The Supreme Court of New South Wales has dismissed a delayed diagnosis claim against two medical practitioners arising from an alleged failure to diagnose syphilis in 2018. The proceedings were determined following an application by the defendants under rule 29.10 of the Uniform Civil Procedure Rules 2005 (NSW).
In issue
- Whether two medical practitioners were negligent in failing to diagnose and treat the plaintiff’s syphilis during consultations in 2018, and whether any alleged delay in diagnosis caused the injuries complained of.
- The proceedings were determined following an application by the defendants under rule 29.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which permits an 'opposite party' (generally the defendants) to apply for judgment in their favour at the conclusion of the evidence of the 'beginning party' (generally the plaintiff), on the ground that, based on the evidence given, a judgment for the beginning party could not be supported.
The background
The plaintiff, who was self-represented at trial, alleged that general practitioners Dr Robert Burton and Associate Professor Mark Bloch failed to diagnose and treat his syphilis during consultations at the Holdsworth House in 2018.
The plaintiff attended one consultation with Dr Burton on 30 May 2018, and subsequently consulted Associate Professor Bloch on 13 July, 3 August and 13 August 2018. He was ultimately diagnosed with secondary syphilis at Royal North Shore Hospital on 14 November 2018.
The essence of the plaintiff’s claim was that during each of the consultations with Dr Burton and Associate Professor Bloch in 2018 he had syphilis, and that Dr Burton and Associate Professor Bloch should have elicited his history, ordered appropriate testing, diagnosed him with that infection, and commenced a course of treatment. The plaintiff alleged that, had appropriate sexual history-taking and investigations such as comprehensive STI assessment been undertaken earlier, his syphilis would have been identified and treated sooner, thereby avoiding or reducing the injuries he claimed to have suffered.
Because of his untreated syphilis, the plaintiff alleged that he suffered:
- injury to his left eye including blurred vision, which required vitrectomy
- injury to his cervical spine, including pain and restriction of movement
- psychological and psychiatric injury
- shock, and
- general bodily and psychological trauma.
The decision at trial
The plaintiff relied upon expert evidence from Dr James Lynch, general practitioner. Dr Lynch opined that, assuming the plaintiff had syphilis on the relevant occasions, the risk was reasonably foreseeable, not insignificant and that a person in the defendants’ position exercising reasonable care and skill in the provision of treatment and professional advice would have taken steps to more thoroughly investigate the plaintiff’s symptoms, including by recommending a comprehensive STI assessment. However, Dr Lynch accepted in cross-examination that he could not determine when the plaintiff had contracted syphilis, and that his criticisms assumed the plaintiff in fact had syphilis at the relevant consultations in 2018.
For the case against Dr Burton, the Court found there was no evidence capable of establishing that the plaintiff had syphilis at the time of the 30 May 2018 consultation. A report of Associate Professor Phillip Braslins, prepared at the instruction of the defendants’ solicitors, but tendered by the plaintiff at trial, noted that the plaintiff’s syphilis infection was contracted some time after 13 July 2018 and at least one week before 9 November 2018. His Honour observed that it would have been ‘impossible for Dr Burton to have diagnosed Mr Williams with an illness which he did not have when he presented for assessment’. On that basis alone, the case against Dr Burton failed.
As against Associate Professor Bloch, the Court accepted for the purposes of the application that, based on Associate Professor Braslins’ evidence, it was possible that the plaintiff had syphilis when he attended Associate Professor Bloch on 3 and 13 August 2018. However, the Court considered it significant that the plaintiff had not disclosed a red lesion that appeared on his genitals shortly before 10 July 2018 to either defendant. The plaintiff characterised this to be a ‘private symptom’, the import of which he did not comprehend. The plaintiff’s evidence was that he later understood it to be a lesion typical of primary or secondary syphilis. The Court found that even if the lesion constituted evidence of the presence of syphilis during the first consultation with Associate Professor Bloch, it goes nowhere because the plaintiff did not disclose it to Associate Professor Bloch. Therefore, there was no breach of duty.
In the 'counterfactual world' the plaintiff hypothesized that, had the defendants provided STI information, he would have disclosed his symptoms and requested an STI test. The Court noted that this evidence, of what the plaintiff would have done, is inadmissible under s 5D(3)(b) of the Civil Liability Act 2002 (NSW).
The plaintiff asserted that had he been aware of the risk and obtained an STI test, the syphilis would have been detected earlier and that, ultimately, this would have prevented serious complications or greatly reduced them. However, the Court found that the plaintiff failed to marshal evidence demonstrating that earlier intervention would have prevented or ‘greatly reduced’ serious complications.
The Court emphasised that the plaintiff was required to adduce probative counterfactual evidence demonstrating that a timely diagnosis would more probably than not have produced a different clinical outcome. The generic claim that early identification might have made a difference was confirmed to be insufficient. In any event, the plaintiff was noted to have adduced evidence of neither.
Ultimately, the Court held that the plaintiff’s evidence focused on the question of breach but did not grapple with the evidential burden of establishing, on a counterfactual basis, how a delayed diagnosis of syphilis by the defendants clinically worsened his position. Without such evidence, the Court held that no prima facie case existed.
The Court entered judgment in favour of the defendants pursuant to rule 29.10 of the UCPR and ordered the plaintiff to pay the defendants’ costs.
Implications for you
This decision reinforces several important principles relevant to medical negligence claims involving alleged delayed diagnosis, including that the plaintiff must establish, beyond establishing breach of duty of care, that an earlier diagnosis would more probably than not have produced a different clinical outcome.
The most significant aspect is the Court’s willingness to enter a judgment for want of evidence following the defendants’ application pursuant to rule 29.10 of the UCPR. This power is rarely exercised in practice in personal injury actions in New South Wales. The preparedness of the Court to do so provides some encouragement to personal injury defendants to consider bringing strike-out applications in certain cases if the evidence (or lack thereof) warrants it.
