Carr & Anor v Anderson [2001] QDC 300

DISTRICT COURT OF QUEENSLAND CITATION: Carr & Anor. v. Anderson [2001] QDC 300 PARTIES: IAN JOHN CARR (First Plaintiff) And TERRI CARR (Second Plaintiff) And KEITH ANDERSON (Defendant) FILE NO/S: D264 of 2001 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: Maroochydore DELIVERED ON: 9th November 2001 DELIVERED AT: Maroochydore HEARING DATE: 22nd-23rd October 2001 JUDGE: Judge J.M. Robertson ORDER: Judgment for the defendant against both plaintiffs with costs. CATCHWORDS: Negligence – medical negligence – first plaintiff had suppressed immunity and susceptible to skin cancers; defendant doctor diagnosed skin lesion as dermatitis, but subsequent diagnosis was cancer – whether doctor breached duty of care COUNSEL: AJH Morris QC with P de Plater (for the plaintiff) SC Williams QC with GW Diehm (for the defendant) SOLICITORS: Boyce Garrick Lawyers (for the plaintiff) Flower & Hart Solicitors (for the defendant) [1] The first plaintiff was born in the United Kingdom on the 23rd July 1944. He emigrated to New Zealand and continued his employment as a police officer until 1986 when he was discharged as medically unfit. He was diagnosed with Alpha I. antitrypsin deficiency, which is a severe progressive lung disease, and after moving to Australia he underwent a single lung transplant at St Vincents Hospital in Sydney in November 1993. His younger brother had a similar transplant as a result of the same disease in 1991, and he died in November 2000 aged 47 years. Similarly, his older sister died very soon after a lung transplant in or about 1992. The first plaintiff married the second plaintiff on the 30th October 1979. -- 1 of 7 -- 2 [2] As a transplant recipient, the first plaintiff was required to take a range of drugs some of which were designed to prevent rejection. Soon after the transplant, the first plaintiff came under the care of general practitioner Dr Mark Bown at the Point Cartwright Family Medical Centre, however the first plaintiff was also in the habit of attending the Kawana Waters 24 Hour Medical Centre from time to time, despite having regular (average three weeks) consultations with Dr Bown. It is common ground that a person in the position of the first plaintiff as a transplant recipient is considerably more susceptible to the development of cancerous skin lesions than the average person, because of the repression of his immune system by the anti- rejection drugs. [3] It is really not in issue on the evidence that the first plaintiff was aware of the increased risk of such cancers, and was very vigilant in ensuring that any suspect lesion or growth was attended to by a doctor as soon as possible. It is common ground that the first plaintiff was very reluctant to attend hospitals for any form of treatment because of his fear of infection associated with such visits. He had a similar concern about crowded waiting rooms at Dr Bown’s surgery. [4] The evidence establishes that over the years, Dr Bown removed a number of suspect lesions from the first plaintiff’s body, including a squamous cell carcinoma (SCC) from his right cheek on the 13th September 1999. [5] The claim relates to a visit to the Point Cartwright surgery on the 19th October 1999 by the first plaintiff. Dr Bown was on leave and the defendant was working at the surgery as a locum tenems. He spent a total of three weeks at the practice; as locum for one week for each of the members of the practice. [6] The first plaintiff attended the surgery for two reasons; however there is considerable dispute as to what occurred during the visit. [7] The first plaintiff was a very passionate and, at times, emotionally labile historian. His present predicament is sad indeed; and I think explains to some extent his various emotional outbursts particularly during cross-examination. In addition, he suffers hearing difficulties as a result of his medical condition; and these difficulties tended to compound the problems he had in giving evidence. I do not think he was engaged in “a performance” as Mr Williams suggested; rather he presented to me as understandably overwrought and extremely stressed by his sad predicament. I am satisfied that he is fully convinced of the accuracy of his recollection as to what occurred between himself and the defendant. The defendant presented as a confident witness who was clearly aggrieved by any suggestion of error on his part. At times he responded somewhat arrogantly to proper questions put to him by Mr Morris; and at time he was somewhat disingenuous in his responses. An example was his evidence about what the first plaintiff had said to him about the scalp complaint. At first in cross-examination, he confirmed that the first plaintiff had referred to the scalp condition as “a lump”; later he seemed to recant from that evidence. I am satisfied that, to a considerable extent, the defendant’s evidence before me is based on his contemporaneous notes made during, or immediately after, the consultation. I am satisfied that he does have some personal recollection of the first plaintiff. There was evidence from the first plaintiff and Dr Bown, that leads me to conclude that, in dealing with receptionists, nurses, and doctors, the first plaintiff was forceful and at times demanding. -- 2 of 7 -- 3 [8] The first plaintiff’s credibility is a very important issue in the trial. He told me that he went to see the defendant for two reasons. The first was what he described as a “crackle” in his right lung, which is his remaining natural lung which has approximately 10% function. Because of the obvious risks, he had been provided with a course of the antibiotic Augmentin with instructions from (I infer) Dr Bown to immediately commence Augmentin at the first sign of infection. He had commenced Augmentin the previous night. The second reason he attended the doctor’s surgery was to seek advice about a scalp condition. He had a “tingle” to an area which he pointed to on the left back of his scalp which itched. At the present time, the first plaintiff has lost his hair, no doubt as a result of chemotherapy, however it is common ground that on the 19th October 1999 he had a reasonably full head of hair. Both the first plaintiff and Mrs Carr could feel something there. He said it felt like “a bump”; she described it as a raised area of about 1cm which felt crusty on the top. In cross-examination he described it as a “lump, it was tiny, it was raised”. She also noted that it was red and inflamed; “you could tell he’d been rubbing at it, scratching at it”. [9] The first plaintiff described what he says occurred when he went into the consulting room. He sat at the end of the defendant’s desk closest to the door, with the defendant to his left facing the wall. He noticed his large medical file on the desk to the left of the defendant. The defendant says he “read” the file while he was talking to the first plaintiff. He obtained the file from the desk when he went out to collect the first plaintiff for the 15 minute consultation. The first plaintiff says the defendant never opened the file. I do not think the defendant had time to read the file and I find that he probably did not. I do find (as the defendant readily acknowledged) that he was aware that the first plaintiff was a transplant patient – because the first plaintiff told him that – and he was conscious of the increased risk of cancer because of the first plaintiff’s immuno suppressed status. The first topic discussed on the first plaintiff’s version of events was the chest crackle. The first plaintiff told the defendant that he had commenced a course of Augmentin, and he says the defendant gave him another prescription for the medication at his request and did nothing else. Specifically, the first plaintiff says positively that the defendant did not listen to his chest. The first plaintiff then referred to his scalp problem. He says that the defendant remained seated and it was necessary for him to lean right forward in his chair towards the defendant to show him the area of concern. The first plaintiff says he pointed to the spot. In his evidence in chief he described what he could feel as a “bump” a little bigger than ¼ inch across. He says the defendant, while remaining seated, placed his hand on the back of the first plaintiff’s head and said words to the effect that he couldn’t find anything. The first plaintiff says he then took the defendant’s finger and put it on the spot. The defendant then said words to the effect “it is only dermatitis”. The first plaintiff says he told the defendant that he wanted it biopsied and removed, but that the defendant refused saying in effect that he was not going to cut out an area of dermatitis. The first plaintiff says the defendant used the words “angry dermatitis” and appeared to get annoyed. The first plaintiff says he was upset; he got up to leave, and the defendant then stood up and told him not to overreact, it was only dermatitis and nothing else. The first plaintiff says he was convinced by the defendant’s words. He says the defendant recommended the application of a dermatitis cream; and the consultation ended. -- 3 of 7 -- 4 [10] The first plaintiff says he had to go home to get some extra money to buy the cream, and then he applied it and so did his wife. In his evidence he said that over the following months he had more appointments with Dr Bown when he (the first plaintiff) made no mention of the “dermatitis”. On the evidence, I am satisfied he saw Dr Bown on the 19th November 1999 in relation to a renal problem and did not mention his scalp. He first raised the issue with Dr Bown on the 21st December 1999. The first plaintiff quite reasonably has no memory for dates. In his evidence he described what I find to be the December visit; when he showed Dr Bown his scalp and Dr Bown told him it was probably cancerous. Dr Bown gave evidence for the defendant. He has a clear recollection of the 21st December 1999 visit, and made notes. I accept his evidence that he made a provisional diagnosis of a squamous cell carcinoma and recommended that it be surgically removed immediately in hospital. Because of the first plaintiff’s fear of hospitals, he persuaded Dr Bown to undertake the procedure himself which Dr Bown agreed to reluctantly. I find that Dr Bown informed the first plaintiff to make an appointment to have it removed as soon as possible. Because the provisional diagnosis was made during a standard 15 minute consultation there was no time to undertake the procedure on this occasion. Dr Bown recalls that the lesion was red and scaly and was approximately 1cm in diameter. He expected that he would see the first plaintiff in the next few days; and was “astonished” to find that the first plaintiff did not return for this purpose until the 20th January 2000. He was astonished because of his knowledge of the first plaintiff’s heightened concern about lesions, and because in the past he had usually complied with his advice and returned, sometimes the same day after surgery to have a suspect lump removed. I accept Dr Bown’s evidence however that the first plaintiff was not always compliant, and did on occasions self-medicate; and, as I have noted the first plaintiff’s practice was to also use the Kawana 24 Hour Medical Centre where he would see doctors who were complete strangers to him. In his evidence before me I find that the first plaintiff has, in effect, compressed two visits to Dr Bown – those of the 21st December 1999 and the 20th January 2000 – into one occasion. In so doing, I find he is mistaken. When Dr Bown looked at the lesion on the 20th January 2000 he was alarmed to note that it had grown significantly and was now 1.5 – 2cm in diameter. He dictated a letter to Nambour Hospital that night and made the necessary arrangements to have the lesion removed there. He did undertake a punch biopsy which confirmed his provisional diagnosis of SCC. Clearly, the first plaintiff’s mistake in compressing two occasions into one, particularly given the significance of both visits, is a most relevant factor in assessing his reliability. [11] The first plaintiff positively denied that he was asked by the defendant to return in a week to see Dr Bown. [12] The defendant’s version of events as to what occurred on the 19th October 1999 is significantly at odds with the evidence of the first plaintiff. As I have found, his recollection is based substantially on his notes which he made, either at the time or immediately afterwards. The notes are in evidence and are part of Exhibit 6. Apart from the date, the notes are in the defendant’s handwriting and read: “19 Oct 1999 Cough 10/7. For sputum. Has taken Augmentin. Area of dermatitis scalp – aggravated by brushing – v inflamed ∴ leave alone for a week.” -- 4 of 7 -- 5 [13] There is no suggestion that the defendant added to, or changed the notes later when the dispute arose; indeed he had no opportunity to do so. I find that the notes were made by him either during the consultation (which I think is more probable) or immediately thereafter. [14] The first plaintiff denies he had a cough for ten days prior to the consultation, and indeed Mr Morris makes the point that in this hyper vigilant person with a lung transplant, who was very aware of the dangers of any chest infection, it would be highly unlikely for him to wait ten days before seeing a doctor. The first plaintiff denies any request for a sputum sample and denies saying anything about brushing. His evidence is that he has never brushed his hair; he always used a comb. [15] The defendant says he did listen to the first plaintiff’s chest with his stethoscope; but was satisfied with the first plaintiff’s action in commencing Augmentin. He says he did get up from his seat, and he looked at the scalp area which he noted was very inflamed. In evidence he said that it was also moist. His decision not to touch the area or take a biopsy while so inflamed is supported by the other medical evidence, e.g. Dr Beardmore (Exhibit 11). He denies recommending any use of a dermatitis cream and he says he told the first plaintiff not to touch the area and to return in a week. He readily concedes that the first plaintiff was difficult, and I think it is probable that the defendant did become somewhat impatient. He said that the first plaintiff wanted him to cut it out, but that he refused, and this was the reason for some friction between them. [16] In my view, the contemporaneous notes made by the defendant are critical to the resolution of the issue of reliability. There is no doubt that the defendant is an experienced, well qualified medical practitioner, with considerable experience in skin cancers. It offends logic and common sense that he would record in his notes at the time facts which were not true. No reason for such an extraordinary proposition have emerged in the evidence. I do not think the reference to “brushing” is of any moment; it may well result from issues of interpretation and communication. It offends logic to find that the defendant would record reference to a sputum sample, if that indeed was not discussed. As to the issue about the cough, another issue emerged in evidence which has lead to a conflict in recollection between the first plaintiff and another doctor as to what was said in the course of a consultation. Dr McGovern is a specialist plastic surgeon. It was he who removed the lesion from the first plaintiff’s scalp at Nambour Hospital. He first examined the first plaintiff at Nambour General outpatients on the 28th February 2000. In contemporaneous notes Dr McGovern has recorded that the scalp lesion had been present for two years. In a statement tendered in evidence (Exhibit 9) he confirms that the first plaintiff gave him this history. The first plaintiff says he did not tell Dr McGovern that this lesion was present for two years, rather he says he told the doctor that he’d other lesions on his body for that period. Dr McGovern is positive that his note refers to the specific lesion, not to other lesions. I prefer his evidence. He had been requested to look at this specific lesion, and his notes support his evidence. Again, in my view, it offends logic and common sense to hold that the defendant, in recording his contemporaneous notes has deliberately, but mistakenly recorded reference to a cough if that is not what he was told by his patient. The same observation can be made in relation to the sputum test. If this was not discussed, it makes no sense that the defendant would make reference to it in his notes. I think it is highly improbable that the defendant did not examine the first plaintiff’s chest with his stethoscope. -- 5 of 7 -- 6 One of the difficulties I have in accepting the first plaintiff in this regard, is that on his own evidence, the defendant has correctly recorded matters that were discussed, e.g. that he had taken Augmentin, and reference to the scalp condition as “dermatitis”. It seems to me highly unlikely that the defendant would, in those circumstances, “make up” facts, if these issues were not in fact discussed. [17] In his evidence, the first plaintiff says he mentioned the word “dermatitis” in his consultation with Dr Bown on the 21st December 1999. He says that when Dr Bown looked at the area he said “Ian that is not dermatitis”. Dr Bown is positive that there was no reference back in any way to the consultation with the defendant; and he believes that if there was a reference to “dermatitis” that would have alerted him to the earlier note which was on the same page just above the 21st December entry in the clinical notes. Dr Bown was a careful, impressive witness who clearly has a great deal of professional sympathy and concern for the first plaintiff’s welfare. Indeed, the first plaintiff, it seems justifiably, has a great deal of faith in Dr Bown’s professional judgment. I accept Dr Bown’s evidence on this point. [18] The critical part of the defendant’s evidence is the evidence that he requested the first plaintiff to return in a week. This evidence is supported by the notes. For the reasons I have identified, the first plaintiff’s recall in a number of respects is faulty. This is not meant to be a criticism of him for the reasons I have set out, rather it is a conclusion which I think must be drawn on the evidence and despite some unfavourable impressions of the defendant which I have mentioned. I prefer the evidence of the defendant to that of the first plaintiff as to what occurred at the consultation on the 19th October and for that reason alone, the first plaintiff’s claim must fail. [19] It is necessary for me to assess damages. For that purpose, it is necessary to deal with the events subsequent to the 19th October 1999. [20] The first plaintiff first mentioned the scalp lesion to Dr Bown on the 21st December 1999 and as I have noted Dr Bown made a provisional diagnosis of SCC and he estimates it was then circular in shape and 1cm in diameter, and too large to be removed by Dr Bown in his surgery although he was persuaded to do so by the first plaintiff. When the first plaintiff did return on the 20th January 2000 the lesion had increased significantly in size and was now 1.5-2cm in diameter. This fact is significant in the evidence of a number of the medical witnesses. Based on the evidence of Dr Beardmore, Dr McGovern and Dr Wainwright I find that it is more probable than not that the “area of dermatitis” observed by the defendant on the 19th October 1999 was either an area of infected solar keratosis or infected Bowen’s disease (intra-epidermal carcinoma or IEC). Mr Morris relied on Dr McGovern’s opinion in paragraph 2 of page 1 of Exhibit 8 that “Dr Anderson’s diagnosis of dermatitis was certainly incorrect in retrospect”, however, when read as a whole, I am satisfied that Dr McGovern agrees with Drs Beardmore and Wainwright that what was observed was either infected solar kerotosis or infected IEC. -- 6 of 7 -- 7 [21] I am also satisfied on the basis of the evidence of Drs Beardmore, Wainwright and McGovern on the balance of probabilities that at the 19th October 1999 no SCC was present. In my view, the evidence at its highest establishes only a mere possibility of SCC at the time the defendant observed the area. In those circumstances I find that the first plaintiff would have had the surgery and experienced the subsequent distressing radiation therapy and chemotherapy referred to in the report of Dr Levi (Exhibit 3), in any event. [22] There was some evidence from the first plaintiff in support of a claim for past and future economic loss. Throughout the relevant period, he was on a pension but he says he earned some money from a truck which involved the client loading and unloading and the first plaintiff acting as driver. No documentation was produced to support this claim, e.g. income declaration forms to the relevant Government department; copies of ads which the first plaintiff said he placed in the local paper, and income tax returns. To establish any economic loss the first plaintiff must prove the claim on the balance of probabilities and I agree with Mr Williams that the evidence here falls far short of the necessary standard. [23] There is also a claim for gratuitous services performed by Mrs Carr on her husband’s behalf. She frankly agreed that these services which are set out in Exhibit 2 primarily relate to his illness and disability after radiation and chemotherapy which I have found would have occurred in any event. The same finding necessarily follows in relation to the special damages (Exhibit 5) and travelling expenses (Exhibit 1). [24] That leaves only a small component for pain and suffering, which must be heavily discounted. As a result of the metastasis of the SCC on his scalp, the first plaintiff’s life expectancy now is between 6 and 12 months, indeed on the evidence of Dr Levi (Exhibit 3) he could die at any time. As a transplant patient his life expectancy was considerably compromised in any event. I accept the evidence of Dr Glanville, that having survived five years, in 1998 his life expectancy was between 5 and 10 years. I am satisfied that the first plaintiff was doing well, until he was affected by this cancer. As I have found, the first plaintiff delayed, for reasons that are not disclosed, for nearly five weeks from when the SCC was diagnosed by Dr Bown until he returned for its removal. In this context, this is another factor relevant to the issue of damages which is pleaded as contributory negligence. I intend to take this into account in making the final assessment. [25] I assess damages under the head of pain and suffering at $10,000 and I will allow interest on $9,000 at 2% per annum for 2 years which is $360. I note that the calculations for gratuitous services (Exhibit 2) and travelling expenses (Exhibit 1) and specials being the refund to HIC and other specials, have been undertaken by Mr de Plater in a document entitled “First plaintiff’s” summary of damages which I have placed with the file. [26] In view of my findings the second plaintiff’s claim must also fail. [27] I give judgment for the defendant against both plaintiffs with costs. -- 7 of 7 --