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[2006] NSWDC 34
District Court of NSW
2006-08-23
Badgery-Parker J
Original judgment source is linked above.
CITATION: Panagiotopoulos v Rajendram [2006] NSWDC 34
DECISION: Verdict and judgment for the defendant.
CATCHWORDS: MEDICAL NEGLIGENCE - claim in respect of psychiatric disorder arising out of death of plaintiff's wife due to cancer and her treatment prior to diagnosis of cancer - alleged failure of general practitioner to appreciate significance of results of tests undertaken by another general practitioner - alleged failure to give appropriate advice - failure to pass on test results to specialist to whom general practitioner referred plaintiff's wife - negligence, causation and "loss of chance" of prospect of cure in third party context - whether psychiatric disorder established
Gavalas v Singh (2001) 3 VR 404; [2001] VSCA 23 Gregg v Scott [2005] 2 AC 176; [2005] UKHL 2 Jones v Dunkel (1959) 101 CLR 298 Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 New South Wales v Burton [2006] NSWCA 12 CASES CITED: Rowe v McCartney [1976] 2 NSWLR 72 Rufo v Hosking [2002] NSWSC 1041 Rufo v Hosking (2004) 61 NSWLR 678; [2004] NSWCA 391 Shorey v PT Ltd (2003) 197 ALR 410; [2003] HCA 27 Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35 Tran v Lam (unreported, NSWSC, Badgery-Parker J, 20/6/1997, BC9705945) Watts v Rake (1960) 108 CLR 158
PARTIES: Periklis Panagiotopoulos (Plaintiff) Dr Indran Nayagampillay Rajendram (Defendant)
COUNSEL: Mr D Hirsch; Ms C Sclavos (Plaintiff) Mr M Kearney (Defendant)
SOLICITORS: Niall Connolly Lawyers (Plaintiff) Blake Dawson Waldron (Defendant)
1 HIS HONOUR: The plaintiff's claim against Dr Rajendram, a general practitioner, arises out of the death of the plaintiff's wife, Angela Panagiotopoulos, and Dr Rajendram's failure in a consultation on 11 April 1996 and another consultation on 11 June 1996 that Dr Rajendram had with Mrs Panagiotopoulos, to take steps that would, it is alleged, have detected the fact that Mrs Panagiotopoulos was suffering from colorectal cancer.
2 Mrs Panagiotopoulos' cancer was detected following further consultations with Dr Rajendram and tests arranged by him in late September and early October 1996 (and no complaint is made concerning these consultations). On 23 October 1996 Mrs Panagiotopoulos underwent surgery in which a carcinoma of the rectosigmoid colon was removed. Also excised were Mrs Panagiotopoulos' uterus, ovaries and other tissue in the peritoneal cavity such as lymph nodes, which were found to be invaded to a very significant degree by metastases from the colorectal cancer (see Exhibit "11" pp 95-96 and 98-99). During the operation an intraoperative ultrasound detected metastases of the same origin in Mrs Panagiotopoulos' liver. Efforts were made via chemotherapy to reduce the metastases in the liver and in February 1997 portions of Mrs Panagiotopoulos' liver were excised. Despite these efforts and continuing chemotherapy over the next two years, Mrs Panagiotopoulos succumbed to lung cancer and then finally cerebral cancer and died on 22 March 1999.
3 The plaintiff's claim is that he suffers from a psychiatric disorder as a result of the negligence of Dr Rajendram. The case as pleaded (the Ordinary Statement of Claim filed on 21 May 2001 was amended by leave granted on 9 August 2006) is that:
(1) the death of Mrs Panagiotopoulos was "occasioned by the negligence of Dr Rajendram" (para 11) - the negligence was there particularised and I shall return below to the particulars of negligence now relied on;
(2) as a result of the circumstances surrounding the death of Mrs Panagiotopoulos, the plaintiff "suffered severe nervous shock" (para 10).
4 A case pleaded in contract was implicitly, and later expressly, abandoned.
5 In the course of both oral and written submissions Mr D Hirsch, counsel for the plaintiff (who appeared with Ms C Sclavos of counsel), emphasised that this was "not a wrongful death case". He accepted that the plaintiff could not establish on the balance of probabilities that Mrs Panagiotopoulos would be more likely than not to have lived for longer than she did had diagnosis of carcinoma of the colon and liver metastases been made in April 1996. The claim was however developed on the basis that:
(1) had diagnosis of cancer been made by April 1996 or even June 1996, there was a real prospect that Mrs Panagiotopoulos might have survived;
(2) that the plaintiff believed on a rational basis that had diagnosis been effected in April or June that his wife would have survived (see the plaintiff's evidence at T58.4-6, T65.58-T66.14);
(3) that the delay in diagnosis caused Mrs Panagiotopoulos pain and discomfort (ie from April to September) that would have been precluded had diagnosis been made in April or alternatively June, and that pain and discomfort was distressing to the plaintiff.
6 The circumstances in which Dr Rajendram (for whom Mr M Kearney of counsel appears) saw Mrs Panagiotopoulos on 11 April are somewhat unusual, as is the course of events between 11 June 1996 and 23 September 1996.
7 Mrs Panagiotopoulos had seen Dr Rajendram from time to time throughout 1992 to 1996. She also saw another general practitioner, Dr Lewis, from time to time and more frequently than Dr Rajendram, unbeknown to Dr Rajendram. According to the plaintiff this was because Dr Lewis spoke Greek, although Dr Rajendram's evidence was that he regarded Mrs Panagiotopoulos as competent in English: T351.31. On 2 April 1996 Mrs Panagiotopoulos consulted Dr Lewis complaining of left sided chest pain, and mentioning that she had had two menstrual cycles that month. She said that she did not wish to see a gynaecologist. Dr Lewis diagnosed "stress/headaches" but ordered blood tests because of the history of irregular bleeding: see Exhibit "J". On 4 April 1996 blood test results were taken by Sugerman's Pathology, and on 11 April 1996 Mrs Panagiotopoulos attended on Dr Lewis. The results as obtained by Dr Lewis showed two abnormal results from the tests conducted on 2 April 1996: one a liver function test ("LFT") showing 136 U/L of alkaline phosphatase or serum alkaline phosphatase ("SAP") when the normal range was 40-125 U/L; and one a blood test showing 5 umol/L of iron (10-30 umol/L normal), and saturation 0.07 (0.15-0.55 normal): see pp 2 and 4 of Exhibit "A". SAP is sometimes abbreviated as "ELP" but I shall refer to it as SAP in the balance of these reasons.
8 At the consultation of 11 April 1996 with Dr Lewis, Mrs Panagiotopoulos complained of wind and Dr Lewis prescribed charcoal tablets for that complaint. So far as the iron deficiency was concerned, he prescribed Fefol (an iron supplement). He also recommended that she undergo a liver/spleen ultrasound, and he gave her the order for that test. Dr Lewis in a statement said "I ordered this because the liver function test showed abnormally high alkaline phosphatase and all abnormal results needed to be investigated": para 6 of Exhibit "J". Dr Lewis was not required for cross examination. The way it is expressed by Dr Lewis is consistent with an approach that all abnormal results in his view ought be investigated or alternatively that in the case of this particular patient, all abnormal LFT results should be investigated.
9 Following consultation with Dr Lewis on 11 April, Mrs Panagiotopoulos on the same day went with her husband (the plaintiff) to a consultation with Dr Rajendram. The plaintiff's evidence is that he and his wife went to Dr Rajendram for a check up as they were both due to leave for Greece within a short period and both wanted a check up before departing. The plaintiff's evidence was that he did not know that his wife had been to see Dr Lewis a week or so earlier or that she had seen Dr Lewis that morning to discuss the results of the tests ordered by Dr Lewis.
10 The plaintiff's evidence is that Mrs Panagiotopoulos told Dr Rajendram (the plaintiff hearing this for the first time in the surgery) that she had some blood tests done (on the recommendation of Dr Lewis) and that she said she did not yet have the results. According to the plaintiff, Dr Rajendram said that he could obtain those results himself from Sugerman's Pathology, Dr Rajendram did obtain the results and Dr Rajendram told the plaintiff and his wife that he was of the view that they could travel to Greece. Dr Rajendram however, according to the plaintiff, did say that he wanted Mrs Panagiotopoulos to repeat the LFTs on her return from Greece in two months time.
11 Dr Rajendram's notes of the consultation are in evidence and have been transcribed. Dr Rajendram did obtain a copy of the 2 April blood test results (from Sugerman's) in the form of pp 9 and 10 of Exhibit "1", and his notes refer to blood tests arranged by Dr Lewis, noting an elevated SAP and low iron, and noting that the LFT should be repeated in two months.
12 Dr Rajendram was aware from earlier consultations that Mrs Panagiotopoulos suffered from fibroids on her uterus: T342. He was aware that she was peri-menopausal or menopausal (T345.55-T346.4) and he knew of her general medical history from his consultations. He enquired as to her general health: T367.45-47. He regarded Mrs Panagiotopoulos as a healthy person (T345) (and the plaintiff confirmed that this was his perception too (T56.23)), and on 11 April she made no mention to him of any illness, sickness or complaint: T345-T346. Dr Rajendram has no recollection of what else transpired at the consultation which was attended by the plaintiff as well as Mrs Panagiotopoulos save that he was told that the reason for tests being ordered by Dr Lewis was "just a check-up": T345.21. The plaintiff's evidence was that the following conversations also took place during the consultation on 11 April:
(1) that Dr Rajendram had made an enquiry about diet and the plaintiff told Dr Rajendram that his wife had had a few scotches the night before the test (T188.26-29);
(2) that Dr Rajendram told him that the tests indicated that there was a little problem with the liver (T187.49-T188.56).
13 Dr Rajendram could not recall that he was told these things but he accepted that it was possible that he was, and expressed the view that diet and consumption of alcohol could produce some minor abnormalities in the results. That SAP could be elevated by alcohol intake was confirmed by Professor Tattersall (T249.16 and T250) and Professor Tattersall confirmed that the SAP was "mildly" elevated: T250.7. Dr Walsh, an expert who gave evidence on behalf of Dr Rajendram, spoke of the effect of diet on iron levels: T450. Dr Rajendram says that the plaintiff or his wife said that the tests were abnormal and that he formed the same opinion but they were not alarming - the signs of iron deficiency were common in a peri-menopausal/menopausal woman (see T345-346) and he says he told them that the results were abnormal but that she could go to Greece and have tests repeated in two months on her return to Australia.
14 On 16 April Mrs Panagiotopoulos returned to consult Dr Rajendram concerning a problem with her thumbnails, for which he prescribed an ointment. The plaintiff and Mrs Panagiotopoulos did travel to Greece and were away for approximately six weeks.
15 The test results which Dr Rajendram obtained were in one respect different to those obtained by Dr Lewis. Those provided to Dr Lewis showed not only the results of the 2 April blood test and LFT but also the results of an earlier LFT in October 1995. Those provided to Dr Rajendram by the pathology laboratories did not contain the October results: see Exhibit "1" (a copy of what was relayed to Dr Rajendram subsequently: T344-T345). The October 1995 results were all normal. An elevated SAP, apart from possibly being a result of alcohol or dietary intake, can reflect a number of ailments, not only liver problems, and may sometimes occur for no particular reason (T446.40-50 and T449) (see Dr Walsh Tab 2 Exhibit "2"). It may reflect the fact that the liver is not functioning properly. A blockage of the biliary duct for example will affect liver function, and an elevated SAP may reflect this. If the metastases in the liver are causing obstruction of the biliary duct, that can cause a malfunction of the liver and produce an elevated SAP, but that is only one of the possible reasons for malfunction. The presence of metastases in the liver will not of itself cause the liver to function inadequately, and indeed the liver can function adequately even where up to 90 percent of its mass has been invaded by cancer cells: see Professor Tattersall's evidence at T248-250 and Professor Clarke's evidence at T416.10. There is another test result for gamma-glutamyl transferase ("GGT"), which is regarded as significant in indicating problems. As at 11 April 1995 GGT was within normal range.
16 On 11 June 1995, Mrs Panagiotopoulos returned to Dr Rajendram's surgery with her husband. According to Dr Rajendram's notes, Mrs Panagiotopoulos complained of vaginal discomfort (persisting for two months), and pain on sitting. Dr Rajendram could not, due to Mrs Panagiotopoulos' pain, examine her rectum with a proctoscope or even digitally. He referred Mrs Panagiotopoulos to a general surgeon who was in private practice but an honorary specialist at Canterbury Hospital, a Dr Hugh Carmalt. Dr Rajendram referred Mrs Panagiotopoulos by a referral note which contained the following: "pain in anal area. Unable to proctoscope because of pain ? cause".
17 Dr Rajendram did not mention the blood tests in his referral. Dr Rajendram's evidence was that the referral by its terms indicated that he was seeking Dr Carmalt's opinion as to the cause of the pain and how it should be rectified (T378.20-24), which was not effectively challenged (see T381-T382) and which I accept. At T379.25 Dr Rajendram indicated that he had forgotten about the notation made on 11 April for a repeat of the blood test. He explained later that this had occurred because he had started a new card for Mrs Panagiotopoulos on 15 April 1996 and he did not look at the old card and secondly (T384.28-30): "because she presented in such a dramatic and painful fashion, that any thoughts of doing a repeat blood test sort of went out of the window."
18 He also said at T378 that he did not forward the test results he did have (from April) (T378.25-45): "Q. In order to find the source of the problem do you agree with me that he ought to have been provided with a full and accurate history from you?
A. Provision of the blood test result was an oversight on my part, because at that point I didn't have the idea of - I didn't entertain the idea of Mrs Panagiotopoulos having a colorectal cancer.
Q. When you say it was "an oversight" on your part, you now say you should have provided that to him?
A. If I [had] that diagnosis in mind I would have, yes.
Q. The fact is you didn't have any diagnosis in mind, did you?
A. No, I had - it was like an open thing in my mind.
Q. And because it was an open thing in your mind and you were asking for someone else's opinion, it was important, I put it to you, to provide that person with a full and accurate history. Do you agree with that?
19 Dr Rajendram made no note of any complaint of rectal bleeding on this occasion and he said that had such a complaint been made he would have written it in his notes. I think it most unlikely that he was told of rectal bleeding and did not write it down, either on the card or on the referral. For that reason coupled with reasons I shall develop, I would not accept the plaintiff's assertion that his wife did complain of rectal bleeding to Dr Rajendram, although it does not follow that Mrs Panagiotopoulos did not have intermittent rectal bleeding at that time. Certainly, either she or the plaintiff on 19 June told Dr Carmalt of intermittent rectal bleeding.
20 An appointment was made for Mrs Panagiotopoulos to see Dr Carmalt on 19 June 1996 and she saw Dr Carmalt on that date. He also had difficulty examining Mrs Panagiotopoulos and arranged for a colonoscopy to be performed with a Category 1 rating (ie high priority) on 8 July 1996. Dr Carmalt was given a history of rectal bleeding for six months by the plaintiff. If the plaintiff did say that, it was accepted by Mr Hirsch that it was incorrect, because on the plaintiff's case the first bleeding occurred whilst they were on holiday in Greece and towards the end of the holiday ie in late May or early June. I shall return to this point later.
21 Prior to the colonoscopy, Mrs Panagiotopoulos experienced further severe anal pain and was admitted to the Emergency Department of Canterbury Hospital on 4 July when she came under review of a Dr Claxton. Dr Claxton noted a large skin tag and anal fissure.
22 A rigid sigmoidoscopy was performed by Dr Carmalt on 8 July, but due to the failure to properly prepare Mrs Panagiotopoulos for the examination, Dr Carmalt's view of the colon was obscured by a large amount of faeces. He could detect no problem in the area that was visible. He noted that Mrs Panagiotopoulos was suffering from moderately large haemorrhoids and that he had performed a "lateral subcutaneous sphincterotomy" to deal with a muscle spasm in the internal sphincter. Haemorrhoids incidentally are a reason for blood loss and low iron (T438.55). Dr Carmalt reassured Mrs Panagiotopoulos and the plaintiff "that she had no serious pathology in her anal canal to account for her pain". He noted that Mrs Panagiotopoulos was also complaining of pain in her vagina but on examination he could find no abnormalities: see p 13 Exhibit "1" (Dr Carmalt's letter to Dr Rajendram). The plaintiff gave evidence that Dr Carmalt suggested that Mrs Panagiotopoulos might be "crazy", and how angry that made him feel.
23 Dr Carmalt did arrange to see Mrs Panagiotopoulos in a further four weeks.
24 Dr Rajendram saw Mrs Panagiotopoulos again on 29 June 1996, and having received Dr Carmalt's letter and on learning from Mrs Panagiotopoulos that the sphincterotomy had not relieved her peri-anal pain, he arranged for referral of Mrs Panagiotopoulos to a Dr Ann Davies, a gynaecologist. Dr Davies arranged an ultrasound of the pelvic region and the test proved negative on a preliminary basis, and the final report to the contrary was in evidence: see p 68 Exhibit "1". Dr Davies reported back to Dr Rajendram that she had received a preliminary pelvic report confirming the presence of fibroids but that she was unable to determine the cause of Mrs Panagiotopoulos' problems. Dr Davies mentioned that she had spoken to Dr Carmalt who was willing to see Mrs Panagiotopoulos again.
25 On 15 August 1996, Dr Carmalt saw Mrs Panagiotopoulos again, but was unable to determine a cause (p 16 Exhibit "1"), suggesting to Dr Rajendram referral to another surgeon. Notwithstanding the fact that he had not been able to perform a full colonoscopy, he did not, to Dr Rajendram at least, indicate that any further step should be taken before he (Dr Carmalt) could reach a conclusion as to his ability to diagnose what was causing her pain.
26 As I have noted, the plaintiff's case is that he suffered a psychiatric injury by reason of the negligent treatment of Mrs Panagiotopoulos by Dr Rajendram. The negligence is said to be constituted by the following matters:
(1) Dr Rajendram did not recognise that the abnormal blood tests of 2 April 1996 that he reviewed on 11 April "could indicate a serious condition";
(2) he did not ensure that further investigation be done before Mrs Panagiotopoulos (and the plaintiff) travelled to Greece at the end of April;
(3) he failed to contact Dr Lewis on 11 April to discuss the LFT results;
(4) he did not repeat the blood tests on 11 June as he had planned to do;
(5) he failed to advise Dr Carmalt of the abnormal test results at the time of referral.
(See para 9 of the Outline of Plaintiff's Submissions of 21 August 2006.)
27 There are relatively few factual matters in dispute in respect of the basal facts of what occurred between 2 April (when Mrs Panagiotopoulos saw Dr Lewis) and 11 June, or indeed of what occurred on and after 11 June 1996. The areas of dispute are:
(1) whether the plaintiff and his wife attended on Dr Rajendram for a second opinion;
(2) whether on 11 June Mrs Panagiotopoulos complained of rectal bleeding to Dr Rajendram (I have dealt with this above and I find that there was no complaint of rectal bleeding to Dr Rajendram on 11 June);
(3) whether Dr Rajendram's advice to Mrs Panagiotopoulos on 11 April fell short of the standards of a reasonably prudent general practitioner;
(4) whether Dr Rajendram's failure to pass on the fact of the LFT results obtained in April and/or his failure to order a new LFT fell short of the standards of a reasonably prudent general practitioner;
(5) if the answer to (3) or (4) is yes, whether Dr Rajendram's failure to take proper care:
(a) caused Mrs Panagiotopoulos to lose a chance of recovery that she would have had if diagnosis of the colorectal cancer had been effected in:
(ii) June/July, rather than September/October 1996.
(b) caused Mrs Panagiotopoulos to suffer rectal pain for longer than she otherwise would have;
(c) caused the plaintiff to suffer a recognised psychiatric disorder.
28 A claim that referral to Dr Carmalt was inappropriate was abandoned. A claim that Dr Rajendram had seen Mrs Panagiotopoulos in December 1995 and that she had then complained to him of rectal bleeding was also abandoned, it being clear that Dr Rajendram did not see Mrs Panagiotopoulos in December 1995 and that there was no history of rectal bleeding reported to Dr Rajendram at that time; notwithstanding the plaintiff's earlier assertion to Dr Brown that there had been: see T60. A claim that management after 11 June by Dr Rajendram was inadequate was abandoned, the focus of the case being, as it developed, the period between 11 April 1996 and 11 June 1996, and particularly 11 April 1996, since it seemed to be accepted in submissions that if Mrs Panagiotopoulos had a chance of recovery as at June 1996 it was an extremely limited chance (and see [59] below in which Professor Tattersall describes "disease spread in the pelvis" as at June as being "almost certain").
29 In support of his claim that Dr Rajendram breached the standard of care of a prudent general practitioner, the plaintiff relies on the reports of Professor Martin Tattersall and Dr Edward Kremer. Professor Tattersall, who is a specialist in cancer medicine, gave evidence as to what he thought a general practitioner should do. He acknowledged that he was a general practitioner only for a brief period many years ago (T252.5), but he does lecture medical students and general practitioners on prevention, early detection and management of cancer. In his opinion, Dr Rajendram should have:
(1) enquired on 11 April why the iron indices were measured and whether there had been any known blood loss or change in bowel habit which might point to a source of bleeding;
(2) enquired whether SAP had previously been measured and whether there was a change which required an explanation;
(3) arranged a repeat blood test sooner rather than later, and before Mrs Panagiotopoulos left for Greece;
(4) arranged an occult blood test which would have almost certainly shown blood in the faeces and "At this point imaging of the intestine should have been done to document the site of blood loss";
(5) arranged for identification of the cause of the "rising" SAP which would have led to imaging of the liver and/or the bone in April 1996. He then says (Exhibit "F"): "At this time in April the cancer in the intestine would have been identified as the source of the blood loss. This would prompt referral to an appropriate specialist. Referral to a general surgeon (like Dr Carmalt) with the results of the abnormal tests would have led a prudent general surgeon to treat the cancer appropriately."
(6) when seen in June, Dr Rajendram "ought to have arranged further blood tests as he said he would. Those blood tests would likely have demonstrated increasing abnormality of the SAP and possibly other liver function tests, and persisting low iron indices": p 2 Exhibit "F";
(7) "Proper management by Dr Rajendram in June was referral to a general surgeon with the abnormal test results. A general surgeon with the history obtained by Dr Carmalt (anal pain and intermittent rectal bleeding) plus the abnormal blood test results would have imaged the colon and the cancer would have been diagnosed. Operation at that time could have detected extension of the tumour outside the bowel to involve adjacent structures thereby documenting the cause of the new symptoms. The status of the liver could also have been investigated by intraoperative ultrasound to assess the cause of the worsening liver function tests and to determine whether hepatic surgery was an important component of curative treatment": p 2 Exhibit "F".
30 Dr Kremer, a general practitioner who has been in practice for 35 years, also gave evidence on behalf of the plaintiff. He sits on "the expert medical panel of the Royal Australian College of General Practitioners": T271.15, and see T271.51-T272.2. Dr Kremer understood that Mrs Panagiotopoulos had presented to Dr Rajendram in December 1995 and April 1996 with rectal bleeding, which is incorrect. He expressed the view that referral to Dr Carmalt was inappropriate (a view not shared by Professor Tattersall and not persisted with by the plaintiff). He was critical of Dr Rajendram for not recognising Mrs Panagiotopoulos as suffering from anaemia and for failing to mention in the referral to Dr Carmalt that Mrs Panagiotopoulos had abnormal LFT results and abnormal blood test results. He asserted in his report that Dr Rajendram, even without a history of rectal bleeding, should have arranged for blood tests to be carried out immediately: p 17 Exhibit "B". In his oral evidence he said Dr Rajendram should have encouraged Mrs Panagiotopoulos to see a doctor in Greece or alternatively have organised a CT (computed tomography) scan of the abdomen and pelvis "because that would have revealed any pathology that was present": T269.
31 Mr Hirsch conceded, correctly in my view, that Dr Kremer was not an impressive expert witness. He was combative and purported to answer questions even before they had been completed and he seemed unable to accept assumptions put to him eg see T287.55, T288.10, T291.2, T292.19-24, T299-301. In addition, his views seemed to be based on two misconceptions. One was that Mrs Panagiotopoulos had complained of rectal bleeding to Dr Rajendram as early as December 1995 (this misconception is found in the Statement of Claim), and the second that Mrs Panagiotopoulos was severely anaemic. Dr Kremer maintained his conclusions on the failure to meet an appropriate standard of care even after the rectal bleeding misconception had been removed, placing even more emphasis on the anaemia. I am satisfied on the basis of the evidence of Professor Clarke (T410-T412) and Professor Tattersall that Mrs Panagiotopoulos was not anaemic, and I found Dr Kremer's attempts to justify his assertions that she was, highly unpersuasive and contributing to his lack of credibility generally. Even Dr Lewis, concerned about the elevated SAP, recommended an ultrasound of the liver and spleen, not a CT scan of the abdomen and pelvis. An ultrasound scan of the pelvic region was performed at the behest of Dr Davies and it showed no pathology in the ovaries or uterus (no doubt the main focus) or anywhere else. Dr Kremer's insistence that the choice of Dr Carmalt as the specialist was inappropriate (a contention not persisted with by the plaintiff) also undermined his credibility: see T299-301.
32 Dr Norman Walsh, who was retained on behalf of the defendant and gave evidence of what ought be expected of a general practitioner, was in contrast an impressive witness. In essence, his view was that a mildly elevated SAP in an asymptomatic woman in her late 40s was not of itself a cause for concern (Tab 2 Exhibit "2", p 4 of report of 16 January 2006): "such a finding occurs frequently in general practice and is very rarely associated with serious disease in a patient without symptoms. Marked elevations of the serum alkaline phosphatase (two to three times the normal range) may be associated with some malignancies, particularly lung cancer. This enzyme is produced by liver and bone, making its elevation a non-specific finding. It is not considered to have any utility as a screening test for malignancy in asymptomatic persons. It may be elevated by conditions as trivial as a viral infection. In the great majority of cases, when elevation of the alkaline phosphatase is due to hepatic disease, the associated liver enzyme, GGT, rises in parallel with it. The pathology tests Dr Rajendram obtained from Dr Lewis did not indicate any alteration in the other liver function tests."
33 In his view (Tab 2 Exhibit "2", p 5 of report of 16 January 2006) "… the appropriate response to an isolated finding of a mildly elevated serum alkaline phosphatase in an asymptomatic woman of this age would be to perform a simple general physical examination (performed by Dr Lewis) with a repeat serum alkaline phosphatase and liver function test in three months. Imaging with ultrasound or CT in the absence of symptoms is an inappropriate initial management of an isolated finding of mildly elevated serum alkaline phosphatase, in my opinion. In all the clinical circumstances, only progressive or persistent elevation of Mrs Panagiotopoulos' serum alkaline phosphatase level would have merited further investigation with imaging procedures."
34 Dr Walsh did express the view in relation to the 11 June consultation which was not challenged in cross examination that (Tab 2 Exhibit "2", p 8 of Dr Walsh's report of 16 January 2006): "A general practitioner would not anticipate that a colorectal cancer arising as high as the rectosigmoid junction (as in Mrs Panagiotopoulos' case) could cause severe anal pain and spasm, owing to its distance from the anus. Such a presentation, I understand, is quite atypical for colorectal cancer arising above the anus and adjacent area."
That it was unusual was confirmed by Professor Tattersall at T225.35.
35 I set out from the plaintiff's written submissions the attack on Dr Walsh: "In assessing Dr Walsh as a witness the court would have regard to the following:
a. He deprecated Murtaugh's General Practice (T432.10)
b. But he lauded Harrison's Textbook of Internal Medicine (T432.50)
'Q. Can I ask you again, Dr Walsh, whether you agree with this passage from Harrison's, and I will start again, "True iron deficiency can be relieved by the administration of iron"?
Q. "But this alone does not constitute adequate therapy. It is imperative to seek and if possible to correct the cause." Do you agree with that?
Q. "Here the onus rests heavily with the physician since effective iron therapy alone will correct the anaemia temporarily but the opportunity to cure a malignant neoplasm, for example, carcinoma of the secum, or some other treatable condition may be lost if the cause is not discovered." Do you agree with that?
d. He accepted that iron deficiency could be caused by loss of blood (T438.20) and that this could be caused by cancer. (T439.5-20)
e. In his report he does not address the iron deficiency issue at all . He confines his opinion on Dr Rajendram's management to the question of whether the elevated SAP in isolation warranted earlier investigation. (Ex 2 p 6)
f. He disagreed with the statement in Harrison that in many cases elevated alkaline phosphatase is the only abnormality on routine liver function tests . (T445.30) And he disagreed with Dr Lewis who considered that all abnormal test results (here referring to the elevated SAP) needed to be investigated. (T446.35)
g. Despite all other medical witnesses in this case - including Dr Rajendram - recognizing that elevated SAP was associated with cancer, Dr Walsh considered the relationship "tenuous". (T447.10).
h. Despite all other evidence in this case that iron deficiency could be caused by blood loss (an important first sign of colorectal cancer) and elevated SAP could be a sign of cancer, Dr Walsh maintained that it would be unlikely that a GP would make a connection between the two. (T447.25)
i. Despite the fact that Dr Lewis had a benefit of a baseline normal SAP of 115 (in October 1995) and an elevation in the SAP to 136 (in April 1996) Dr Walsh denied that this showed a progression . (T448.50)
j. Dr Walsh maintained that a delay of 3 months in the investigation of the elevated SAP was acceptable - even with the added information of the iron deficiency (T449.45) and even in light of the warning from Harrison that where iron deficiency is seen
"the administration of iron…alone does not constitute adequate therapy. It is imperative to seek and if possible to correct the cause. Here the onus rests heavily with the physician since effective iron therapy alone will correct the anaemia temporarily but the opportunity to cure a malignant neoplasm, for example, carcinoma of the secum, or some other treatable condition may be lost if the cause is not discovered."
k. Although he agreed that a prudent GP would try to exclude the most serious possible causes of abnormal blood tests first (T450.50), he considered the possibility of cancer in this to be so remote that investigations to exclude cancer were not warranted in April. (T450.55-451.5).
l. Dr Walsh did not even consider that Dr Rajendram should have contacted Dr Lewis to discuss the abnormal blood tests - even though Dr Lewis had ordered them. (T451.5-30). This is despite Dr Rajendram himself agreeing that he should have.
m. Although exonerating Dr Rajendram completely for (even his own admitted) faults on 11 April, Dr Walsh conceded that blood tests should have been done when the couple returned from Greece and consulted Dr Rajendram on 11 June.
Dr Walsh puts the bar of proper GP practice unacceptably low. But he did agree that blood tests should have been done in June - so the diagnosis should have been made then."
36 In my view, there is nothing in item (a) - that textbook was not cited by any of the plaintiff's experts.
37 In so far as (b) and (c) are concerned, Dr Walsh did agree that Harrison is a respected text. He agreed with what was put to him at T444.50-T445.10, but disagreed with passages put to him at T445.30. Again, neither of the plaintiff's experts cited the passages from Harrison with which Dr Walsh agreed or disagreed.
38 In so far as (d), (e), (f), (g), (h), (j) and (k) are concerned, I think there is a degree of inappropriate conflation in the plaintiff's assertions. Dr Walsh accepts that iron loss can be connected to blood loss, and blood loss to cancer of the colon, and raised SAP could be connected to cancer of the liver, but Mrs Panagiotopoulos was not exhibiting the usual signs of colon cancer as at 11 April 1996 nor was she describing any symptoms at all, and she had conditions that explained her low iron (fibroids, peri-menopausal, low cholesterol diet: T437.35, T450.35, Exhibit "11" pp 48 and 56); her SAP was only mildly elevated (and the consultation had, on the plaintiff's case, elicited an explanation for that); and she was presenting to him as an otherwise healthy person whose only reason for seeing Dr Lewis was a check up and for seeing him for the LFT results and for advice on whether any follow up could await her return from Greece. The plaintiff seeks to turn the mildly elevated SAP in April, which on its own is non-specific and may be caused by a large range of factors, and which from what was demonstrated in October is now known to be causally connected to the carcinoma via metastases in the liver, into a warning beacon that mandated exclusion of colonic cancer. I see Dr Walsh as providing an explanation, and one which I accept, for why the mildly elevated SAP and low iron ought not, on the basis of what was then known to Dr Rajendram, have led to the need for an urgent further LFT (remembering that Dr Rajendram did recommend a further LFT in two months time): see T447.24-28. As Dr Walsh pointed out, Dr Lewis treated Mrs Panagiotopoulos' iron deficiency by prescribing Fefol as an iron supplement. That would not be appropriate if loss of iron was thought to be connected with a malignancy: T439.46.
39 In respect of (i), (progression evidence - see T448.50), I think Dr Walsh was entitled to reject the April SAP as a progression since in October the results were normal.
40 In respect of (l) and (m), I do not think that the fact that Dr Rajendram agreed in the terms he did, which is not how the submission is framed, should be seen as making Dr Walsh's views extreme. Dr Walsh's agreement that Dr Rajendram had not acted prudently on 11 June by failing to arrange a further LFT indicated that he was prepared to concede breach of duty where appropriate in his view.
41 I accept that it is relevant that Professor Tattersall in his report served on 9 August 2006 (the first day of the hearing) expresses the view that Dr Rajendram should have performed an occult blood test. His views are not shared by Dr Walsh. Dr Lewis did not suggest an occult blood test (nor did Dr Kremer for that matter). I am not persuaded that Professor Tattersall with his expertise in the field of cancer and lack of experience as a general practitioner should be preferred over Dr Walsh, and there is the further aspect that the cross examination of Professor Tattersall undermined Professor Tattersall's credibility in this case (see the matters set out at 69).
42 In relation to 26, the plaintiff asserts that Dr Rajendram in effect admitted that he had breached his duty of care. Dr Rajendram agreed in cross examination that it would perhaps have been wiser if he had contacted Dr Lewis and enquired why he had recommended blood tests before commenting on the test results: see T371.41-49 and T372.5-T373. Mr Kearney submitted that this was not an admission by Dr Rajendram that he had not acted appropriately with the information that he was given, but rather was an indication of Dr Rajendram's candour. Mr Hirsch submitted that since Dr Rajendram did not say, "I still would have done exactly what I had done had I known what I now know", the comment that with the benefit of hindsight he should have contacted Dr Lewis should be seen as an admission.
43 I do not think that Dr Rajendram's agreement that with the benefit of hindsight it perhaps would have been wiser that he contact Dr Lewis is an admission that he breached the standard of care imposed upon him. The question for this Court is whether objectively speaking Dr Rajendram's conduct fell short of the standard. Professor Tattersall did not in Exhibit "F" assert that Dr Rajendram ought to have contacted Dr Lewis, saying only that the reason for the iron indices being measured might prompt him to inquire why it had been done. Professor Tattersall did say that Dr Rajendram should have enquired why the iron indices were measured and whether there had been any known blood loss or change in bowel habit which might point to a source of bleeding. Dr Lewis' reason for ordering the LFT was not a concern about cancer (of the colon or liver or any other kind) but due to her irregular menstrual cycle, and no history of change in bowel habits or blood loss would have been discovered had questions been asked about this by Dr Rajendram (or Dr Lewis). Dr Kremer did not deal with this topic in his report (Tab 6 Exhibit "B") and did not think it was important who had ordered the tests (T269.34). There was no known blood loss or change in bowel habit as at April 1996 and hence no questions would have elicited such history.
44 Mr Hirsch in his submissions described Dr Rajendram as having dismissed the elevated SAP as insignificant, but that is an inaccurate statement since Dr Rajendram, it is agreed, recommended that further tests be done on Mrs Panagiotopoulos' return from Greece. On the evidence presented by the plaintiff, Dr Rajendram was told that Mrs Panagiotopoulos was in good health - no symptoms were described, and mention was made relevant to alcohol consumption the night before the tests which provided an explanation for the mildly elevated SAP. Dr Rajendram knew that Mrs Panagiotopoulos was peri-menopausal or menopausal (a matter relevant to low iron results). There is no evidence that had Dr Rajendram been told that the reason Dr Lewis had ordered the blood tests on 2 April was that Mrs Panagiotopoulos had described irregular menstrual cycles that this would have made the SAP or low iron results more significant in relation to the possibility of cancer of or affecting the liver.
45 Dr Rajendram appeared to me to be entirely candid with the Court and both his manner and the content of his evidence, having regard to the passage of time since 1996, lead me to regard him as a witness of truth whose testimony can be accepted.
46 For reasons to which I will return, the same cannot be said about the plaintiff. I accept Dr Rajendram's evidence that he was told by Mrs Panagiotopoulos and the plaintiff that Mrs Panagiotopoulos had seen Dr Lewis following some tests and that they wanted his opinion on whether further tests should be conducted before they travelled to Greece. There is no evidence before me that Dr Rajendram was told that Dr Lewis had recommended an ultrasound of the liver and spleen (and it was the plaintiff's case that Dr Rajendram was not told: see T189.32-39) but it is possible that he was told that. Dr Rajendram agreed that if he had been told that Dr Lewis had recommended such a test, he would not have counselled Mrs Panagiotopoulos against it (T372.34-49), although I think that is consistent with the advice that Dr Rajendram did give, that such test, even though it might become an option, should await the outcome of a repeated LFT.
47 In relation to 26, Dr Rajendram agreed that he did recognise that high SAP could indicate a serious condition (at T365-366 and see T357.37-44). It was not put to him that this evidence was false. Dr Rajendram's view was that the mildly elevated SAP, although required to be monitored, was not of sufficient concern to require a further test immediately, which links to issue 26. In relation to 26 it is established that he did not proffer advice that further investigation be carried out before Mrs Panagiotopoulos and the plaintiff travelled to Greece and the critical question is whether his failure to do so constitutes a breach of his duty of care to Mrs Panagiotopoulos (and derivatively to the plaintiff). I accept Dr Walsh's evidence and I am not persuaded that Dr Rajendram breached his duty of care to Mrs Panagiotopoulos in advising that further tests could be conducted two months after 11 April 1996.
48 In relation to 26 it is clear that Dr Rajendram did not contact Dr Lewis to discuss the LFT results. In relation to 26, it is established that he did not repeat the LFT on 11 June as he had planned to do, and it is established that he did not pass on details of the blood tests at the time of referral.
49 In relation to the last point 26 ie the failure to pass on the earlier results, I was initially concerned that the frank admission that he had, on 11 June, not looked at the earlier patient record card for Mrs Panagiotopoulos and had forgotten about the April results (T378 and T379), did not sit comfortably with his assertion at T378.25-45 that he did not link the presentation on 11 June with the earlier results, but on reflection the two are reconcilable in that Dr Rajendram can be taken as saying that, he having forgotten about the earlier test and not having the contents of the earlier card in front of him, the dramatic presentation ousted any consideration of her earlier consultations.
50 I think that Dr Rajendram's evidence at T378.25-45 does amount to a concession that all the current information he had about Mrs Panagiotopoulos including the April results should have been forwarded with the referral to Dr Carmalt. Even if it is not a concession, I think Dr Rajendram breached his duty of care to Mrs Panagiotopoulos by failing to consider the earlier consultation and to check his notes, and I think it more likely than not, given his evidence, that had he recalled the existence of the LFT he would have forwarded the results to Dr Carmalt.
51 Due to the fact that Dr Rajendram determined that Mrs Panagiotopoulos should undergo a further test on her return, and having heard from Dr Rajendram that he did not recall the earlier recommendation he had made because it was recorded on the previous card and because his mind was focussed on an extreme presentation, I am persuaded that his failure to arrange another test fell short of the standard to be expected of a general practitioner.
52 There remains the question however, as to whether there is demonstrated a causal connection between the failure in June to send on the existing April results or arrange new tests, and the absence of diagnosis of the carcinoma in the colon and liver metastases.
53 It is important to note that Dr Carmalt was informed of rectal bleeding (indeed for a far more extensive period than was the case) and significant pain in the anal (and vaginal) area, and he formed the view based on that information that a colonoscopy should be performed on an urgent basis, and arranged for that to occur. The colonoscopy if performed adequately would have almost certainly detected the carcinoma in the colon.
54 I have set out at 29 above a passage from the evidence of Professor Tattersall. There can be no doubt about that conclusion, but it does not support the proposition that had Dr Carmalt been informed of an elevated SAP or even progressively elevated SAP with or without information about low iron, that would have prompted a different course of action. I have at 29 set out another passage from Professor Tattersall's fourth report (Exhibit "F"). That passage does provide support for the proposition that had Dr Carmalt been provided with abnormal results in June and a history of anal pain and intermittent rectal bleeding, he would have imaged the colon.
55 In so far as the failure to arrange a fresh LFT on or around 11 June is concerned, there is a further issue. The plaintiff submits that the Court should find that LFT results on 11 June, if performed, would have shown an SAP higher than the SAP results in April. Reference is made to the massive increase of SAP between April and October (from 136 to 293): see Exhibit "C".
56 Professor Tattersall's evidence was that a more abnormal SAP level was certain in July (T243.5), leading to imaging, but he did not say anything about June. He indicated that he was no expert on the liver. The topic was not addressed by the defendant's witnesses (it not having been addressed in any served report). I have no doubt that had the LFT been performed in June it would have revealed at least the level of SAP recorded in April, but although I think it is a distinct possibility that it would have been higher in June than in April, I have some doubt as to whether I can draw the inference that a test on 11 June would have revealed a higher SAP than that which was reported in April. I have come to the view however, that given the progression from April to October, on the balance of probabilities, an LFT performed in June would have revealed a higher SAP than that found in April and again on the balance of probabilities that would have led to imaging given Dr Rajendram's evidence that he wished to see a repeat of the tests and did not regard Dr Lewis' approach of ordering an ultrasound as inappropriate.
57 It is important to bear in mind that Dr Carmalt arranged a colonoscopy, which had he been able to properly perform, would have indicated the presence of the colonic carcinoma. The elevated SAP was not, and could not be, indicative of a colonic carcinoma. Having failed to complete the colonoscopy it did not occur to him that LFT or blood tests might give some explanation for what was causing rectal and vaginal pain and he did not order such tests (and nor did Dr Claxton at Canterbury Hospital). I recognise that Professor Tattersall is saying that had Dr Carmalt been provided with evidence of a mildly elevated SAP in June, this would have led him to want to image the colon, but no one has suggested that carcinoma of the colon affects the SAP. The only effective test for colorectal carcinoma was a colonoscopy: see Dr Walsh's evidence at T452.20-25. What in fact was causing the elevated SAP was the blockage of the biliary duct as a result of metastases on the liver. Having regard to my concerns about the reliability of Professor Tattersall's evidence, and also the absence of any evidence from Dr Carmalt that had he had LFT results showing a mildly elevated or progressively elevated SAP he would have taken a different course, or at least evidence from someone in the same position as Dr Carmalt (ie a general surgeon with some colorectal experience, but not an expert in cancer medicine) that that would have prompted a different course, as well as the fact that rectal bleeding was a typical indicator of rectal cancer whereas mildly elevated SAP was not, I am left unpersuaded that the causal connection is in fact made out.
58 A significant part of the evidence in the case was directed to the question of whether, had the carcinoma and/or metastases been detected in April and operated on by late April (allowing a similar delay between detection and operation as occurred in late September and October 1996), Mrs Panagiotopoulos would have had a prospect of cure. In considering this question, I proceed upon the assumption that Dr Rajendram breached his duty of care on 11 April in not recommending further tests and on the assumption that such a step, if it had been taken, would have led to detection of the carcinoma in the colon and metastases in the liver in April or early May, and further and alternatively on the assumption that Dr Rajendram's failure to pass on the LFT results in June would have led to detection of the carcinoma of the colon and metastases in the liver by June or early July.
59 Professor Tattersall's view as originally expressed in his report of 26 September 2005 is (Exhibit "B" p 14): "If the cancer had been diagnosed and treated:-
In April - I believe spread outside the rectum would have mandated adjunctive radiation and chemotherapy with some chance of cure.
In June, I believe disease spread in the pelvis was almost certain, greatly reducing the probability of cure.
In July, I believe spread to the liver was much more likely than not, rendering the prospect of cure remote."
60 In his supplementary report of 9 August 2006 (Exhibit "F"), Professor Tattersall said: "In my report of 26 September I stated my opinion on the likelihood that the cancer was curable by treatment in April, June and July 1996.
The fact that there was change in the behaviour the liver metastases after the commencement of chemotherapy and prior to hepatic resection (the lesions stopped growing) supports the view that earlier diagnosis and treatment including the likely use of chemotherapy could have substantially improved the likelihood of a prolonged survival (prevention of the development of lung and brain metastases, and conceivably the development of the metastases in the left lobe of the liver first seen in March 1997)."
61 He responded to the reports of Professor Stephen Clarke and Associate Professor John Boyages, to which I shall refer below, by referring to a research paper ("Surgical Therapy for Metastatic Disease to the Liver", Bentrem et al, Annu Rev Med 2005, 56: 139-56, which became Exhibit "K"), which he argued demonstrated support for his views.
62 Professor Clarke and Associate Professor Boyages were of the view that diagnosis of cancer in April would not have had any impact on Mrs Panagiotopoulos' survival. Professor Clarke said (p 75 Tab 10 Exhibit "2"): "In particular, the size of the hepatic metastases and the large pelvic mass are indicative of the disease having been present for many months to even some years … I am certain that there would have been circulating tumour cells present plus it is likely that there had already been some establishment of metastatic sites."
63 Associate Professor Boyages said: "In my opinion, this patient had advanced disease at the point of her initial presentation in April 1996 causing significant discomfort and pain on sitting. It is almost inconceivable that a moderately differentiated adenocarcinoma would grow from no liver metastases to liver metastases measuring 18cm in the period between 11 April 1996 and 4 October 1996.
The patient in my opinion, had metastatic colorectal carcinoma in the liver at the point of diagnosis and at the point of the original symptoms.
… in my opinion liver metastases would have been found at the time of the initial surgery and the patient would have had treatable, but incurable, disease at presentation." (Tab 5 Exhibit "2")
"… In my opinion the patient almost certainly had disease which had spread at presentation and the patient would not have survived any longer.
… It is unlikely that the treatment would have been any different if diagnosed in April rather than October 1996." (Tab 7 Exhibit "2")
64 Associate Professor Boyages' reference to "significant discomfort and pain on sitting" is erroneously attributed to Mrs Panagiotopoulos' presentation on 11 April rather than 11 June, but nothing was made of this discrepancy and I do not think it affects the essential thrust of his evidence.
65 Professor Clarke made reference, in his brief evidence in chief, to Exhibit "K" and another abstract "Rescue Surgery for Unresectable Colorectal Liver Metastases Downstaged by Chemotherapy - A Model to Predict Long-Term Survival" by Rene Adam et al, Annals of Surgery, Vol 240, No 4, October 2004: Exhibit "15". Professor Clarke explained why the patients referred to in Exhibit "K" were of a different kind to Mrs Panagiotopoulos and why even on the basis of that article the estimate of 40 percent chance of survival beyond five years (Professor Tattersall's assessment) would be erroneous. On the basis of Exhibit "15", which is authored by one of the doyens of hepatic surgery (T403.40), Mrs Panagiotopoulos would, leaving aside the extent of her pelvic disease, have had only a one percent prospect of survival beyond five years: T403.40-T404.4. Taking into account the extent of pelvic disease (the ovarian mass), Professor Clarke was of the view that Mrs Panagiotopoulos would not have even fallen into the lowest end of the survival rate predicted by Exhibit "15": T404.1-4.
66 In cross examination Professor Clarke pointed out that only one cell is needed for a tumour to metastasise (T408.51), that the mildly elevated SAP in April indicated that the metastasised cancer in the liver was of such a size as to cause liver function abnormalities (T408.15 and see T416.8-21 ("you can have 10 per cent of your liver and have relatively normal liver function")), "that there were circulating tumour cells that spread to other organs, and that happened relatively early, based on the relative size of the primary versus the liver lesions versus the ovarian lesions.": T408.38. Metastases must have formed early because of the disproportionate size of the ovarian cancer: T408.50. He thought it unlikely that information in April would have demonstrated that the cancer was not so far advanced as to make cure impossible: T414.46. He explained why the pathology results following surgery in October 1996 were a far more reliable guide to the size of the various tumours than CT imaging: T405.51-T406.34.
67 Associate Professor Boyages, during cross examination said (T426.23-55): "A. The disease was so advanced in October - you know, it's a bit like - I always use weeds in a garden to explain this to my patients. But it's like having stage 1, which is your first vegetable patch with weeds full. Wall to wall weeds have gone through the fence, through the bowel wall, into the next garden patch. It had gone into the next door neighbour's patch. It had gone to the house two doors down. It was so bad that when you looked back it was - given the context of the raised SAP - in my opinion that patient had metastatic disease at presentation, not only in the liver but also in the ovary and the peritoneum and the glands.
HIRSCH: Q. Using your example of the weeds in the garden, I'd ask you to accept that the cancer that ultimately was responsible for her death was a weed that travelled to properties over. Do you understand that?
Q. Can you tell us when that weed travelled to the second property?
A. Based on the biology of epithelial cancers - and I do a lot of my research on tumour growth and tumour behaviours - it is likely and almost certainly it would have spread many, many months earlier. In fact these tumours grow - there's very little data on growth rates of bowel cancer, but there is good data in breast cancer and some other tumours which are of the same type, what we call an epithelial type of cancer. But the doubling time of these tumours are generally in the order of 18 to 24 months. So when I say weeks, and say 24 weeks, in the natural history of cancer where this patient presents with kilograms of cancer, it is a very short time."
68 Associate Professor Boyages expressed the view that the disease would have commenced 12 to 24 months prior to October 1996, and said (T427.26-34): "A. Look, when you have a football in your liver, a football on your ovary, a disease that's gone right through the bowel wall, right through the glands, we know that cancer has been - and it's a grade 2 tumour, it's not a highly aggressive one, it's one that grows more slowly - we know that that cancer has been around a long, long time. Yes, it's not a wild guess, it's a reasonable estimate, in my opinion."
and at T429.6-T430.9: "HIRSCH: Q. Was there a chance worth having?
A. I don't think so. I think this particular patient had far advanced metastatic cancer. Yes, there is always a tail end of the curve.
A. There is a very slight chance, but I don't think this patient today would be having this type of surgery.
Q. Sorry, I'll just stop you there, that's not the question. In 1996
KEARNEY: I object, the question was open ended, "Do you think there was a chance?" The professor had proffered an opinion and was explaining.
HIS HONOUR: Q. Will you keep going, professor, with your answer. You said there's a slight chance of this but - "would not have thought in 1996". You put it the way
A. I think - personally I think this case is a no brainer. This patient had extensive disease. Not only were the glands involved, they were totally replaced; not only was it extensive, it had gone into the nerves of the pelvis; not only had it spread to the liver but there was a some 20 centimetre mass in the ovary, in the peritoneum. And in the paper that Prof Tattersall quotes, they say the factors that you should not deliver surgery on because a patient has an extremely poor prognosis are: presence of extrahepatic disease; tick. Involvement of margins; possible. Regional node involvement; definite. Synchronous liver [metastases with the] primary; yes, that patient had that. Greater than 50 per cent of liver involvement; probably. Size of the cancer more than 5 centimetres in the liver. This poor patient had the full house.
HIRSCH: Q. Did she have the full house in April 1996?
A. I believe so, because to get to two doors down, cancer is logical in a lot - in its behaviour a lot of the time.
Q. Can I just stop you there. You say it's, "logical in its behaviour a lot of the time." You said that it was highly unpredictable, didn't you, there is a lot of uncertainty?
A. In a general sense there's always the tail end of the curve, and you might have a patient with metastatic disease that can survive a long time. But at this stage we do not have a magic bullet in cancer, for epithelial cancers, that can say this cancer is going to go away forever.
Q. You may not have a magic bullet but was there a chance at the time at all?
Q. If Mrs Panagiotopoulos was your patient in April 1996, and she presented with a raised SAP of 136, and there was removal of the - I'm sorry. I withdraw that. If she was your patient in April 1996, and bowel cancer had been diagnosed, would you have treated her - a 49 year old woman, otherwise well, would you have treated her with curative intent?
69 I accept the conclusions of Professor Clarke and Associate Professor Boyages that Mrs Panagiotopoulos had no realistic prospect of cure even in April 1996 (or a fortiori in June 1996), in preference to the conclusions of Professor Tattersall, and for the following reasons:
(1) Professor Clarke is an expert in colorectal cancer with extensive experience in dealing with the problem that faced Mrs Panagiotopoulos in 1996 - 50 percent of his patients have metastasised colorectal cancer. Although Professor Tattersall is an eminent cancer physician, he is not a specialist in colorectal cancer. Professor Clarke was an impressive expert and impartial witness, and cross examination, in my view, did not effectively challenge any of his conclusions.
(2) Associate Professor Boyages is very knowledgeable concerning growth rates of cancer and its aetiology. Although his principal area of interest is breast cancer he indicated that colorectal cancer is of a similar type and he was qualified to express the views he did. He was also an impressive and impartial witness. Cross examination, in my view, did not effectively challenge any of his conclusions. He takes the same view as Professor Clarke.
(3) There were a number of weaknesses in Professor Tattersall's approach that I think undermined the position which he took and his credibility as an expert witness:
(a) He stated in his second report that whilst it was possible that spread to the liver had not occurred by April, spread outside the bowel would have likely occurred at that time. He said at T232.25 that he has some doubt that the cancer had extended outside the bowel wall but later agreed it was more likely than not that the cancer extended beyond the bowel wall: T232.49. At T247.38 whilst not agreeing that it was inconceivable that metastases had not been present in the liver as at April, he agreed it was highly improbable that they were not present. His approach seemed to be reliant on the doubts as to the extent of invasion by April, which doubts were effectively undermined, if not removed, by cross examination.
(b) His second report stated "… I think it is more likely than not that there was extension of the cancer outside the bowel wall by April 1996 making surgical cure improbable" in answer to the question "Was there any relevant respect in which Dr Rajendram failed to exercise the ordinary care to be expected in his capacity of a physician, which would have or should have resulted in early diagnosis of the condition for which Mrs Panagiotopoulos was ultimately diagnosed as having and, had such early diagnosis been made, would it have affected the outcome on the balance of probabilities resulting in Mrs Panagiotopoulos either recovering completely or at least surviving into the medium term of say five years?": p 10 Exhibit "B". In cross examination he asserted that this answer was not to be taken as a complete statement of what could be done for Mrs Panagiotopoulos because of the possibility of radiotherapy and chemotherapy. I agree with the defendant's submission that Professor Tattersall was seeking to underplay the significance of that statement in his subsequent evidence, and I think he did attempt to qualify it in a manner that was not convincing: T239-T241.
(c) I agree with the defendant's submission that Professor Tattersall, in quoting from Dr Solomon's letter of 23 October 1996 (written, it was agreed, before the operation on 23 October 1996), edited out an important part of the material in that letter.
(d) I agree that Professor Tattersall's reference to change in the liver metastases after chemotherapy ("the lesions stopped growing") was incomplete and inaccurate because although the larger metastases stopped growing as a result of chemotherapy, other metastases were found that had continued growing: p 105 Exhibit "11".
(4) I found the evidence of Professor Clarke and Associate Professor Boyages as to why reliance by Professor Tattersall on Exhibit "K" was misplaced, very convincing, not only in terms of Exhibit "K" itself but reinforced by reference to Exhibit "15". Professor Tattersall's reference to and reliance on Exhibit "K" as support for his 40 percent prospect of survival assessment was a further matter to be added to (3) above.
(5) The extent of tumour growth in a number of sites as at October and the rates of growth of such cancers, makes clear the link between the mildly elevated SAP in April and the significantly elevated SAP (and GGT) in September and October and the existence of metastases in the liver. As at October 1996, Mrs Panagiotopoulos had a most advanced (Grade D2) cancer involving not only the sigmoid rectum and its wall, but the ovaries, uterus and liver, as well as lymph tissue in the pelvic cavity. The extent of invasion of sites beyond the colon by October leads to the conclusion that the process had started before April and there was no effective challenge in cross examination to that evidence. The mildly elevated SAP only confirms, in my view, that this had occurred, when coupled with the knowledge of what was found in October.
(6) It is true that metastases were not detected in the brain and lungs in October 1996, but there is no evidence that any tests were conducted of those regions at that point, and it is possible that if they had been present they would not yet have been of a size that would have been detected. Symptoms of brain cancer were experienced, it appears, in early 1999 (see Exhibit "11" pp 112-113), and lung cancer in 1998 (see Exhibit "11" p 115) but on the plaintiff's case metastases must have been present in the body by October 1996 (since it is said that colorectal cancer was successfully eradicated in October 1996 and the cerebral metastases were more likely than not to be colorectal in origin: T396.50-T397.2).
(7) Professor Tattersall himself highlighted the fact that lymph vessels drain from the pelvis to the neck: see T237.25.
(8) The prospect of cure in April was wholly dependent on it being established that cancerous cells that had already made their way through the blood stream to the liver and into the lymphatic system, and into the organs and tissues of the pelvic cavity, with the possibility of transcoelomic spread (T419) had not also made their way to Mrs Panagiotopoulos' brain and lungs. It was agreed that rates of growth differ at different sites in the body: see T397-T399, T419 and T427.2-36. No analysis was offered that would indicate why as at June the prospect of metastases made Mrs Panagiotopoulos' condition less curable than at April, both being dates after which the "bag of smarties", using Professor Tattersall's terminology, had broken and the cancer had spread through the bowel wall and into a number of other sites, both local to the carcinoma and not local.
(9) The fact that Dr Solomon and Dr Gallagher operated upon Mrs Panagiotopoulos in October 1996 was, it seemed initially, an important element in the plaintiff's case since it seemed to support the proposition that even then, Mrs Panagiotopoulos had some hope of defeating the cancer. I think however that the evidence of Professor Clarke and Associate Professor Boyages established that such hope for cure as is reflected in Dr Solomon's letter of 23 October (which both parties agree was written before the operation) was based upon limited information. Professor Clarke and Associate Professor Boyages demonstrated that had the true state of Mrs Panagiotopoulos' condition been known it is unlikely that the operation would have been conducted for any other reason than palliative care.
70 It being accepted on the plaintiff's case that on the balance of probabilities Mrs Panagiotopoulos would not have survived cancer for any longer period than she did, had diagnosis been effected in April and the same operation performed in April as was performed in October, the plaintiff's case focused on the assertion that Mrs Panagiotopoulos lost the chance of cure. No evidence was led as to what the likely extended period of life would have been or with what attendant consequences (such as continuing chemotherapy - quality of life) or for that matter the effect upon the plaintiff, but I will put those matters to one side.
71 The defendant raised a threshold point as to the absence of any pleading of a case based on loss of a chance. Although it was asserted that the loss of a chance by Mrs Panagiotopoulos was a step in the process by which the plaintiff could recover, it was submitted by Mr Hirsch that the plaintiff's case was not in fact a loss of a chance case and his recovery did not solely depend on the outcome of that question. I shall consider the question of loss of a chance in two parts - first, in relation to the position of a person in Mrs Panagiotopoulos' situation (bringing a claim before death) and second, in relation to a claim for nervous shock by a relative.
72 There has been a divergence of opinion both in Australia and in other common law jurisdictions as to whether a "loss of a chance" claim is available in negligence and particularly medical negligence cases. In Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, two members of the High Court took opposing positions on the topic (see Gaudron J at 277-281 and Callinan J at 313-314). In the House of Lords in Gregg v Scott [2005] 2 AC 176; [2005] UKHL 2, the view favoured by Gaudron J has held sway, as it has in Canada. Support can be found for Callinan J's approach in the United States, although not universally: see the discussion in Abadee, Walmsley and Zipser, "Professional Liability in Australia", LawBook Co, 2002.
73 The question of loss of a chance has been dealt with in several cases in Australia: Rufo v Hosking (2004) 61 NSWLR 678; [2004] NSWCA 391; Rufo v Hosking [2002] NSWSC 1041; Tran v Lam (unreported, NSWSC, Badgery-Parker J, 20/6/1997, BC9705945); Gavalas v Singh (2001) 3 VR 404; [2001] VSCA 23 and New South Wales v Burton [2006] NSWCA 12.
74 The issue of whether loss of a chance was available in Australia was not directly put in issue in the Court of Appeal in Rufo but all three members of the Court accepted that such a claim was available to a patient in a medical negligence claim: Hodgson JA at [9], Santow JA at [39] and Campbell AJA at [405]. In view of the approach taken in that case and in New South Wales v Burton, I proceed upon the basis that a claim based on loss of a chance is available to a patient. I also proceed upon the basis that the plaintiff is not precluded from advancing the case enunciated by virtue of the absence of any reference in the pleadings to loss of a chance.
75 The patient must prove on the balance of probabilities that there did exist a chance that he or she would have had a better outcome had the negligence in treatment not occurred, and if avoidance of the loss in question would have depended upon the patient taking a particular course of action, the patient must prove on the balance of probabilities that but for the negligence the patient would have taken that course of action: see Rufo v Hosking [2002] NSWSC 1041 at [246], Rufo v Hosking (2004) 61 NSWLR 678; [2004] NSWCA 391 at [9], [40] and [207]. Further, Hodgson JA's comment in Rufo at [10] is of potential relevance: "[10] That chance must be inherent in the circumstances, not merely an artefact of the way evidence is presented in the case. Thus, if it appears to be a plain fact as to whether treatment would or would not have been successful, and the element of uncertainty arises merely from different expert views, then the plaintiff will not be compensated for the chance that one expert might be correct. On the other hand, if it appears that the very best medical science can do is to say that the treatment had a quantifiable chance of success, then in my opinion that can be treated as a valuable chance for the loss of which a plaintiff can be compensated. As with other questions concerning causation, a common sense approach should be taken to the question of whether a valuable chance has been lost, or whether the situation is rather one where one or other alternative would definitely have occurred, and the only uncertainty is due to imperfections in the evidence."
(1) contrary to my finding in relation to April that there was negligence;
(2) in favour of the plaintiff that it is established on the balance of probabilities that his wife would have acted upon advice to repeat the LFT; and
(3) that had the LFT been repeated earlier it would have shown an increase in SAP that would have then led to a recommendation of a liver/spleen ultrasound, which in turn would have uncovered the existence of hepatic metastases in the liver, and then further investigation detecting cancer of the sigmoid rectum (detection of hepatic metastases in the liver would be insufficient to itself make any difference because it would appear that the first step would have been to reduce the size of the metastases by chemotherapy if no other cancer were detected);
it has not been established on the balance of probabilities that Mrs Panagiotopoulos would have had a better outcome had the carcinoma been detected in April or early May 1996.
77 So far as assumption 76 is concerned, I have some doubt as to whether Mrs Panagiotopoulos would have acted upon the advice in April because:
(1) she did not follow Dr Lewis' advice but sought Dr Rajendram's views;
(2) there is no evidence that she did have performed an ultrasound for the pelvis recommended by Dr Rajendram in March 1995 (T343.5);
(3) the trip to Greece was very important to her and her husband; and
(4) her husband was sceptical about the advice of doctors and he is, it would appear, a very strong-willed man.
78 So far as the assumption within 76 is concerned, that the ultrasound of the liver would have detected the metastases in the liver, there was evidence that the ultrasound of the pelvis picked up no metastases in the ovaries and uterus. Against this is Professor Tattersall's view that it would: see p 2 Exhibit "F".
79 All of the above relates to a theoretical claim by Mrs Panagiotopoulos brought before her death. It does not follow however that a third party (to whom I shall refer as a relative) who claims to have suffered nervous shock as a result of the death of the patient has a claim because the negligence of a medical practitioner lost the patient the chance of a better outcome.
80 The loss of a chance to a patient in the context of a relative's claim for nervous shock is even more problematic than a claim by a patient. If it is accepted that a relative has suffered a recognised psychiatric disorder as a result of the death of the patient and the circumstances of that death, then is what the relative has lost by reason of the practitioner's negligence, the loss of the chance that had the patient not died the relative would not have suffered any disorder; or the loss of the chance that had the patient died but not due to any negligence on the part of the medical practitioner, the relative would not have suffered any disorder?
81 These problems of analysis are compounded even further when it is asserted on behalf of the plaintiff here that what has contributed to his disorder is:
(1) the delay in treatment of Mrs Panagiotopoulos, leading to her suffering from rectal and vaginal pain longer than would have been the case had she been treated earlier;
(2) his perception that the treatment of his wife was inadequate; and
(3) his perception that the lack of treatment caused his wife's death, even when there is, it is conceded, a strong probability that she would have died in any event and a conclusion that in fact on the balance of probabilities there was no loss of a chance.
82 A serious and sustained attack on the plaintiff's credibility was mounted by the defendant. It was submitted that the plaintiff was not a witness of credit and was a person upon whom the Court would be unable to rely in regard to numerous facets of the case. Mr Kearney embraced the description in para 35(e)(i)-(v) of the plaintiff's submissions that the plaintiff was: "i. Short-tempered
but did not accept that the Court should find him: "vi. Distraught when describing circumstances
83 Mr Kearney pointed out that the issue of credit was relevant to:
(1) the content and nature of the duty owed to the plaintiff;
(2) the question of whether Mrs Panagiotopoulos would have done certain things in relation to the loss of a chance (if contrary to the defendant's position loss of a chance were open);
(3) whether the plaintiff has a recognisable psychiatric disorder;
(4) if the plaintiff is found to have a recognisable psychiatric disorder, the question of its extent and how has it impacted on his life.
84 I accept the submissions of the defendant in regard to the lack of credibility of the plaintiff. I will detail the main points that have led me to this conclusion.
(1) The plaintiff asserted in a statement the accuracy of a version of events provided to the Health Care Complaints Commission ("HCCC") involving a complaint against Dr Carmalt: Exhibit "18". The plaintiff asserted in the witness box that the document was accurate (T175.45) but was then forced to agree that conversations that he had ascribed in that statement to Dr Lewis were those that he had with Dr Rajendram. In that same document he asserted that his wife had first experienced rectal bleeding after their return from Greece (see para 5), but in his evidence before this Court he asserted that it had first occurred in Greece: T54-T55 and see T60. He had also asserted by his pleadings that rectal bleeding had been reported by his wife to Dr Rajendram in December 1995 and he had told Dr Smith and Dr Brown (expert witnesses in the case) the same thing. As I have noted, it is accepted on behalf of the plaintiff that his wife did not see Dr Rajendram in December 1995 or report rectal bleeding before 11 June 1996 (Dr Rajendram does not accept that even on that date there was any such report). Other assertions are made in the HCCC statement which were not made out by evidence in this case: "5. … [In June 1996 we] saw Dr Rajendram who examined her and prescribed a $70 cream and a couple of Panadol. He said to come back later on.
So far as item 6 is concerned (see T58) Dr Rajendram may have said this (he could not recall but did not deny having said it) at a time after he had received Dr Carmalt's letter in which Dr Carmalt said "I have reassured Angela and her husband that she has no serious pathology in her anal canal to account for her pain".
(a) he had stopped working as a taxi driver after his wife had been diagnosed with cancer (Exhibit "B" pp 19, 20; Exhibit "2" p 86; and see T69, T76);
(b) he had ceased work to care for his wife and daughter (Exhibit "B" pp 19, 20; Exhibit "2" p 86; T76);
(c) he has not re-engaged in work since the death of his wife and does not intend to seek work (Exhibit "B" pp 19, 20, 23; Exhibit "2" pp 86, 92, 106; T70, T76);
(d) he has become increasingly dependent upon his daughters who both care for him and provide him with support (Exhibit "B" pp 19, 22; Exhibit "2" p 86);
(e) he has become depressed to the point of suicidal ideation (Exhibit "B" pp 20, 22);
(f) he has reported becoming socially withdrawn (Exhibit "B" pp 20, 22; Exhibit "2" pp 90, 106);
(g) he has reported increasing use and abuse of alcohol (Exhibit "B" pp 20, 23; Exhibit "2" p 91);
(h) he reported to Dr Smith that he had not formed any significant relationship and to Dr Brown regarding one relationship, and to both that he had no interest in developing further relationships (Exhibit "B" p 20; Exhibit "2" p 106);
(i) he had no prior history of psychiatric illness or assessment for the same (Exhibit "B" p 25; Exhibit "2" pp 86, 88; T142);
(j) that his symptoms have continued unabated, or at least not significantly improved, since March 1999 (Exhibit "B" pp 20, 23).
The plaintiff said under oath that he had told the truth to the doctors (T59) and that with one minor exception Dr Smith and Dr Brown had accurately recorded what he had said: T90-T91. Each of these matters (a) to (j) were contradicted or put in doubt to some degree either as to their existence or duration by admissions made by the plaintiff in his oral testimony, particularly in cross examination. For example, in relation to (a), (b) and (c), the plaintiff admitted that he had continued to work as a taxi driver after his wife's diagnosis of cancer and after her death (T71.12, T71.34, T76.20-T80.58, T85.10-40) and up to three shifts per week in more recent years (T117), and it appears that the plaintiff was not working as a taxi driver prior to his wife's illness: T96.3-T99.26, T102.37-46, T108.7-T109.56. The contradictions are summarised in a table prepared by Mr Kearney as part of his submissions.
(3) Another example relates to the plaintiff's mental history. The plaintiff told Dr Smith and Dr Brown that he had no prior mental health history. The plaintiff had however made a claim for psychological sequelae of an injury to his hand he claimed to have suffered at work in 1994 and for which he was compensated in 1996: see last page of Exhibit "6". According to notes (of Dr Rajendram) the plaintiff was in February 1994 in a depressed mood, taking a markedly diminished interest or pleasure in all or almost all activity, had insomnia or hypersomnia, fatigue or loss of energy, diminished ability to think or concentrate or indecisiveness, feelings of worthlessness or excessive or inappropriate guilt, and recurrent thoughts of death, and therefore met the diagnostic criteria for a major depressive episode: see Exhibit "17". Of course it does not follow that because the plaintiff had reported to Dr Rajendram that he had those symptoms that he did in fact have them, nor does it follow that because he received compensation for claimed depression, that he was in fact suffering from a major depressive episode. It was put in submissions that the plaintiff may well have forgotten that he had those symptoms and that he had been diagnosed with a psychological condition when he saw Dr Smith and Dr Brown. I think it is significant that the plaintiff's explanation for not having mentioned these feelings and the diagnosis contained three elements (see T146-T147): that he had probably decided not to mention it because he did not think it relevant; that he was not or probably not asked the question; and then that he thought the question related only to the period since his wife's death. I am satisfied that both Dr Smith and Dr Brown did ask the plaintiff about whether he had ever had any history of mental illness or been diagnosed as having such, and that they correctly recorded his answer that he had not. Further, the plaintiff had been asked the same question by Mr Kearney (T142.16-T143.38) and he said the same thing: see particularly T142.33-56. He denied having done so at T147.33-45, whereupon he became very heated and agitated.
(4) Another example is (g) - increasing use and abuse of alcohol. At T119.26-T120.58, T121.29-T125.50 and T128.49-T129.45 the cross examination indicated that the claim to any continuing alcohol problem is unfounded. The plaintiff's declaration to the taxi authority is confirmatory of this (see below).
(5) The plaintiff answered a medical questionnaire and obtained re-registration as a taxi driver on the basis of a certificate from his general practitioner Dr Peter Papadakis on 7 February 2005. Dr Papadakis noted normal results in all fields, noted that no Mini Mental State or General Health Questionnaire was required for neuropsychological assessment and implicitly had no doubts about the plaintiff's ability to drive since no driver assessment or referral to a suitable specialist was suggested (see the notes on the reverse side of Exhibit "9" and the contents of Exhibit "10", in which latter document Dr Papadakis certified that the plaintiff "meets the relevant criteria for an unconditional authority and requires no further assessment"). Dr Papadakis gave no report in respect of the plaintiff notwithstanding evidence that he has been the plaintiff's general practitioner since 1999. I infer, in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298, that Dr Papadakis, had he provided a report, would have said nothing that would have assisted the plaintiff's case. In the medical questionnaire completed by the plaintiff, in answer to the question "How often do you have a drink containing alcohol?" the plaintiff answered "monthly". In answer to the question 5.2 "How many drinks containing alcohol do you have on a typical day when you are drinking?" the plaintiff created a new box, ticked it and wrote "None" next to it. In cross examination he agreed that he had not had a drinking problem since five months after his wife's death (T119-T125 and T128.49-T129.45), but he had told Dr Smith that "He has resorted to increasing intake of alcohol. He has consumed several Scotch whiskeys a day with increasing consumption at weekends". Dr Smith noted that the plaintiff had reported that his cigarette consumption had also "incremented". The plaintiff admitted that although he increased his use of cigarettes following his wife's death in March, he reduced it again by August: T130.11-14.
(6) The plaintiff's evidence concerning the visit to Dr Rajendram entailed his wife (but not him) telling a lie to Dr Rajendram. Mr Hirsch posed the question why did Mrs Panagiotopoulos lie to Dr Rajendram, and offered several alternative explanations for the "lie". I do not think that the explanations came to grips with the real possibility that the description of the visit to Dr Rajendram was itself a lie. I think it is highly unlikely that:
(a) Mrs Panagiotopoulos would not tell her husband that she had been to see Dr Lewis that morning about results of tests ordered by Dr Lewis on 2 April;
(b) Mrs Panagiotopoulos would not tell her husband what Dr Lewis had told her;
(c) the plaintiff would suggest to his wife that they both have a check up and that Mrs Panagiotopoulos would then not tell her husband that she had already seen Dr Lewis;
(d) that she would, if (a), (b) and (c) were true, then tell Dr Rajendram what she had not mentioned before to her husband.
It is a version contradicted by Dr Rajendram but even contradicted by one part of the plaintiff's own evidence since it is unlikely that he could state that Mrs Panagiotopoulos had been drinking alcohol the night before the test was performed (see T188.26), if he had no knowledge of the tests.
(7) The plaintiff admitted in cross examination that his wife had seen a Dr Kolyos (T173-T174) although he said this was after she had seen Dr Carmalt. The defendant's lawyers were entitled to be able to pursue enquiries in relation to what advice had been given to Mrs Panagiotopoulos by Dr Kolyos and to see whether Mrs Panagiotopoulos had received any other treatment advice or undergone any other tests that might be relevant to the case, and would have been able to do so had information about Dr Kolyos been made available through an HIC statement (see below).
(8) The plaintiff admitted having lied to the taxi authority for a benefit to himself (T144) (in obtaining his taxi license). If he did lie about his health it is relevant to his credibility. I am not persuaded that he did lie, but if he did not lie to the taxi authority then his assertion that he did lie is relevant to his credibility and to his assertions of disability.
(9) The plaintiff's English was by no means perfect, and I make allowance for that, but the plaintiff had no trouble understanding and responding to questions asked of him. He, however, often evaded questions and gave non-responsive answers and from time to time became agitated and angry. The anger and agitation might be consistent with a person aggrieved by the loss of a partner and believing a medical practitioner to be responsible for her death (see T58.4-6, T65.58-T66.14), but they are also consistent with a person who does not like seeing the edifice of his case being undermined by thorough and able (and in my view fair) cross examination.
(10) It is undisputed that the plaintiff saw no medical expert about his alleged problems until June 1999 ie after his wife's death. There is no evidence that he has seen anyone in relation to his psychological condition, other than for the purposes of this case, since seeing Dr Takas in 2000. He has taken no tablets for depression, nor his alleged insomnia. Explanations were given by him (see T479.45-54) but I think the fact that he has not sought treatment since 1999 is a relevant matter in assessing the genuineness of his assertions.
(11) The plaintiff has failed to produce full details of his earnings and tax arrangements. The only tax returns of the plaintiff that were tendered were Exhibits "7" and "8" (tendered by the defendant) for the years ending 1997 and 1998. They do show a small net earning before tax in 1997 ($5673) and slightly more in 1998 ($8670) (although produced from $29,522 worth of receipts). Tax returns for 1994 and 1995 were provided to the defendant's solicitors (see Exhibit "6") when the plaintiff was on workers compensation for his hand but none were provided for the period after 1998, or before 1995.
(12) The plaintiff failed to produce any documents relating to his workers compensation claim and settlement.
(13) It became apparent that Dr Smith had met with the plaintiff outside court shortly before Dr Smith was cross examined. I do not think it was appropriate for Dr Smith to have discussed matters with the plaintiff particularly since Dr Smith made no notes of his conversation. Nevertheless, according to Dr Smith the plaintiff told him that he drove his taxi "occasionally" and could not "increment" his hours: T318.15, T331.5-11. The plaintiff's evidence of his driving is at T71-T85 and his answers were often very vague: see particularly T79.49-T80.29 and see (16) below - but see also T117, which evidence is inconsistent with driving occasionally. Even in dealing with relatively recent events the plaintiff was vague: see T117.29-56.
(14) The plaintiff claimed that he had never been the subject of any complaint as a taxi driver. Evidence was led that he had been the subject of a complaint in May 1999: see Exhibit "3". The complaint is of a minor kind but what is important is that the plaintiff asserted first that he had never been the subject of complaint and then said he had no recollection of the complaint in question. The complaint demonstrates that he was driving a cab on 28 May 1999, less than three months after his wife's death.
(15) The plaintiff was asked to provide an HIC statement for himself and his wife but he has not done so. The defendant points out that that report might establish why Mrs Panagiotopoulos saw Dr Kolyos and whether or not Mrs Panagiotopoulos did undertake the ultrasound that Dr Rajendram recommended she have in 1995.
(16) Exhibit "6" is a bundle of correspondence between the solicitors for Dr Rajendram (and at that time also Dr Carmalt) and the plaintiff or his solicitors. The defendant's solicitors sought details of the workers compensation payment and received no answer until 4 June 2003 from the plaintiff who was at that time acting for himself. He provided some answers but no documentation and invited the defendants to "direct your questions on the 16th June 2003 in Court" (last document of Exhibit "6"). The 16 June 2003 was the date fixed for trial. The plaintiff has never given discovery of those documents, nor has he ever fully answered question 2 contained in the letter of 12 March 2002 (formerly Q103). Mr Bannister in his reply to 103 on behalf of the plaintiff said (Exhibit "6"): "The Plaintiff was employed on a full-time basis as a Taxi Driver up to 1994. As a result of an injury to his left hand the Plaintiff was unable to work for a period of time and is currently employed on a casual/part-time basis as a Taxi Driver working 1-3 days per week .
The Plaintiff was also in receipt of a Supporting Parent's Benefit until 1999-2000." (my emphasis).
Dr Smith reports (based on what the plaintiff told him) (p 19 Exhibit "3" - a report of 7 November 2005): "In 1973 he commenced driving a taxi and ceased driving in 1995 when his wife became ill. He relinquished work to care for her. He has not re-engaged in work since the death of his wife ." (my emphasis).
That reportage by the plaintiff was untrue, and I infer deliberately so.
85 The defendant's submissions point to Dr Smith's recognition that if the summary put to Dr Smith (by Mr Kearney) of the plaintiff's evidence were a correct summary, it presented an entirely different history to that which he was given and that he would have to re-interview the plaintiff at length and reassess his opinion: T332.49-57. There was conflict in the submissions as to whether Mr Kearney had accurately put the evidence (Mr Hirsch put to Dr Smith that the plaintiff's evidence was that he was driving cabs only two or three times per month (see T337) which was the plaintiff's evidence at one point but the plaintiff had conceded at T117 that it was much more than that, and see Exhibit "6" relevantly quoted at 84 above).
86 Dr Brown, on being given the same "new" information said that she would conclude that the plaintiff was not suffering from "a mild pathological grief reaction and associated depressive symptoms" as she had previously thought (p 94 Exhibit "2") (based on the version of events previously given to her by the plaintiff), but rather that it was more likely that the plaintiff suffered from a normal but distressing grief reaction of a non-pathological type: T466.
87 In my view, it is not just a question of whether the plaintiff has told Dr Smith and Dr Brown one thing which is shown to be untrue, significant as that is, but also whether in the light of established untruth, what he now says is the position can be accepted, whether it relates to what occurred or his feelings, whether expressed in strong language or not. In my view, the credibility of the plaintiff has been successfully impugned and I would not accept his evidence on any issue (other than his great love for his late wife) unless it was verified by an impartial witness.
88 The evidence of the plaintiff's daughters offers some support for the plaintiff's case that he is a changed man from after his wife's death (see T35, T42-43, T44-45) but the eldest daughter, Ms Pamela Cotterell, agreed that she was basing her comments on what she was told by her sister, Ms Nikki Govender (T205.13-34), and said she could not recall as far back as 1994. Ms Athanassia Panagiotopoulos ("Thea") was only nine years old at the time the plaintiff injured his hand and eleven years old when her mother was diagnosed with cancer. Thea gave evidence that the plaintiff has worked a couple of shifts "to get out of the house": T38.19-23. That is a wholly inaccurate description of the plaintiff's taxi driving: see 84 above. Nikki initially said the same thing (at T47.5-12) but shortly after that she said that the plaintiff was working two or three days a week up to 2003 and could pick up a shift if he wanted one: T47.21-34. Nikki's evidence that the plaintiff's smoking had doubled was consistent with the plaintiff's assertions to Dr Smith and Dr Brown, but not consistent with his evidence in cross examination, nor did the generalisations about changes in the plaintiff's mood prior to and after the death of Mrs Panagiotopoulos touch upon the episode of depression and related issues prior to 1996. Some of the evidence of Thea and Nikki pointed to a greater degree of socialising and normalcy in the domestic situation than the plaintiff had described in his reporting to medical experts: eg T39-40 and T49-50. None of the daughters focused on the period between 1996 until the death of Mrs Panagiotopoulos in March 1999, although Pamela described the plaintiff as becoming very bitter once his wife became sick (T203.28-47). Nikki referred to the importance to the plaintiff of this litigation: T45.45-49; T46.5-25. In my view, the evidence of the daughters does not provide any real antidote to the lack of credibility of the plaintiff demonstrated by the matters to which I have referred.
89 The defendant argued that I should reject Dr Smith's report because it expressed itself to be founded, inter alia, on Dr Takas' reports of 28 June 1999 and 29 May 2000 (pp 18 and 21 Exhibit "B") and Dr Takas' reports had been withdrawn (T304-5) (due to the unavailability of Dr Takas for cross examination). Dr Smith in cross examination agreed that he had had "particular regard to the report of Dr Takas" and that the later report formed an "important part" of his opinion because it provided some evidence as an assessment of the position of the plaintiff shortly after the death of his wife and a basis for a longitudinal assessment in relation to the plaintiff's condition: T321.16-57.
90 Whilst I think there is force in the defendant's submissions based on the reference to Dr Takas' reports, I would be inclined not to treat the report as wholly inadmissible on that account. Important as the removal of that part of the foundation of the report is, there are even more fundamental problems with Dr Smith's report stemming principally from the nature of the information provided by the plaintiff to Dr Smith. I have detailed these matters above, but all these matters cumulatively rendered Dr Smith's report of no value.
91 In addition to the incorrect information provided to Dr Smith and the absence of the reports of Dr Takas, there was a further problem which was the concentration in the report on the impact on the plaintiff and his behaviour in the period after Mrs Panagiotopoulos' death (see p 20 Exhibit "B"), rather than on what occurred after diagnosis of her illness and before her death. If the plaintiff's case were solely based on the death of his wife and its impact upon him that would not present a difficulty, but the case for the plaintiff is that the circumstances of his wife's death including the additional suffering of Mrs Panagiotopoulos between April and September contributed to his psychological condition. In a context where it is agreed by everyone that the plaintiff's loss of his wife after so many years of marriage would have a significant impact on his emotional wellbeing, delineating an "abnormal" grief reaction amounting to a psychiatric condition as a consequence, at least in part, not of her death but of the absence of the limited possibility of cure, and the extension of pain for five months before diagnosis, is of particular importance. I should note that the evidence of the plaintiff's daughters in relation to the plaintiff's general state seemed directed exclusively to what occurred after Mrs Panagiotopoulos' death, in comparison to his general state before her death: see T35, T42, T44-T45, T203-T204. I note that Dr Smith expressed a view in his oral evidence that had Mrs Panagiotopoulos died "of natural causes in her sleep" the plaintiff would probably not have suffered any psychiatric disorder. That is not the comparison that would need to be made, but in any event, the assessment is based to a significant extent on what the plaintiff has told Dr Smith and hence dependent on the acceptance of the plaintiff as an honest historian: see T321 and T324. There is the further problem that there is no evidence that he did return to work before diagnosis of his wife's illness in October 1996 (from 1994) and therefore nothing to indicate that his level of earning in the years that followed was affected by reason of any condition (if he in fact suffered from one) not attributable to the injury to his hand and its sequelae. Although I mention these matters I do not think it is necessary to attempt any unravelling of these issues because for the reasons I have endeavoured to articulate I did not find the plaintiff to be a credible witness.
92 Although I have concluded that no act or omission of Dr Rajendram (negligent or not) led to the loss of a chance of recovery by Mrs Panagiotopoulos from the cancerous tumours which afflicted her by April and a fortiori by June 1996, the plaintiff's case was not linked solely to the outcome of that issue. I have identified the other matters in 5 and (3).
93 Reference was made in the plaintiff's submissions to Shorey v PT Ltd (2003) 197 ALR 410; [2003] HCA 27; Rowe v McCartney [1976] 2 NSWLR 72; Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501; and Gavalas v Singh (2001) 3 VR 404; [2001] VSCA 23.
94 Mr Hirsch drew attention to Shorey in two contexts. First, he referred to the judgment of Kirby J in that case that a negligent defendant must take its victim as it finds her and must pay damages accordingly (Shorey at [44], citing Watts v Rake (1960) 108 CLR 158 at 160) and the "presumptio hominis" was explained thus (at [46]): "If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred."
(and see Rufo in the Court of Appeal for a recent example of this).
95 Second, Mr Hirsch referred to the passages at [34] and [41] in which Kirby J remarked that the statement that the law looks for a single cause is incorrect: "It is enough that the claimant shows that the event is 'a' cause of the condition for which damages are claimed."
96 So far as the first point is concerned, as Kirby J himself remarked at [43], the plaintiff must prove his case, and has the burden of establishing that his disorder was caused by the defendant's negligence. The plaintiff here must show that he has a recognisable psychiatric injury or illness and that on the balance of probabilities that arises because of a breach of duty owed to him by the defendant: see Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35.
97 Leaving to one side the question of what is required to be established in a loss of chance case and assuming in the plaintiff's favour that there was a duty of care owed to him that was breached and that the breach was causative of loss of a chance and/or causative of discomfort to Mrs Panagiotopoulos, the plaintiff has in my view failed to establish that he suffers from, or has suffered from, a recognisable psychiatric injury or illness as a result of any action or inaction on the part of Dr Rajendram, nor has he established that any condition of which he complains arises from the failure to diagnose his wife's cancer earlier as opposed to his grief over the loss of his wife, his perception that the defendant had been responsible for his wife's death and the impact of this litigation upon his life, as described by his daughter Nikki.
98 Mr Hirsch made reference to a passage in Gavalas in which Smith AJA in the Court of Appeal said at [38]: "It may also be said to be unjust and contrary to the underlying policy objectives for a plaintiff to be denied compensation because critical evidence is unavailable as a result of the negligence of the defendant. The present case is such a case. It was the negligence of the defendant that prevented the parties knowing what the size of the tumour was as at 25 October 1990."
and argued that the absence of further LFTs in April and June was an impediment to the plaintiff's case.
99 Smith AJA's comment was made in the context of an argument that would support a claim for loss of a chance. I do not think that Smith AJA could be taken as laying down a principle that a cause of action based on loss of a chance is or ought be available for the failure to conduct a test where other evidence is available which establishes that on the balance of probabilities there was no loss of a chance. If his Honour is to be taken as expressing such a view, it is not consistent with the views expressed by the NSW Court of Appeal in Rufo.
100 Although there was a strand in the cross examination of Professor Clarke and Associate Professor Boyages and in the submissions that had the test been repeated in April or June or had other tests been conducted then there would be more information about the SAP and/or condition of Mrs Panagiotopoulos as at April and June 1996, this does not on its own, in my view, lead anywhere. Professor Clarke and Associate Professor Boyages were able to express firm views about the prognosis for Mrs Panagiotopoulos without information as to her SAP level in April or in June, and without other imaging results. This was not a case in which they were not able to express views as to outcome without information which ought to have been obtained at the time.
101 There is a further point here. The plaintiff's argument entails the proposition that even if a patient personally would have no remedy against the doctor (because any established negligence was not causative of death or loss of a chance), a relative who suffers a recognised psychiatric condition as a result of the belief that the negligence was causative of the illness or the loss of a chance of cure, can recover. Such an outcome seems to me to be sufficiently surprising as to point to it being wrong in law. Whether the argument is erroneous and whether if it is, the error arises because loss of a chance cannot extend to third parties (no case was cited that establishes that it can) or because a claim for nervous shock cannot extend to perceptions that are wrong (see the dicta of Gummow and Hayne JJ in Tame at [198]), or because the reaction of a relative based on wrong perceptions is not something for which a medical practitioner should be held to account, do not need to be explored further given my conclusion on the failure of the plaintiff to establish any recognised psychiatric disorder.
(1) Dr Rajendram did not breach any duty of care owed to Mrs Panagiotopoulos (or the plaintiff) on 11 April 1996.
(2) Dr Rajendram did breach his duty of care to Mrs Panagiotopoulos on 11 June 1996 by failing to forward the LFT results to Dr Carmalt and by failing to arrange another LFT for Mrs Panagiotopoulos.
(3) The cancer as found in October 1996 was of the worst grade (D2) with widespread metastases in other organs and tissue, had spread through the blood and lymph glands with the possibility of transcoelomic spread as well. The size and extent of the cancer at various sites and the fact that it involved multiple sites beyond the primary site (ie the colon), coupled with the mildly elevated SAP levels in April 1996 and the likely rate of growth of the cancerous cells to produce cancer as widespread and of the size found (particularly in the uterus) leads me to conclude based on the evidence of Professor Clarke and Associate Professor Boyages that had the carcinoma of the colon and the metastases of the liver been detected in April or early May, Mrs Panagiotopoulos would then have had no realistic prospect of cure. A fortiori the same is true had the carcinoma of the colon and metastases of the liver been diagnosed in June or early July 1996.
(4) The causative connection between Dr Rajendram's failure in June to forward the April LFT results (and further results had they been obtained) to Dr Carmalt on the one hand, and the failure to detect cancer of the sigmoid rectum on the other, is not established on the balance of probabilities.
(5) I am not satisfied that the plaintiff suffers from any recognisable psychiatric injury or illness at all or as a result of his wife's death and/or the circumstances surrounding her death, including the medical treatment afforded to her.
103 There will therefore be a verdict and judgment for the defendant.
104 I shall give the parties an opportunity to be heard on the issue of costs.
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Panagiotopoulos
Rajendram
[2001] VSCA 23
[1999] HCA 22
(2001) 3 VR 404
(1959) 101 CLR 298
(1985) 2 NSWLR 501
(1999) 197 CLR 269
(2004) 61 NSWLR 678
(2003) 197 ALR 410
(2002) 211 CLR 317
(1960) 108 CLR 158