In this recent ACT Supreme Court case the court rejected evidence from two oncologists holding that neither expert had the relevant experience and expertise to comment upon the critical aspects of the treatment provided by the defendant and rejecting the relevance of studies relied upon by those experts in forming their opinion.
The Supreme Court of the ACT considered:
- whether the plaintiff’s presentation and the results of radiology and pathology investigations performed by the defendant should have prompted earlier diagnosis and treatment of her pancreatic cancer;
- whether earlier diagnosis and treatment would have avoided the damage suffered by the plaintiff as particularised in the pleadings; and
- whether the expert witnesses called by the plaintiff to give evidence on these salient issues were appropriately qualified to do so.
The plaintiff, Faten Alrifai, first presented to Canberra Hospital complaining of chest pain, shortness of breath and nausea in December 2017.
After several further presentations, admissions and a number of investigations, she was diagnosed with pancreatic cancer 11 months later, in November 2018. She had surgery to remove the tumour on 11 November 2018 and received adjuvant chemotherapy but subsequently developed recurrent disease and, at the time of trial, had a terminal diagnosis with life expectancy in the order of 18 months.
The plaintiff claimed that the defendant was negligent in failing to diagnose and treat the condition in either January 2018 or April 2018 following CT scans performed by the defendant.
The defendant admitted that the failure to obtain a surgical opinion after a CT scan performed on 22 April 2018 and an endoscopic ultrasound (EUS) on 26 April 2018 showed ‘worrying architectural and cytological changes’ constituted a breach of duty which led to a delay in diagnosis and treatment of approximately 6 months. The critical question then became whether the loss and damage as particularised in the plaintiff’s Statement of Claim would have been avoided if that surgical opinion was obtained at the appropriate time.
The plaintiff’s loss and damage was particularised as including, most significantly:
- recurrence of pancreatic cancer;
- pain and suffering and emotional distress involved with chemotherapy treatment; and
- the need for palliative care, loss of income and loss of normal life expectancy.
She alleged that but for the negligence of the defendant, she would likely have been treated successfully and lived a full and normal life.
The Expert Evidence
The plaintiff’s experts, Professor Fox (a retired haematologist and oncologist) and Professor Morris (a surgeon specialising in surgical oncology) gave evidence to the effect that the CT scans performed in January 2018 demonstrated a mass which ought to have been identified as cancer and led to diagnosis and treatment of the plaintiff’s pancreatic cancer at that time, or certainly by April 2018. Professors Fox and Morris also gave evidence regarding causation which supported a finding that the loss pleaded by the plaintiff was caused by the negligence of the defendant.
For the defendant, Professor Katelaris (a gastroenterologist) and Professor Richardson (a laparoscopic and general surgeon) gave evidence that the investigations carried out by the hospital up to 26 April 2018 were appropriate and consistent with standards expected of a tertiary hospital. The defendant also called Dr Burg (an oncologist who subspecialises in gastrointestinal medical oncology) who gave evidence that it was not likely that the plaintiff’s treatment, outcome or prognosis would have been any different if her pancreatic cancer had been diagnosed in April 2018 rather than in November 2018.
The decision of the Supreme Court
The court reiterated the principle enunciated by the High Court decision of Rogers v Whitaker1 that the relevant standard of reasonable care and skill required of a medical practitioner is to be determined by reference to the skill of a person who specialises in the treatment of the kind being rendered to the plaintiff. In Rogers v Whitaker, that was an ophthalmic surgeon specializing in corneal and anterior segment surgery. In this case, it was doctors with specialisation in investigation of gastroenterological conditions and surgical treatment of gastroenterological cancers.
The court also confirmed that since the High Court decision in Tabet v Gett2 the common law does not permit an action for recovery for damage which is characterised as the loss of a chance of a better outcome. The plaintiff must prove, on the balance of probabilities:
- But for one or more of the alleged negligent acts or omissions, she would have undergone her surgery earlier than November 2018; and
- Had she undergone surgery at that earlier time, she probably would have avoided the injuries particularised in the pleadings.
The court found that neither Professor Morris nor Professor Fox were experienced in the care of patients up to the date of diagnosis of cancer. On that basis, the court was not satisfied that Professor Fox and Professor Morris had the relevant expertise to give evidence as to what reasonable doctors in the position of the defendant would have done in light of the results of the plaintiff’s CT scans up to 26 April 2018. The plaintiff failed to adduce the evidence required to establish breach of duty.
The court also rejected the evidence of Professor Fox and Professor Morris in regards to causation, preferring the evidence of Dr Burge whose expertise was ‘directly relevant to the issues of prognosis and life expectancy’ to be determined by the court. There was also criticism of the relevance and accuracy of studies upon which the plaintiff’s experts relied in forming their opinions.
The court accepted Dr Burge’s evidence that even if the plaintiff’s pancreatic cancer had been diagnosed and treated earlier in 2018 it was not likely that she would have avoided adjuvant chemotherapy, because chemotherapy is routinely used after surgery for pancreatic adenocarcinoma, regardless of stage and it was not likely that her prognosis, life expectancy or risk of recurrence would have been affected.
Implications for you
The issues of breach and causation in the context of medical negligence claims can be highly complex. The role of expert evidence is vitally important this context. Care should be taken to ensure that both the expert who is providing evidence and the foundations/basis for their opinion are relevant, reliable and robust.
1 HCA 58
2 HCA 12