The Plaintiff sued a radiologist and orthopaedic surgeon for failure to report on a pre-existing congenital spinal condition, and failure to conservatively treat the condition, respectively. Although the First Defendant admitted breach, the claim failed on causation. The Second Defendant denied breach, and its defence was upheld on the basis of there being no breach of duty, a ‘widely accepted professional practice’ argument and a lack of causation.
- Whether any established breach substantially caused the Plaintiff’s alleged loss
- Application of the ‘widely accepted competent professional practice’ defence as per s 5O Civil Liability Act 2002 (NSW) (CLA)
The 27-year-old Plaintiff, Ms Williams, pursued a claim against a radiologist (First Defendant), and an orthopaedic surgeon (Second Defendant) for failure to report on, and offer appropriate non-operative, conservative treatment for an anatomical spinal condition (being a congenital pars defect) (the pars defect).
The Plaintiff was referred to the First Defendant for a pelvis and hip x-ray and ultrasound (the scans) by her GP in relation to ongoing hip and lumbo-sacral pain in May 2012. She was 18 years old at the time. The Plaintiff alleged that the First Defendant was negligent as he failed to identify and report on the existence of the pars defect when it was present on the 2012 radiology scans.
The Plaintiff had previously consulted the Second Defendant in 2009 when it was reported that she suffered from iliac apophysitis left anterior superior iliac spine. The Plaintiff was again reviewed by the Second Defendant in June 2012 after the scans reported by the First Defendant. The Second Defendant reported to the Plaintiff’s GP that she was experiencing a recurrence of her iliac apophysitis and recommended she undergo cortisone injections, abstinence from sports, and three weeks’ rest. The case against the Second Defendant was that he failed to offer the Plaintiff appropriate conservative, non-operative management to treat the pars defect, despite the condition not having been reported by the First Defendant. Furthermore, the Second Defendant‘s evidence was to the effect that the Plaintiff made no referral to lower back pain during the 2012 consultation. No further investigations in relation to her spine were carried out.
The Plaintiff alleged that her symptoms became progressively worse over the 12 months following her consultation with the Second Defendant in June 2012, and she eventually developed urinary incontinence. The Plaintiff attended an osteopath in May 2013 who ordered a lumbar spine x-ray. The x-ray demonstrated 50% spondylolisthesis at L5 on S1. The Plaintiff was urgently reviewed by another orthopaedic surgeon who performed an L5/S1 spinal decompression and fusion procedure on her in June 2013 (the surgery). The Plaintiff claimed that on the balance of probabilities, had appropriate conservative treatment for the pars defect been initiated by the Second Defendant, she would not have proceeded to the surgery in 2013. The Plaintiff alleged that as a result of the surgery she suffers from a severe, disabling, and intractable neuropathic pain condition.
The decision at trial
Breach of duty
The First Defendant admitted breach of duty of care on the basis of a failure to report on the existence of the congenital pars defect in May 2012.
The Plaintiff claimed that the Second Defendant breached his duty of care as he relied on the report of the First Defendant and failed to make enquiries into her back pain, despite the Plaintiff not informing the Second Defendant of such pain. She alleged that as a result of the breach the Second Defendant failed to conservatively treat and manage her spinal condition and, if he had done so, she would not have required spinal surgery. The Second Defendant denied the breach on the basis that had he been given a report of back pain, he would have instituted conservative, non-operative treatment.
The Court held that the Plaintiff did not establish that the Second Defendant breached his duty of care, due to a lack of evidence, as the Plaintiff could not substantiate that she had informed the Second Defendant of her complaints of lower back pain. Additionally, the Second Defendant did not breach his duty by failing to offer conservative treatment as he simply was not aware of the pars defect as per the First Defendant’s report on the scans.
The ‘widely accepted competent professional practice’ defence as per s 5O CLA (NSW) was also successful in relation to the claim against the Second Defendant. The Court held that despite a factual dispute between the Plaintiff and the Second Defendant in relation to whether the Plaintiff had informed him of her lower back pain, the Second Defendant did not breach his duty by failing to enquire about such pain as her presenting complaint focused on hip pain. On the basis of the joint report of the orthopaedic experts qualified in relation to this matter, in circumstances where there were no complaints made of back pain by the Plaintiff on open ended questioning, the Second Defendant’s examination and treatment of the plaintiff amounted to competent professional practice.
The Plaintiff alleged that had the First Defendant reported the pars defect in 2012, further investigations would have been carried out and she would have been afforded the opportunity to attend physiotherapy and a spinal specialist immediately upon the diagnosis. She alleged that had she undergone immediate treatment, she would have been advised to cease or avoid any work that involved lifting, twisting, or bending, so her ligaments had time to mature and tighten, with further damage being avoided. The Plaintiff claimed that had this occurred, she would not have required spinal surgery and would not be suffering from her current chronic pain condition.
Despite the First Defendant having admitted breach, the Court held that the failure to report on the pars defect did not actually cause the Plaintiff’s loss. It was found that even if the First Defendant had identified and reported the Plaintiff’s spinal defect in 2012, her pain, condition and associated symptoms would have developed regardless of whether conservative treatment had been initiated at the time of the scans. In conclusion, the Court found that neither Defendant caused the Plaintiff’s loss, as her condition and progression to surgery were inevitable and could not have been avoided.
Implications for you
This decision provides a good example of the importance of medical practitioners generating clear, contemporaneous, and accurate records when treating patients, so that any factual disputes can be minimised and documentary evidence exists to support a practitioner’s recollection of relevant events.