him as a medical oncologist since 1983. Examples of the same problem in her evidence were as follows: "May the witness be shown Exhibit E, your Honour? Now, just going to the two referrals that are shown in that booklet, that's the one from Dr Willington of 10 August, and the one from Dr Tyson of 7 December? --- Yes. Just looking at what's recorded there in relation to the left breast, would you expect taking those two referrals into account only, that on 14 August 1995 that the lump at 3 o'clock would not be able to be found by a competent clinician? --- No. The request tells us about a lump at 3 o'clock on both occasions, 4 months apart. … If you take the full history that you are aware of from the volumes, and what you've read, is it - does that make it more or less likely that as at 14 August there would have been available to be found by a competent clinician the lump at 3 o'clock in the upper outer quadrant diagnosed as the least firm lumpy tissue? --- It would make it more likely. And is that the case, as well, in relation to the examination on 13 December 1995? --- The examination on the 13th - the request was on the - - - On the 7th? --- The 7th. So the examination by Dr Tyson. No, the examination by - - - ? --- Well, when the ultrasound was done.

1. That it would be necessary to reject the evidence of Dr Willington that she did not regard the area of lumpiness as of sufficient suspicion to warrant biopsy in the absence of a negative ultrasound in order to find negligence on the part of the appellant. If she, as a treating doctor, found no cause for such a level of suspicion, such knowledge and suspicion cannot be imputed to him.
2. The appellant did as was asked by the treating doctor, and it was for her, having received his report on the ultrasound, to consider whether there should be some form of biopsy.
3. As Dr Tyson found no more than general tenderness in the relevant area in December, it would be necessary to find that she was plainly negligent in not finding more and in not ordering a biopsy regardless of the result of any ultrasound. None of these were found by the judge. 152 In my opinion, the implicit admission of inadmissible expert evidence was sufficient to make the trial miscarry. The judge did not expressly refer to the evidence of Professor Tattersall, Dr Sullivan and Dr Lawrence in that part of the reasons which concerned the particular issue upon which I have focussed. However, he did comment favourably upon their evidence, and his reasoning is consistent with his being influenced by their opinions. In any event, some of the evidence of Dr Levi to which express reference was made has the same defect. 153 The evidence that the clinical responsibility for the patient did not rest with the appellant which was given by Dr Levi is consistent with the evidence of a number of witnesses, including Drs Willington, Tyson, Lawrence, Jain and Professor Langlands, and with the actual conduct of Dr Lawrence once the plaintiff became his patient. It is of interest to note that Dr Lawrence referred the plaintiff for surgical excision in the light of his observations in late January, and repeated the referral with more emphasis after his observations later in February when there was clear evidence of the lump growing. That is not to suggest that if the appellant had actually clinically observed something which demanded biopsy but which was not confirmed by ultrasound that he could have ignored that circumstance. He would, at the least, have to expressly advise the referring doctor. 154 A good deal was said during the evidence about the so-called "triple test" referred to in the finding against the appellant, namely, the necessity of excluding cancer by one of: (i) clinical observation, (ii) mammography and ultrasound, or (iii) biopsy. That evidence was given in September 2001. The evidence of Dr Willington is that guidelines referring to the triple test were not in existence at the time of the examinations in 1995 and were only promulgated by the Royal College of General Practitioners in 1997. Those guidelines are not in evidence, and no evidence was called as to the state of professional opinion as at 1995 as to the criteria which would warrant a biopsy notwithstanding negative mammography and sonography. The submissions for the respondent, consistently with the conduct of the trial on behalf of the plaintiff, appeared to suggest that because lobular cancer will often not be discernable on physical examination, or by mammography or sonography, any abnormality of the breast which could conceivably indicate the presence of lobular cancer would require a biopsy. As it is also clear that FNA is not well suited to detect multi-focal lobular cancer, it would follow that a core biopsy or perhaps even an excision biopsy would be required in every such case. As generalised tenderness or lumpiness might indicate lobular cancer, if the triple test is to be administered in the way contended for, then there is much to be said for the submission of counsel for the appellant that there are serious implications for the practice of this kind of medicine in the ACT, and, no doubt, elsewhere. It would leave little, if any, discretion to the clinician. The consequences of such large-scale invasive diagnosis, both for patients and for the resources available for medicine, are somewhat alarming. In this connection, it needs to be recalled that, in the present case, generalised lumpiness in August and generalised tenderness in December are each said to have sparked the necessity for an invasive diagnostic technique without more. It is, of course, not difficult to see the attraction of that argument in a case where, with the benefit of hindsight, it may be thought that a throw of the dart at the dartboard may have assisted the unfortunate plaintiff. It is quite another to say that this is an appropriate general rule for the diagnosis of a complaint as inherently difficult to diagnose in its early stages as is lobular cancer. The dangers of being influenced by the harm which eventuates in the individual case after the event have been, again, recently stressed (per Gleeson CJ in Rosenberg v Percival at [16]). 155 Even if the triple test is to be undertaken, the evidence is that there is no necessity for the one practitioner to carry out all limbs - indeed, few would be so qualified. There is no necessity for a person referred the task of carrying out one limb of the test to carry out the others. In my opinion, the judgment of the Supreme Court blurs lines of responsibility for patients by imposing general clinical responsibility for a patient upon a specialist with a particular and narrow field of expertise, involving administering a particular test or procedure. It is one thing to require such a person who observes something of concern to deal with it or pass it on to those who have the responsibility of doing so, it is quite another to impose upon that person the clinical obligation of looking for the problem. By way of analogy, if a barrister specialising in tax is briefed by a solicitor to advise on the stamp duty aspect of a transaction, the barrister will need to understand the structure and mechanics of the transaction and, in doing so, might detect some possible breach of corporations law. In that event, it might be the duty of the barrister to pass on that concern to the solicitor, but no duty would lie upon the barrister to vet the transaction for potential breaches of the corporations law (cf Heydon v NRMA Ltd (2000) 51 NSWLR 1 at [309], [312], [313], [349], [364], [365], [402], [417], [420] and [649]). 156 I am satisfied that the appeal ought to be allowed, and the judgment below set aside. If my view were to prevail, there would be a question as to whether there ought to be a new trial or a verdict for the appellant. As my view will not prevail, it is not profitable to resolve that question, or the issue of costs which would depend, in part, upon such resolution. I certify that the preceding seventy one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 7 November 2002 Counsel for the Appellants: Ms J Morrish QC and Ms L Walker

Solicitor for the Appellants: ACT Government Solicitor

Counsel for the Respondent: Mr F J Purnell SC and Mr D J C Mossop

Solicitor for the Respondent: Maliganis Edwards Johnson

Date of Hearing: 20, 21, 22 August 2002