In my view the failure of Dr Tai to follow up Mrs Hatzistavrou in regard to her non-appearance on his operating schedule in December 1992 or January 1993 was negligent. The direct consequence of that was that the plaintiff did not see Dr Tai again until August 1993 when in addition to the radical hysterectomy she also had to undergo a colostomy with all its consequences. I find that it was probable that had the D&C been carried out in early 1993 it would have been likely to detect the presence of the ovarian cancer at a stage not requiring a colostomy. "
The defendant's argument in the appeal .
51 For the defendant it was submitted that the appeal raised two main issues. The first was said to be of considerable importance in the practice of medicine. The issue was said to be the extent to which a doctor or a specialist doctor had
"a duty to follow up to ensure a patient underwent an operative procedure when the doctor had given the patient the wherewithal to carry out and have that procedure arranged himself/herself".
52 The second issue raised was whether there had been evidence upon which the trial judge could properly find that if the D & C procedure had been carried out in February or March of 1993 the cancer which was discovered in August 1993 would have reached the stage where it would have been discovered. For the defendant it was submitted that the evidence did not support this finding.
The duty issue .
53 For the defendant it was submitted, before coming to the question of duty by reference to the particular facts of the present case, that there was error in the judge's approach to the case indicated by his reference to and apparent reliance on an unreported decision of this court, Kalokarinos v Burnett (Mahoney P and Clarke and Powell JJA, 30 January 1996) and by his reference to an analogy to the position of a solicitor who did not advise a client appropriately about the imminence of the expiration of a limitation period. I do not think that the trial judge's references to these two matters either indicated or led to any error in his subsequent reasoning about the extent of the defendant's duty on the facts of the present case.
54 I agree with the defendant's submission to the extent that I think Kalokarinos is not of much help, as an authority, in the present case. There are some differences in the facts, and it was not a considered decision of the court on the question of the duty of a medical practitioner to follow up a recommendation for surgery. An issue at the trial in Kalokarinos was whether the plaintiff's account of what happened at a consultation with her doctor should be accepted. The only point raised on the appeal was whether the trial judge was right in accepting the plaintiff's account. This court made it perfectly clear that all it was considering was the attack in the appeal on the trial judge's finding of fact. That attack failed and the appeal was dismissed.
55 There were however some features in the case relevant to the present. The defendant doctor conceded that if he had behaved as the plaintiff claimed he would have been in breach of duty. The case at least shows there is some medical opinion supporting a wider view of the content of a doctor's duty to a patient than that contended for by the defendant in the present case. I do not think the trial judge in the present case treated Kalokarinos as in any way decisive or as binding him to reach the result that he did. He seems to me to have taken it as indicative but not conclusive, either in a factual or a legal sense.
56 Although it is not strictly relevant in the present case, because in the appeal no question is raised about contributory negligence, it also seems to me to be of some relevance to the general question raised by the defendant that the court in Kalokarinos overturned the judge's finding that there had been no contributory negligence by the plaintiff and reduced the damages by twenty per cent. As this finding was the foundation of the court's judgment about contributory negligence, the case is authority for the proposition that in some factual situations at least there will be what might be called "shared responsibility" of doctor and patient in cases of the present kind.
57 The solicitor analogy which the trial judge mentioned as possibly available, was that if a solicitor advises a client to commence proceedings which might soon exceed a time limitation but then does nothing to ensure that the client is made fully aware of the consequences if the client does nothing within the limitation period, the solicitor would be negligent. I do not think the facts and circumstances are sufficiently similar for the analogy to be of any real help. Nor however do I think the trial judge made use of the analogy in his reasoning. He was simply saying, as I understand him, that the analogy he mentioned was closer to the situation he was dealing with than was the competing analogy to which counsel for the defendant had referred before him.
58 What the trial judge did was to concern himself directly with the duty which, in his view, arose from the facts as he had found them.
59 In criticising the judge's conclusion about the defendant's duty, the submissions for the defendant emphasised the plaintiff's part in not following up the appointment the defendant had told her to make. This tended to concentrate attention on the plaintiff's fault in the matter. When, however, the question raised by the plaintiff's case is recognised as being whether the defendant was at fault, it seems to me that the way in which the matter was put by the trial judge was persuasive. However, apart from Kalokarinos, which was not a case directly deciding the question of a doctor's duty in circumstances analogous to the present, the trial judge referred to no court decisions relating to the duty. In view of the importance which the submissions for the defendant were stressing of the duty and the content of the duty to the practice of medicine generally, it seemed to me prudent to find out whether there had been other judicial decisions relevant to the question. Although counsel had told the court they had been unable to discover any reported decisions of relevance, other than Kalokarinos, the court requested further assistance from counsel on the matter of authorities and some were eventually made available to the court by written submission after the close of the oral argument.
60 Before mentioning the cases and the literature however, it is convenient to note the two main propositions on which the defendant's submissions relied in regard to the duty issue. The first was based on what was said to be the policy underlying Rogers v Whitaker (1992) 175 CLR 479 and the second what was said to be the practical unreasonableness of the duty alleged against the defendant.
61 The first submission was that the imposition of the duty, or, more accurately, the identification of the content of the duty by the trial judge in the present case was inconsistent with the autonomy of the adult patient upon which the decision in Rogers v Whitaker was based. This court's decision in O'Brien v Wheeler (23 May 1997, unreported, Mason P and Powell and Stein JJA) was referred to and the statement there by Mason P, with whom Powell JA had agreed, that the approach in Rogers v Whitaker
"... reflects the autonomy of the adult patient, who is regarded as having the right (if properly informed) to decide for himself or herself whether or not to embark on the procedure. An adult patient who is in a position to make a choice has the right to elect a surgical procedure which the hypothetical 'reasonable' person in his or her shoes would avoid, and to refuse a procedure which the hypothetical 'reasonable' person in his or her shoes would embrace." (at 6)
62 Although the submission correctly states what Mason P said in O'Brien, a little more information about the case is needed to put it in perspective in relation to the present case.
63 O'Brien was, like Rogers v Whitaker, a warning case. The trial judge had held that the doctor's warning to the patient had been deficient. Although that finding was questioned in the appeal, the question was not decided. The appeal was upheld in favour of the doctor on the ground that even if the doctor's warning had been deficient the evidence had not established that had an appropriate warning been given the patient would not have undertaken the particular treatment or procedure. The case illustrates, what in any event seems quite clear, that there is no inconsistency between requiring that a doctor discharge the various duties to which he or she becomes subject in the course of any doctor/patient relationship and recognising the autonomy of the patient in decision making upon appropriate information. What was submitted on behalf of the plaintiff in the present case, in various forms, was that the defendant here had a duty to remind the patient of the advice that it was necessary for her to have a D and C procedure in order to eliminate the possibility of cancer. Such a reminder would not in any way entrench upon her right to decide whether or not she would undergo the procedure.
64 In my opinion the trial judge's view that it was the legal duty of the defendant to remind the plaintiff of the need for a timely D and C procedure in no way cut across the patient's autonomy and any rights the law recognises as bound up with that autonomy.
65 The second main argument on the duty question was that it was too onerous in practical terms to hold that the content of the duty included an obligation on the part of the defendant at the least to inquire why the plaintiff was apparently not taking his advice to have a timely D and C procedure. The trial judge's reasons which have been set out above in my opinion give a quite satisfactory answer to this proposition. In the course of those paragraphs of his reasons the trial judge remarked that there was no reason to think that to have a system by which a patient would be reminded of the doctor's advice and the reasons for following it "would create enormous practical or administrative difficulties ... or be prohibitively expensive." On the materials in this case this seems to me to be a fair observation by the trial judge.
66 It had been suggested to the defendant in cross-examination that it would be very cheap to have a particular system which would be simple and effective. When asked whether the suggested system would not be a very cheap one, he did not reply (see par 28 above). When asked again, he said he did not know what the cross-examiner meant. There was no re-examination of the defendant on this point.
67 The court was thus left without any evidence from the defendant's side to support a conclusion that the requirement of a reminder system would be unreasonably onerous upon the defendant. The evidence before the judge was that the defendant had one operating session at the Auburn District Hospital a week at which he usually had one major and probably three minor cases. Even if all his minor cases were D and C procedures, there would not be a great number to keep track of. In the absence of any facts or reasons (other than simple assertion) being advanced why it would be unreasonably onerous for a follow-up system to be put in place and operated by the defendant's receptionist, I do not think the trial judge's view on this point can be reasonably criticised.
68 In my opinion the two main arguments in the appeal against the trial judge's conclusions on the content of the doctor's duty to the patient fail.
69 The further researches done by counsel at the request of the court after the oral argument to my mind reinforce the correctness of the decision arrived at by the judge on the materials before him.
70 First, in a general way, material contained in International Medical Malpractice Law by Dieter Giesen (1998) pp 150 to 157 supports the trial judge's position. At p 150 there is reference to Giurelli v Girgis (1980) 24 SASR 264 accepting a dictum by White J (at 270) that if there is a breakdown of communications between physicians and hospital departments owing to defects in their established procedures or to a lack of "feed-back" between them, then the patient should not suffer as a result. On the same page two cases are referred to, one from Australia (Samios v Repatriation Commission (1960) WAR 219) and the other from Canada, in which hospitals were held liable both for radiologists who failed to forward X-ray results and physicians who consequently misdiagnosed a dislocated shoulder and a dislocated wrist. Then (at 151) a Queensland case, Thomsen v Davison (1975) QdR 93, is noted, in which a pathologist to whom samples of blood and other specimens had been sent was held negligent for failing to take reasonable steps to ensure that the results were communicated to the referring physician. Then an English case is mentioned (also at 151) in which it was held negligent to fail to make adequate arrangements for a patient to report to the physician on developments in his condition after treatment.
71 The following passage then appears (at 152):
"A physician may expect his patient to co-operate in their common effort to restore the patient's health and, thus, may normally also expect a patient to behave reasonably in, for instance, presenting himself for an agreed appointment, heeding an important warning, ... or returning for treatment or further checks as requested." (Citations omitted)
72 The text then proceeds:
"however, a physician may not always be justified in relying on a patient to behave reasonably in following his instructions, and certainly not in cases where difficult instructions have to be heeded and dangerous procedures are to be tried." (Citations omitted)
73 The text then refers to various examples where the medical practitioner's duty continues notwithstanding that the patient would be expected to be anxious to co-operate.
74 These last two passages support the position taken by this court in Kalokarinos that responsibility for non-timely presentation may sometimes be shared between doctor and patient, but in doing so, also demonstrate the potential liability of the doctor.
75 It would seem that all of the cases referred to in the text are, to a greater or lesser degree, distinguishable on their facts from those in the present appeal. They appear however generally to support the view that, depending upon the precise facts of the relationship between the doctor and the patient, when a doctor is treating a patient for what may be a serious health problem, and the doctor thinks it necessary, even if only for prudential reasons, that the patient should submit to a particular surgical procedure, then the doctor has a continuing duty to advise the patient to submit to the surgical procedure, so long as the doctor/patient relationship is on foot. This does not mean that the doctor should seek to impose the doctor's view upon the patient against the patient's will, but it does mean that the doctor has a duty to keep the doctor's opinion and advice before the attention of the patient so that the patient can decide upon the patient's course in light of up to date knowledge of the doctor's opinion.
76 This approach is supported by some observations in vol 1 of American Law of Medical Malpractice, by Pegalis and Wachsman, (1980), at pp 113 to 115, where it is pointed out that the relationship between doctor and patient, once established, cannot be ended at the mere will of the doctor but lasts until treatment is no longer required or the relationship is dissolved by consent or reasonable notice is given by the doctor to the patient so the patient may have an opportunity to engage the services of another doctor.
77 A point along these lines had been made on behalf of the plaintiff in the oral submissions in the present appeal although without any great emphasis being put on it as, in effect, a separate point. In the further written submissions the point was put more precisely and the position as stated in the text last referred to, adopted. The submission then continued that in the present case the relationship of patient and doctor continued between the plaintiff and defendant between December 1992 and August 1993, that it was at no stage terminated and that the defendant's duty to ascertain the cause of the plaintiff's post menopausal bleeding during that period continued, so that his failure to diagnose it until August of 1993 was a breach of his duty.
78 I am prepared to adopt this submission of the plaintiff. The approach seems to me to be reasonable.
79 The defendant's further submissions drew the court's attention to a case in the United States District Court for the District of Columbia, a first instance decision (on a post trial motion) handed down in 1990: Forman v Pillsbury, 753 F.Supp.14. This was a case in which a plaintiff's claim that follow-up treatment had been negligent failed. The duty asserted in that case was that the doctor must "make sure that a patient comes to the office for treatment" and, further, must "provide alternative arrangements and ... make the patient comply when the doctor is on vacation or otherwise not available" (p 4 of the Lexis print). The plaintiff was thus contending for a duty of care with a much more onerous content than the plaintiff in the present case asserts. The trial judge, Harris J, said the plaintiff's claim "would set an impossible standard". He said a doctor could not compel a patient to come to the office for treatment nor force a patient to follow his recommendations outside the office. His view was that at best the doctor's obligation "consisted of informing the plaintiff of the need for monitoring and performing the tests with the plaintiff's co-operation" (p 4 of the Lexis print). The judge did not make a positive finding concerning the extent of the obligation as last mentioned, all he needed to do was to find against the plaintiff's claim, pitched at the unrealistically high level that it was. Nevertheless, his suggestion of what the doctor's obligation may well have consisted of is very similar to what the plaintiff has claimed in the present case.
80 By contrast, it was submitted for the plaintiff that Kite v Malycha (1998) 71 SASR 321, a decision of Perry J, was much closer to the present case. In Kite the defendant medical specialist performed a biopsy on the plaintiff which was reported on by pathologists. The pathology report indicated carcinoma of the breast. This report did not reach the specialist, who did not have any system to ensure results were received and brought to his attention. By the time the plaintiff was diagnosed with breast cancer her prognosis and life expectancy were worse than would have been the case had the specialist seen to it that he found out what had happened to the pathology report.
81 Perry J held that on the facts before him the standard of care imposed on the defendant required him inter alia to make enquiry if a pathology report were not brought to his attention and to have a follow-up system to record the fact that a pathology report was received or not received. He found the defendant liable in negligence. He also found that the plaintiff had owed a duty to exercise reasonable care for her own safety and well-being, but, in the circumstances of the case was not guilty of contributory negligence. Perry J pointed out that the simplest of systems would have provided a more or less foolproof means of checking whether pathology reports had been forwarded to the defendant's rooms, and that he had no such system (at 336-337).
82 Perry J also adopted the submission of counsel that it was "unreasonable for a professional medical specialist to base his whole follow-up system, which can mean the difference between death or cure, on the patient taking the next step." (at 337)
83 In the present appeal, the defendant's submission about Kite was that the facts were so different from those in the present case that it was of no assistance. I agree that the facts are significantly different but I do not agree that the case is not useful for the purposes of the present appeal. The more general statements of Perry J which I have mentioned seem to me to be well within the orthodox field of negligence and also seem to me to be applicable, as general propositions, to the circumstances of the present appeal.
84 One part of the defendant's written submission about Kite seems to me to be particularly revealing. Attention was drawn to one of the factual differences between Kite and the present case in the following terms:
"Unlike here, where there is no evidence to suggest that Dr Tai would have been informed by the Hospital in the ordinary course as to whether or not the RFA [ie the admission form] had been processed, in Kite, the doctor should have expected to receive test results in respect of tests he personally had commissioned."
85 The submission is accurate in saying there was no evidence of the kind mentioned, but this simply underlines the lack of any system of the defendant by which he could keep track of his patient's response to his advice.
86 In my opinion the defendant's practice in regard to his sending of patients to the Auburn District Hospital to put into train the fixing of dates for operations he advised them to have, was defective. No doubt, on most occasions, the arrangements made by the patients resulted in their being operated on at an appropriate time, as had happened with the plaintiff's two previous D and Cs. However, the defect in his practice was there and led, in the circumstances now before the court, to a dangerous delay in the diagnosis of the plaintiff's cancer.
87 I express no opinion on the question whether the Hospital and the plaintiff should be regarded as sharing the blame for the delayed diagnosis. The Hospital's position was not litigated before the trial judge and this court is not in a position to say anything about it. The question of the plaintiff's possible contributory negligence was litigated before the trial judge and he found in the plaintiff's favour. The defendant did not raise this aspect of the case in the appeal, so that, again, this court is not in a position to express any opinion about it.
The second main issue .
88 For the defendant it was submitted that there was no evidence upon which the trial judge could find that signs of cancer would probably have been discovered if the D and C had been carried out in what was in the circumstances a reasonable time from the defendant's advice of 9 December 1992 to the plaintiff to take the admission form to the Hospital so that he could carry out the D and C procedure on her. This submission was founded upon the following question and answer in the examination in chief of Professor Tattersall.
" Q. Is it your opinion, doctor, that had the D and C been carried out in October or indeed December of 1992 that the diagnosis of ovarian cancer could have been made?
A. I believe so ." (AB1/169, lines 53-56)
89 It was submitted, correctly, that for this part of her case the plaintiff was relying on the evidence of Professor Tattersall, and it was then submitted that the foregoing answer showed that his opinion only went so far as saying that it was possible, not probable, that if the D and C had been done at an appropriate time, the diagnosis of the cancer would have been made.
90 I do not think this submission should be accepted. It depends upon a particular meaning of the word "could" in the question to Professor Tattersall. The word has different shades of meaning according to context. One meaning is that which the defendant asserts, namely "might". Another equally ordinary meaning is "would have been able to". If Professor Tattersall's question and answer are looked at in isolation from the rest of his evidence, it would be open to think that the meaning is that contended for on behalf of the defendant, although the other meaning would, in my opinion, be equally open. When however the question and answer are looked at in the light of the whole of Professor Tattersall's evidence, it seems to me that the only reasonable meaning to give to the word is the second meaning.
91 Professor Tattersall had made a written report dated 21 October 1996. This was tendered in the course of the plaintiff's application on 11 December 1996 to add the Hospital as a defendant. At the end of that day, as earlier mentioned, it was tendered as evidence in the action against the defendant. Professor Tattersall gave his oral evidence in the action on 12 December 1996. Thus his report was already in evidence at the time when he was asked, in examination in chief, the question the answer to which is relied on by the defendant.
92 In Professor Tattersall's report he said, amongst other things:
"It is more likely than not that the vaginal bleeding of which she complained in October 1992 and subsequently was due to the cancer, and had the diagnosis and treatment been undertaken in late 1992 rather than in August 1993, the tumour would likely not have spread within the pelvis such that a colostomy was required as part of the surgical treatment." (AB2/531, K-M)
93 The remainder of the report and the whole tenor of his answers in his oral evidence show, in my opinion, that the word "could" in the answer relied on carried the second of the two meanings I earlier described. There was, in my opinion, ample evidence for the conclusion the trial judge arrived at on the causation question.
94 In my opinion this branch of the appeal also fails.
Conclusion .
95 In my opinion the appeal should be dismissed with costs.
(Note: All excerpts from the transcript are reproduced as they appear in the appeal papers.)
96 HANDLEY JA: I agree with Priestley JA and Powell JA.
97 POWELL JA: The facts which have given rise to these proceedings and this appeal have been set out in the judgment which has been prepared by Priestley JA which I have read in draft form.
98 If I may, with respect, say so, the issue which, on the hearing of the appeal, the Appellant's counsel put forward as the principal issue, and as being an issue of considerable importance in the practice of medicine was, as counsel was later to accept, not one as to the nature of a doctor's duty to his patient. Nor, if I may say so, was it an issue as to the scope and content of the duty of a doctor - whether general practitioner or specialist - towards his patient in all cases; it was an issue as to the content of the Appellant's duty to the Respondent given the facts established in this case. The consequence of the Appellant's submissions on this issue being presented in the manner in which they were was, as it seems to me, to divert attention from what is the true issue in this part of the Appellant's case.
99 Although, as the decision of the High Court in Rogers v. Whitaker (1992) 175 CLR 479; (see also Albrighton v. Royal Prince Alfred Hospital [1980] 2 NSWLR 542; F v. R (1983) 33 SASR 189, Battersby v. Tottman (1985) 37 SASR 524; E v. Australian Red Cross (1991) 27 FCR 310) makes clear, the courts in Australia apply a different standard from that applied in England (see Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 AER 118; Whitehouse v. Jordan [1981] 1 WLR 246; [1981] 2 AER 267; Maynard v. West Midland Regional Health Authority [1984] 1 WLR 634; Sidaway v. Governors of the Bethlem Royal Hospital [1985] AC 891) when determining whether, in any particular case, a doctor has discharged his duty of care towards his client, there does not appear to be any difference between the courts in each country as to the nature of that duty. Thus, in Rogers v. Whitaker supra at 483, the High Court (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) said:
"The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is 'a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment'; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case."