Stamoulis v Sydney South West Area Health Service [2010] NSWSC 585 | Case summary

JUDGMENT 1 HIS HONOUR: Before the Court is a retrial of the issue of negligence in respect of an action brought against the defendant in the following circumstances. In a sense the issue lies in a relatively narrow compass and in the light of the history which I am about to recount, it can be dealt with avoiding a great deal of repetition of matters previously litigated and determined. 2 By Statement of Claim filed on 19 June 2008 Christine Ann O'Gorman sought damages from the defendant (and another, now no longer relevant) consequent upon injuries and losses allegedly caused by the negligence of radiologists, Dr Van Rooijen and Dr Varnava who reported on mammogram screening for which she had attended. The screening was operated under the title BreastScreen NSW. The vicarious liability of the defendant for any negligent conduct of the radiologists in carrying out of the screening is not in dispute. 3 The reading by them of mammograms undertaken at a BreastScreen clinic in Camperdown on 23 February 2006 (the 2006 mammograms) lay at the foundation of the claim. On 7 March 2006 BreastScreen wrote to Mrs O'Gorman and her general practitioner in similar terms advising that "the doctors who looked at your screening mammograms (breast x-rays) (opined) that there was no visible evidence of breast cancer". The letter also conveyed some cautionary advice. 4 On 1 January 2007, whilst on holiday, Mrs O'Gorman noticed a hard lump in her left breast. On return to Sydney she consulted her general practitioner but was not able to obtain an appointment for new mammograms and for an ultrasound until 17 January 2007. These investigations resulted in a diagnosis of the existence of a cancer in the left breast. For present purposes it is not necessary for me to detail every aspect of the progress of the cancer nor the sufferings which Mrs O'Gorman undoubtedly underwent as it progressed and she was subjected to the effects of attempts to treat it. 5 The hearing of the claim was expedited and heard by Hoeben J between 7 and 16 October 2008. His Honour delivered judgment in favour of Mrs O'Gorman for damages assessed at $405,990.15 on 29 October 2008: [2008] NSWSC 1127. It was agreed by the parties that, for the purpose of this retrial, his Honour's judgment at pars 1-55, 103-111 and 121-178 canvassed matters which were not in dispute. As I indicated during counsel's addresses I will gratefully adopt that content of the judgment and it should be treated as incorporated herein. 6 The defendant appealed against that judgment. Before it was heard the carcinoma metastasized into Mrs O'Gorman's lungs and brain and she died. The plaintiff (her daughter) is the legal representative of her estate. The appeal was heard on 4 and 24 June 2009 (Beazley, Giles and Ipp JJA) and judgment delivered on 24 July 2009: [2009] NSWCA 153. 7 The judgments of the members constituting the Court of Appeal are on public record and to be given authority in their entirety but, in summary, all arguments advanced by the defendant (then the appellant) failed, save one, namely that Hoeben J should not have disallowed expert evidence from Dr Van Rooijen and Varnava even though it was their casual acts of negligence which constituted the plaintiff's case. 8 Consequently, the Court of Appeal did not order retrial of all issues but limited their order in terms that "the matter is remitted to the Common Law Division of the Supreme Court for a retrial on the issue of negligence". 9 It was noted that no challenge was made to the formulation of the defendant's duty of care which had been expressed by Hoeben J who, recognizing the contrast between screening and diagnostic mammography, said that the duty was: "to provide that level of care and skill in the interpretation of mammograms to be expected from a reasonably competent radiologist in the context of a mammogram screening programme". 10 It is important also to note that there was explicit dismissal of the appeal against the decision as to causation (see per Ipp JA at par 155) and, obviously having regard to the terms of the remitter (and the dismissal of a cross appeal as to damages) that Hoeben J's assessment of damages stands. 11 The limited extent of the remitter and the circumstances of this case enable a compact articulation of the outstanding issue namely whether it is established on behalf of the plaintiff that there were suspicious features in the 2006 mammogram which sufficiently raised the possibility of malignancy to have required the two radiologists to recall Mrs O'Gorman for further investigation (cf per Ipp JA at par 67). 12 As was the case in the earlier trial, the plaintiff relied on expert evidence from Dr Peter Kitchener and the defendant relied on the evidence of Associate Professor Jonathan Osborne. Professor Osborne is the State Radiologist for BreastScreen Queensland. In addition, as determined in the appeal, Dr Van Rooijen and Dr Varnava were not inhibited from expressing expert opinion. As might be anticipated (and was expected by Hoeben J) their evidence supported the defendant's case. 13 As I shall indicate and explain my reasons in due course, where there is relevant conflict, I prefer the opinion of Dr Kitchener. It is important of course to bear in mind, as I do, that the onus of proof rests and remains upon the plaintiff. I say this because the argument as presented by the parties has centred upon whether or not, for reasons other than isolated interpretation of the 2006 mammogram, there was breach of duty of care in not recalling Mrs O'Gorman. 14 This came about because all expert radiologists agreed, and I accept, that if the 2006 mammogram was looked at in isolation, Mrs O'Gorman should have been recalled for further examination and investigation. That mammogram showed a critical mass in the left breast, the nature of which was not revealed by it. 15 There was no recall and it is convenient first to examine the testimony of the radiologists who viewed the films in 2006. Neither of them, understandably, claims any recollection of the particular viewing. In a statement made on 2 October 2008 (before the earlier trial) Dr Van Rooijen said that, in February 2006, she commonly worked one half day per fortnight (average three hours) reading mammograms for BreastScreen NSW. The films were placed by a clerk on a viewer which had the capacity to hold about one hundred sets of clients' mammograms at the one time. 16 BreastScreen's files had records of mammograms in respect of attendances by Mrs O'Gorman in 1994, 1996, 1998, 2002, 2004 and those being taken and viewed in 2006. Dr Van Rooijen said that the practice was (having regard to availability) to place the films of four years earlier than those currently being studied (in this case 2002) beside them as a comparator. She agreed that the mass was to be seen on the relevant films for both years and that it was "bigger" in 2006. That observation would have signified a need to look further. 17 She said that it would have been her practice to have "pulled out" Mrs O'Gorman's file to look at earlier mammograms starting from the earliest which would have been 1994. I can only conclude that she may have done so. In the statement earlier mentioned Dr Van Rooijen said that she did not, as a matter of practice, review every client's file when reading their mammograms. She has made a report on 14 December 2009 (after the appeal) which reveals that she now has looked at all the available mammograms. 18 In short, Dr Van Rooijen testified that what she has now seen revealed no changes that she would regard as of significance and therefore would have come to the same conclusion if she had done so in 2006. I will in due course come to the issue of change and the significance that ought to have been attracted but I do not find it necessary to repeat the detail when dealing with individual witnesses. 19 I did not find Dr Van Rooijen a persuasive witness. It would be appropriate to make allowance, as I have, for her obvious unfamiliarity with trial proceedings. However, there were frequent long pauses before she answered direct questions and it was apparent that she was seeking to formulate her answers (sometimes irrespective of the question) to reinforce her position of denial of negligence. Overall, she presented as argumentative rather than informative. Frequently she propounded "her case" before questions had been completed. A specific example of this is transcribed at T51. 20 I would not, simply because it is Dr Van Rooijen's conduct which is in issue, regard her evidence as inherently unreliable but the impression which I formed, and the conclusion which I have reached, is that her evidence was not objective and to the extent that it differs, in particular from the evidence of Dr Kitchener, I am not prepared to rely upon it. 21 The other examining radiologist was Dr Varnava. His presentation was markedly different from that of Dr Van Rooijen. In order to relate what witnesses were saying as to what could be seen on the films, they stood near a light box which illuminated the mammograms. This was appropriately practical but Dr Varnava's evidence in chief very much was delivered as a prepared polemic against any suggestion that Mrs O'Gorman should have been recalled for investigation. 22 Like Dr Van Rooijen Dr Varnava made a statement prior to the earlier trial (1 October 2008) and, since the appeal has reported (10 December 2009) concerning his views upon mammograms which it is now certain that he has seen since 2006. 23 Counsel for the plaintiff made express submissions concerning the acceptability of Dr Varnava's evidence. In his statement of 1 October 2008 Dr Varnava, in reference to the 2006 mammograms, observed "some of the films appear magnified on CC (cranio-cordal) view, which appears the least magnified, the lesion is just three centimetres". I shall later turn to the question of measurement, however, when asked about this Dr Varnava said "I would like to withdraw it. I have no proof that that's actually the case". Further cross examination led to his concession that what he had earlier said was "simply wrong" which is some distance from the implication in his expression "I have no proof" which leaves open the proposition that it yet might be the case. I consider that his initial words were carefully chosen because the raising of this matter would have come as no surprise to Dr Varnava. In an email on 21 March 2010 to the defendant's solicitor, tendered by the defendant (Exhibit 10), in reference to this he wrote "Dr K (Kitchener) is right and I can't be definite about the size of the markers so we probably need to concede that point". 24 The second matter to which counsel directed attention was inconsistency perceptible between a comment in the email and the evidence which Dr Varnava gave. In the former he was commenting on observations in a report by Dr Kitchener concerning what was described an indistinct margin. He then wrote "as above, the obscured margins on mammography are superior (on the MLO views) and medial on the CC view. Only a CC view is available of the tumour in 2007 and this shows the tumour is MEDIAL to the rounded structures". What Dr Kitchener had said was "the indistinct margin is posterior and superior and with the band extremely medially is in keeping with the position of the tumour as shown in the ultrasound of 2007". 25 In evidence (T83) Dr Varnava said: "Q Far from a complete view of the areas where the cancer later appeared, is that not correct? A. No. The cancer actually appeared along the medial margin on the CC view, which I believe you can see fairly well, and it looks quire sharp. I'm sorry, would be possible to look at the 2007 and put the two up against each other? Q. I have no objection to you doing that. A. Okay. These are the two CC images. There is - the round structure's here (indicated), and the cancer is coming out medially, coming out, there is a mass that looks like a cancer that abuts the medial aspect of this round structure…" 26 It was contended that there was detectable inconsistency between Dr Varnava's comments on the different occasions and, it was observed, on one aspect it coordinates with Dr Kitchener's opinion that the tumour was where the obscurities were said to exist on the 2006 mammogram. 27 The impetus of Dr Varnava's evidence was essentially a campaign to justify the decision not to recall Mrs O'Gorman. Having no recollection of what he in fact did in 2006, about which no criticism can be made, he offered a reconstruction of events calculated to portray an absence of relevant breach of duty. Again for present purposes I perceive no benefit in my recapitulation of the detail of his reconstruction but his stance, affirmed by the matters raised by counsel abovementioned did not impress as objective and I do not place weight upon his testimony. 28 I turn then to the opinions of Professor Osborne and Dr Kitchener. I regard them as independent and, although I would assume that BreastScreen NSW and BreastScreen QLD are sister organizations, I would not consider Professor Osborne's position with the latter as a reason for treating his evidence as biased. 29 I observe that in the appeal a submission was made by the defendant concerning the relative expertise of Dr Kitchener and Professor Osborne. As was the case in each trial, I have the curricula vitae of both and I see no reason to treat either as having superior expertise to the other. I note that a similar submission was not made in this hearing and I have of course read the relevant references in the judgment of Ipp JA (pars 83-90). 30 Emphasizing, as I have already mentioned, that the defendant does not bear the onus, it is expedient to consider what was put forward in written and oral submissions, as "the defendant's case". I have already declined to depend upon the evidence of the radiologists whose casual acts or omissions are the focus of the case by reason of my perception of their lack of objectivity. It was submitted however that Professor Osborne, took exactly the same position for the same reasons as the screening radiologists. It was put that "the screening radiologists and the defendant's expert readily conceded that the mass viewed alone (on the 2006 mammograms) warranted recall. Importantly there were no positive signs of malignancy such as spiculation, microlobulation or suspicious microcalcification". Why then was the presence of the mass if viewed in isolation a warrant for recall? It was of significant size and its nature was undetermined. The defendant argues that the films taken between 1994 and 2006 used as comparators show waxing and waning of the mass which is a feature of benign cyst and not of carcinoma. Other cysts were seen from time to time to come and go. The nature of cancer involves the multiplication of cells, and if the mass was such, it would not wane. 31 Professor Osborne pointed to the appearance and disappearance of the other masses over the span of time. This was indicative of the behaviour of cysts and not of tumour. It would be, I consider, an unjustified assumption that because other observed masses had over time disappeared and were therefore benign, one that did not disappear was likely to be of the same character. In so saying I do not overlook that it is not alleged, nor is it the case, that the earlier displayed critical mass itself was cancerous but the issue is whether the circumstances ought to have provoked recall and, consequently, investigation. 32 In her later report, as requested, Dr Van Rooijen measured (calculated) "the sole mass shown in the 2006 mammogram" (which I have referred to elsewhere as the critical mass) and the masses (if observable) in the same position on the earlier mammograms. Her results were offered as 1994 - 3.5 centimetres; 1996 - 3 centimetres; 1998 - 2.7 centimetres; 2002 - 2.7 centimetres; 2004 - 2.5 centimetres and 2006 - 3 centimetres. 33 There is debate as the accuracy of these calculations. It is not necessary for me to resolve it but it suffices to note what has been said about applying the formula for the volume of a sphere on the one hand, and the compression of the body part when the film is being exposed on the other. For present purposes I will use the calculations presented by the defendant through Dr Van Rooijen. 34 I do not accept that those figures can accurately be described as showing "waxing and waning". Although the measurement was static on the readings in 1998 and 2002, until the mammogram in 2006 the only quality demonstrated was waning and there had been no waxing at all. 35 Some criticism was advanced against Dr Kitchener's observation that a radiologist viewer in 2006 ought to have become aware that, in paraphrase, "something was going on". The plaintiff's case is not established simply by showing that something or other was happening. However, that there was something happening in relation to the particular mass which was not recognized should have operated, at least, as an alert to screening radiologists. 36 Counsel for the defendant submitted that the issue of size is there to be determined. Ipp JA described what Hoeben J had found in this regard and Giles JA (par 20) expressly stated that he agreed "that the challenges to the trial judge's factual findings concerning the size of the mass should not succeed". 37 It was unequivocally put by counsel for the plaintiff in final submission that it was her case that the mass had increased substantially between 2004 and 2006 in particular, that it had to be considered by any radiologist whether the area of the mass was not being increased by non-cystic structures. 38 Whilst I accept that in the screening process, measurements are not made, and increases or decreases in size are based upon perceptions of the viewer, on the measurements propounded by the defendant above set out, the increase from 2004 to 2006 can be assessed as in the order of 20 percent. In the context, I would regard as substantial. 39 It is now known from the 2007 mammogram and the ultrasound that the sinister growth was adjacent to another which was not so sinister. I accept that the cancer ultimately detected was a type classified as being of rapid onset and that it commenced sometime in the order of two years before detection in January 2007. 40 I find that it is probable that the mass viewed on the 2006 mammogram was, although giving the appearance of single mass, composed of cystic and non-cystic structures. 41 I turn then to whether the plaintiff has discharged the onus of proof. I have stated that I prefer the evidence of Dr Kitchener. Essentially the refrain advanced by the defendant was made up of excuses for each failure to react to indicators that what was unknown might possibly be, albeit masked, evidence of sinister implication. Dealing with what was available in 2006, Dr Kitchener's reasons in summary were that, given the indicators provided by the loss of the other cysts, the appearances and disappearances over the years above referenced, that the margins of the mass were indistinct and the increase in size after (on the defendant's measurements), a decline without rise until the last mammogram in 2006, it should have been appreciated that there was a real possibility that what was being viewed was not solely a cyst but possibly a cyst with other material. As earlier observed, other cysts were seen to come and go or wax and wane. This one did not, it was seen only once to wax, and then substantially, but only after waning for many years. 42 There was debate about whether what was being observed was properly described as "obscured" rather than "indistinct". I have accepted Dr Kitchener's view but, in any event, if a screening radiologist became aware that something was obscured I consider that should trigger enquiry as to what was being obscured. It would not discharge the duty of care to assume that what was obscured would be likely to be benign because other structures which had appeared over the years had turned out to be benign. 43 A major factor in my preference for Dr Kitchener's opinions is his approach in using the cumulating observations in forming them. Professor Osborne (somewhat in harmony with the presentation of the defendant's case by counsel) focussed on individual observations and appeared reluctant to canvass what should have been the response to them in cumulation. 44 I am satisfied that in the whole of the circumstances, radiologists providing the level of skill in the interpretation of mammograms to be exercised in the context of a breast screening programme ought to have recalled Mrs O'Gorman for further examination in 2006. 45 It is contended by the defendant that Dr Kitchener's opinions lack cogency because, as more information was supplied to him, he found more and different reasons to support them. 46 I do not accept this contention. On the contrary, I consider it is reasonable that Dr Kitchener would respond and supplement his opinion when given access to further information. It is instructive to observe the sequence of his reports. 47 His first report is dated 2 October 2007 (prior to litigation) and, as stated therein, responded to a request from Mrs O'Gorman's solicitors to review the mammogram. He had only the 2006 mammogram. I would not infer that at that time the plaintiff's solicitors (or Dr Kitchener) had access to the defendant's files concerning Mrs O'Gorman. 48 On the basis of that limited material, Dr Kitchener opined that Mrs O'Gorman should have been recalled. Every expert, including the screening radiologists agree that, if that was all that was available, Dr Kitchener's view is correct. 49 The next report is dated 16 May 2008 and, obviously, there had now been made available to him the mammograms taken in 2004. It is apparent that by the time of the next report (22 September 2008) the mammograms of 1998 and 2002 were also available as well as reports (4 and 10 September 2008) by Professor Osborne and Dr Kitchener's final report is dated 12 February 2010 (after the appeal). I find nothing in the progressive observations by Dr Kitchener which undermines his credibility or the persuasiveness of his opinion. 50 Cross examination was directed to Dr Kitchener concerning various of his observations in isolation. That cross examination did not come to grips with what was the plaintiff's case, namely that it was the combination of observable matters giving rise to suspicion which should have led to the conclusion that recall was required. 51 Having regard to the above matters, I hold that the remitted issue of negligence should be found in favour of the plaintiff. As reference was made to it I should state that I find nothing in the Civil Liability Act which would operate to deprive the plaintiff of judgment. 52 As the issue of damages was not remitted, it would take effect from its entry on 29 October 2008. 53 I order the entry of judgment for the plaintiff in the action in the sum of $405,990.15 to take effect from 29 October 2008. 54 The defendant is to pay the plaintiff's costs of the action including the costs of the trial before Hoeben J which were ordered by the Court of Appeal to be costs in the cause. **********

Stamoulis v Sydney South West Area Health Service

At a glance

Court

Decision date

Before

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Judgment (9 paragraphs)

Parties

Cases Cited (2)