A doctor’s duty to arrange preventative screening

date

12 June 2024

In issue

The issues before the court were presented in both a primary and alternate case:

Primary case

Whether on various occasions the plaintiff asked the defendant about the need for a Pap smear and was given the advice that it was not required because she was not currently in a sexual relationship; and
Whether during the entire period of 2014 to 31 August 2019, the plaintiff consistently asked the defendant whether she required a Pap smear because she knew its importance.

Alternate case

Whether the defendant could establish a defence under section 5O of the Civil Liability Act 2002 (NSW).
Whether the defendant sufficiently ensured that the plaintiff herself knew enough about her need for cervical screening and that she was provided access to undergo such a test.
Whether, in the circumstances, a reasonable person in the defendant’s position would have done what the plaintiff was arguing the defendant should have done.
Whether, if the defendant had done what the plaintiff argued she should have done, the plaintiff would have undergone cervical screening in enough time to prevent her incurable cancer.

The background

The plaintiff, Athena Kennedy, consulted the defendant, Dr Deepika Malhotra (general practitioner) on 28 occasions between 2014 to 2019 for various medical issues including women’s health. In 2020, the plaintiff was subsequently diagnosed with cervical cancer and underwent treatment. By May 2023, the cancer metastasised and her condition was deemed incurable with a limited life expectancy.

The plaintiff brought proceedings against the defendant in the Supreme Court of NSW, alleging the defendant failed to advise or inform her that she should be undergoing preventative screening (Pap smears or CST’s). Notably, the plaintiff alleged that the defendant advised her it was unnecessary to undergo these investigations as she was not sexually active at the time. The plaintiff alleged that she relied on this advice and did not seek to undergo any preventative screening. It was accepted by both parties that if this advice was provided, it was wrong. However, there was a factual dispute as to whether this advice was provided by the defendant.

The defendant denied that this advice was provided and her defence was essentially that she did everything that was required and appropriate in terms of raising the issue with the plaintiff. It was submitted that the defendant advised the plaintiff about the need for cervical screening and that at times the plaintiff informed the defendant that she had undertaken such screening. The defendant’s evidence at hearing, consultation records and evidentiary statement contradicted the plaintiff’s version.

The plaintiff further alleged that the defendant ought to have proactively reminded and encouraged the plaintiff to undergo screening but also that she ought to have organised the screenings. In response, the defendant’s position was that she had done all that was required to address this issue.

In respect to causation, the plaintiff was required to establish that if the defendant had not erred in taking reasonable care, she would have undergone the preventative screening at a time which would have allowed her to be properly treated and stopped the development of her incurable cancer. The plaintiff alleged she lost the opportunity to treat the cancer.

The decision

In the primary case, the court preferred the defendant’s version - that the alleged advice (to not undergo screening because she was not currently sexually active) was not given based on the following reasons:

The defendant was quite an experienced GP with expertise in women’s health, where such alleged advice given significantly juxtaposes Commonwealth government protocol and recommendations.
The plaintiff’s version was inconsistent and contrary to the defendant’s medical notes. Moreover, there was no argument by the plaintiff that the notes were made-up or generally inaccurate.
The court determined the plaintiff’s claims to be inconsistent with the defendant’s general practice.
The court noted the importance of the 1 April 2015 entry of 'Pap UTD', concluding that the defendant was justified in assuming the plaintiff was up to date.
There were inconsistencies in the plaintiff’s claim that she was regularly provided with advice that she did not need a Pap smear. Further, no evidence was put forward by the plaintiff as to why the defendant would have continually provided wrong advice.

The NSW Supreme Court also considered the alternative case based on alternative facts, with the following findings:

The defendant had not successfully established the section 5O defence.
The defendant did not fail to act with reasonable care.
In relation to causation, the evidence provided did not allow for the inference that if the defendant had raised the issue a few months prior, the plaintiff would have had the Pap smear. The court noted that although it could not conclude why the plaintiff did not undergo a screening, a decline in communications suggested she knew it was important and still failed to do so.

Cavanagh J rejected the plaintiff’s alternative case and found in favour of the defendant and ordered the plaintiff to pay the defendant’s costs.