Mr Ross Peterkin brought a professional negligence claim against Dr Abran Tadros, a general practitioner. Mr Ross Peterkin has been diagnosed with incurable colorectal cancer and his life expectancy was limited.
He believes that Dr Tadros’ alleged failure to properly investigate his symptoms when he presented at the medical centre on 23 August 2022, resulted in the foreshortened life expectancy. Therefore, Mr Peterkin sought damages for personal injury.
Key issues in dispute
- The applicable standard of care considering what the Plaintiff told the Defendant at the consultation
- What the Defendant made of that information
- What the Defendant ought to have made of that information
- Results of the Defendants’ examination of the Plaintiff
Dr Tadros was not Mr Peterkin’s usual GP. At the time of the consult, Mr Peterkin had undetected colorectal cancer. Mr Peterkin told Dr Tadros that it was painful to defecate and that after doing so, he would experience minimal bright rectal bleeding. Dr Tadros, upon visual inspection of Mr Peterkin’s anus, diagnosed him with haemorrhoids. No digital examination was conducted. Dr Tadros prescribed a suppository and provided an educational pamphlet concerning haemorrhoid symptoms and treatment.
However, when Mr Peterkin returned just over a year later in October 2023, to the same practice but this time seeing his usual GP, he was referred to a specialist. It was not until March 2024 that he saw the specialist and then 2 months later underwent a colonoscopy which confirmed a rectal mass. On 28 May 2024, after an MRI was conducted, he was officially diagnosed with mid-rectal adenocarcinoma. Subsequently he required intensive chemotherapy followed by long-course radiotherapy and further chemotherapy.
The Courts findings
BREACH OF DUTY
The trial judge observed that, where the requirements of s 5O of the CLA are satisfied, that provision displaces the need for the separate analysis otherwise required under ss 5B and 5C. This is because there is no justification for assessing a professional’s conduct against two separate standards (South-Western Sydney Local Health District v Gould (2018)). However, where the preconditions in s 5O are not established, the assessment proceeds under ss 5B and 5C.
Section 5B Civil Liability Act 2002
What occurred during the consultation between the Plaintiff and Defendant on 23 August 2022?
One of the expert GPs, Dr Chambers, gave evidence that she would have asked detailed and open-ended questions, including “how long has this gone on?”, “have you had anything like this before?”, and additional questions regarding the duration of the urgency (s 5B(1)(c)). Upon receiving that information, the Plaintiff should have been referred to a specialist.
The defendant ought to have taken such precautions. The subsequent failure to probe the Plaintiff’s symptoms and thereafter refer him to a specialist created a foreseeable and not insignificant risk of harm (s 5B(1)(a), (b)). Therefore, a breach of duty is established.
FACTUAL CAUSATION
Can the Plaintiff establish that he would have acted on a referral issued on 23 August 2022? If so, by what date would the Plaintiff have seen a specialist and by what date would the Plaintiff have undergone a colonoscopy?
Section 5D(1)(a) involves the “but for” test, meaning that the Plaintiff must establish, on the balance of probabilities, that the harm would not have occurred “but for” the Defendant’s negligence (Wallace v Kam (2013)).
Yet since the enactment of s 5D(3)(b) of the CLA, a plaintiff’s hypothetical evidence of what they would have done if the allegedly negligent person had not been negligent has been rendered largely inadmissible.
MEDICAL CAUSATION
What type of tumor was detected at the colonoscopy in May 2024 vs what would have been detected had a colonoscopy been performed on the alternative colonoscopy date?
Cancer was present and invasive but not locally advanced at the August 2022 consultation as per Associate Professor Pendlebury’s evidence. This was accepted by the trial judge.
Upon weighing different scenarios, the trial judge concluded there would have been an earlier diagnosis by February 2023 or shortly thereafter. Had that occurred, both experts agreed that the cancer would have been stage 3.
What was the consequence of any delay?
Ultimately, the Defendant’s negligent failure to investigate, take history and refer the Plaintiff to a specialist in the August 2022 appointment caused the reduction in life expectancy. Specifically, it was reduced by 4.75 years from February 2032 to about mid-2027.
CONTRIBUTORY NEGLIGENCE
The Plaintiff failed to take reasonable care of his own health given the following:
- Failed to see a doctor in the months before the August 2022 Consultation
- Failed to have regard to the pamphlet for haemorrhoids provided by the defendant
- Failed to mention his gradually worsening symptoms at the consultations between August 2022 and October 2023
- Delaying making an appointment with Dr Hamilton for 137 days after the October 2023 Consultation
Therefore, a deduction was made for contributory negligence.
Outcome
The defendant was liable to the Plaintiff in negligence and the Plaintiff was found to be contributorily negligent. Both parties were ordered to make written submissions on damages, apportionment and costs.
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