Quantock v Australian Capital Territory Health and Community Care Service [2003] ACTSC 98 (28 November 2003)

Last Updated: 22 January 2004

TRACY QUANTOCK v AUSTRALIAN CAPITAL TERRITORY HEALTH AND COMMUNITY CARE SERVICE

[2003] ACTSC 98 (28 November 2003)

NEGLIGENCE - failure to diagnose complication of injury - delay in surgery - causation

DAMAGES- delay in surgery - loss of chance of more favourable outcome - approach to assessment

Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Malec v J C Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638

No SC 614 of 2001

Coram: Master Harper

Supreme Court of the ACT

Date: 28 November 2003

IN THE SUPREME COURT OF THE )

) No SC 614 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TRACY QUANTOCK

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY HEALTH AND COMMUNITY CARE SERVICE

Defendant

ORDER

Coram: Master Harper

Date: 28 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $50,000.00.

1. This is an action for damages arising from a failure in diagnosis. The defendant was at the relevant time responsible for the conduct of the Canberra Hospital.

2. The plaintiff, Tracy Dianne Quantock, was born on 6 September 1963. On 26 April 1998, she fell while ice-skating, taking her weight on her outstretched left hand. She was taken to the casualty department at the Canberra Hospital in considerable pain, with a swollen wrist. An x-ray revealed a comminuted fracture of the distal radial metadiaphysis, with approximately 1 cm impaction of the fracture fragment and 30% dorsal angulation. There was also a minimally displaced fracture of the styloid process of the ulna. The fracture of the radius was reduced by means of a Bier's block, after which a further x-ray showed that the fracture had been reduced to almost anatomical alignment. The plaintiff was sent home with instructions to attend the Hospital fracture clinic a week later. She remained in considerable pain which did not settle as would normally be expected following immobilisation after such a fracture. She was given painkillers to alleviate this.

3. On 6 May, the plaintiff attended the fracture clinic, where she saw Dr Nicholas Smith, an orthopaedic registrar. He removed the backslab cast which had been applied on the day of the fall and replaced it with a full lower arm fibreglass cast. Further x-rays were taken, which confirmed that the radial fracture was in satisfactory position. She went back again on 13 May when another x-ray was taken and reported upon in the same terms. On that same day, she attended her general practitioner, Dr Tracey Baker at Chapman. She said she was experiencing excessive pain in her hand. She wanted another opinion as to whether there might have been more to the injury. Dr Baker checked the plaster, which she thought was satisfactory.

4. Dr Smith had told the plaintiff on 13 May to come back in three weeks to have the cast removed, but by 20 May she was in agony, and she attended the fracture clinic on that date. The cast was removed, and Dr Smith examined her. She was x-rayed. The report stated that the bony alignment was satisfactory but noted that a true lateral had not been provided. A new cast was applied. She was seen again at the fracture clinic on 2 June, when the cast was removed and clinical union of both fractures was noted. She was referred for physiotherapy. She continued with physiotherapy and anti-inflammatory medication for another month or so, but the pain did not improve. During this period she attended the fracture clinic on two further occasions.

5. On 24 June 1998, she saw her general practitioner, Dr Baker, again. Dr Baker noted that she still had marked limitation of movement in the left forearm, particularly of supination. Dr Baker thought that this was unusual and sent her to Dr Chris Roberts, orthopaedic surgeon.

6. The plaintiff obtained an appointment to see Dr Roberts on 23 July. He noted a slight bluish discolouration of the left hand, which raised the possibility in his mind of a mild reflex sympathetic dystrophy. He looked at the x-rays, and detected, in addition to the fractures of the radius and the ulna, some widening of the distal radio-ulnar joint. He described this as a very unusual injury, and an explanation for the loss of supination. He did not think that physiotherapy would improve the situation, because the distal ulna was out of place. He recommended surgery by way of osteotomy, in the form of shortening of the ulna to match the radius length, followed by an open reduction of the distal radio-ulnar joint.

7. Because the plaintiff had no private health insurance, she was admitted as a public hospital patient, and the surgery took place on 19 August 1998. The plaintiff was left with no supination and with adhesions around the distal radio-ulnar joint.

8. Expert evidence in the proceedings was given by two highly qualified and experienced Melbourne specialists, Mr Kingsley Mills on behalf of the plaintiff and Mr Hunter Fry on behalf of the defendant. Mr Mills practised for many years until 1998 as an orthopaedic surgeon, being at different times head of the Orthopaedic Unit at the Royal Melbourne Hospital and Chief of Orthopaedics at the Epworth Hospital. His heaviest involvement has been in major joint replacement surgery, mainly for hips and knees, but he also has a particular interest in the arm, including forearm and wrist fractures. His evidence was that whilst the fracture of the distal radius is probably the most common fracture in the human body, an accompanying dislocation of the distal radio-ulnar joint is extremely uncommon. An orthopaedic registrar at a public hospital should have realised from the patient's complaints, physical examination and x-rays on 20 May 1998 that the distal radio-ulnar joint was dislocated. An experienced orthopaedic surgeon would probably have picked it up earlier, but this would be an unreasonable expectation of someone with the more limited experience of a registrar.

9. Mr Mills thought that if the dislocation had been detected and treated appropriately on initial presentation, complete recovery could have been expected. This was no longer possible by the time the radial fracture united, which would have been about six weeks after injury. He said that the earlier the diagnosis was made and the situation corrected, the better the outcome. If the plaintiff had been operated on in a timely fashion, assuming the correct diagnosis on 20 May 1998, he thought that it would have been too late to expect complete recovery, but a better recovery would have been expected than was ultimately achieved.

10. Mr Fry is a plastic surgeon with experience over a similar period, including appointments in the plastic surgery unit at the Royal Melbourne Hospital. He has no orthopaedic qualifications but has considerable experience with hand injuries. He has never operated to correct a dislocation of the distal radio-ulnar joint, and had never seen such a dislocation as a complication of a Colles' fracture previously. He conceded that he would defer to Mr Mills in relation to his experience with surgery on that joint.

11. Mr Fry's opinion was that if surgery had been carried out soon after 20 May, it was almost certain that a better result would have been achieved, but he did not think anybody could say how much better. All that could be said is that the plaintiff would probably have achieved a greater range of motion.

12. Mr Fry agreed with Mr Mills that a registrar could not reasonably have been expected to have diagnosed the dislocation from the early x-rays, but the films of 20 May certainly suggested dislocation and should have been picked up. He would have expected a registrar to have referred the patient to a consultant at that time, and regarded what happened as a system failure.

13. I have been informed by counsel that the plaintiff was examined at the request of the solicitor for the defendant by Dr Leon Le Leu on 16 October 2001, and that no report by Dr Le Leu was served on the plaintiff's solicitors or relied upon in the action. I infer that Dr Le Leu prepared a report which would not have assisted the defendant's case.

14. I am satisfied on the expert evidence that the Canberra Hospital through its medical staff failed on 20 May 1998 to detect the fact that the plaintiff was suffering from symptoms which could not be explained on the basis of a simple Colles' fracture of the left wrist, and failed to give adequate consideration to the possibility of a dislocation of the distal radio-ulnar joint. It is not to be expected that the registrar would himself have diagnosed this, but it is reasonable to expect that the registrar would have referred the plaintiff to an orthopaedic surgeon of the experience and standing of Dr Roberts, for review. That is to say, the registrar should have taken the action which the general practitioner, Dr Baker, took on 24 June 1998, five weeks later. Dr Baker referred the plaintiff to Dr Roberts, who was able to see her on 23 July 1998, and to arrange for her admission for surgery as a public patient on 19 August 1998. There is no suggestion in the expert evidence that the registrar on 20 May should have treated the matter with any more urgency than did Dr Baker on 24 June, nor is there any reason to suppose that Dr Roberts, or another orthopaedic surgeon, would have seen the plaintiff any more quickly, or operated on her any more quickly, than occurred. In other words, I think it likely that in the absence of negligence on the part of the defendant, the plaintiff would have come to surgery some five weeks earlier than she did.

15. The plaintiff in 1998 was 34 years of age, and divorced with an eight-year old son. She was a casual bookkeeper with Leader Real Estate in Canberra. It was a very busy job at the end of the month but reasonably quiet at the beginning of the month. The plaintiff's earnings had fluctuated somewhat: copies of her tax returns and assessments were in evidence. Her income for relevant financial years was as follows:

Year Gross Tax Net

1996-1997 $45,365 $13,000 $32,365

1997-1998 $18,711 $2,660 $16,051

1998-1999 $23,243 $2,630 $20,613

1999-2000 $25,741 $3,670 $22,071

2000-2001 $22,434 $2,300 $20,134

2001-2002 $21,992 $1,900 $20,092

16. The plaintiff had worked for about five years with the Australian Sports Commission, prior to commencing with Leader Real Estate in March 1997. She went back to work immediately following the accident and had no extended periods off work, with the exception of about five weeks at the time of her surgery in August 1998. Otherwise she took time off as she needed to for physiotherapy and medical attendances. In November 1999 she left Leader Real Estate and started a new job at the Canberra Times, a better job with a higher and more predictable income, though generally similar duties. In May 2000, she cut back from full-time work to 20 hours a week, with a consequent reduction in income, after discussing the matter with her general practitioner. Her main reason was that she was having trouble coping with her pain, which was affecting her life at home as well as at work. At the end of November 2002, she left the Canberra Times and began part-time employment at Isa Street Carpets, working 24 hours a week. She finds this a much better job, offering far greater flexibility in arranging her tasks.

17. The plaintiff's evidence is that she has required considerable assistance since the injury with housework and gardening, particularly with looking after her son, who was eight at the time of her injury and would now be thirteen. The plaintiff's mother gave evidence of the tasks she and her husband performed for the plaintiff, amounting to two or three hours a day initially, reducing over time to two or three hours a week, for perhaps a year, and continuing to the present at the rate of about an hour a week.

18. Counsel for the plaintiff submitted that if the dislocation of the radio-ulnar joint had been diagnosed by 20 May 1998, surgery would have been performed in a timely fashion, leading to a result which would have avoided any loss of earnings for the plaintiff, past or future, and any need for assistance of the kind provided by her parents. Counsel for the defendant submits that by the time of the defendant's negligence, the plaintiff had already suffered a significant injury which was likely to have left her permanently impaired whatever happened, so that much of the impairment of earning capacity and need for assistance would have followed in any event.

19. I think that the reality probably lies somewhere between these two extremes. The dislocation should have been detected no later than 20 May. It was detected five weeks later. If it had been detected five weeks earlier, I think the most likely outcome is that the plaintiff would have undergone surgery five weeks earlier than she did, which would have been about 18 June 1998 - about seven or eight weeks after the original injury.

20. Mr Fry, who gave evidence for the defendant, noted that surgery was carried out about four months after the injury. He said that if it had been carried out on or close to 20 May, being about four weeks after the injury and before the fracture had united, he would have expected a better recovery, though it was impossible to say in retrospect how much more movement might have been obtained. Mr Mills, the expert qualified on behalf of the plaintiff, expressed the view that if the dislocation had been recognised and treated appropriately at the time of trauma, the expectation would have been a restoration of supination movement of the forearm to virtually normal. The general proposition is that the earlier the diagnosis is made and the situation corrected, the better the outcome. Obviously, he said, there is some cutoff point where the bones are stabilised in an abnormal position, after which recovery is almost out of the question. The probable time after which it could not have been corrected would have been about six weeks from injury.

21. Neither expert was specifically asked to comment on the likely outcome had surgery been performed five weeks earlier than it was, which I find is the time it was most likely to have been performed in the absence of the negligence for which the defendant was responsible. I am fortified in reaching this finding by the fact that neither Dr Baker on 24 June 1994 nor Dr Roberts on 23 July 1998 regarded the situation as one of urgency. It has not been suggested by the expert witnesses that a registrar in an ideal world would on 20 May 1998 have realised that the plaintiff's condition required urgent surgery or that an orthopaedic surgeon in Dr Roberts' position would have formed that view on initial consultation.

22. It follows from the factual findings that by reason of the defendant's negligence, the plaintiff lost the opportunity of a better outcome following surgery, which might have been achieved had the surgery been performed five weeks earlier. The extent to which the outcome might have been better is a matter for conjecture. Different approaches are urged upon me by counsel for each of the parties, as to the determination of whether, in these circumstances, the plaintiff has suffered any damage, and if so, how her damages should be assessed.

23. The primary submission on behalf of the defendant is that the case should be approached as one where the plaintiff has lost a chance of a better result. The suggested approach is to assess the plaintiff's damages, in effect, as though she suffered an injury on the date of the defendant's negligence, which caused all of her disabilities and losses after that date, and to discount the figure arrived at by a very significant amount, the suggested factor being 70%.

24. Counsel for the plaintiff submits that this is not a loss-of-a-chance case but rather a simple case of negligence, the negligence being the failure to diagnose the dislocation. Counsel for the plaintiff submits that the plaintiff is entitled to damages for all of the loss caused by the negligent act (really a negligent omission) of 20 May 1998. Reliance was placed on passages from the judgment of Gaudron J in Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269. Her Honour said at 278 (para 30 and following):

In cases involving the failure to diagnose or treat a pre-existing condition, there is no philosophical or logical difficulty in viewing the loss sustained as the loss of a chance to undergo treatment which may have prevented some or all of the injuries or disabilities sustained. Indeed, in such cases, philosophical or logical analysis would lead to the conclusion that characterisation of the loss as the loss of a chance is strictly correct. It would also lead to the conclusion that the all-or-nothing approach involved in allowing damages for the actual harm suffered on the basis that it was more likely than not that the harm would have been prevented by proper treatment is, at best, rough justice.

It has been suggested that to allow compensation for the loss of chance would alleviate problems associated with proof of causation. There is, in my view, a tendency to exaggerate the difficulties associated with proof of causation, even in medical negligence cases. For the purposes of the allocation of legal responsibility, `if a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring' (Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at 244-245 per McHugh J) and in that situation, the trier of fact... is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event.

The notion that, in cases of failure to diagnose or treat an existing condition, the loss suffered by the plaintiff is the loss of chance, rather than the injury or physical disability that eventuates, is essentially different from the approach that is traditionally adopted. On the traditional approach, the plaintiff must establish on the balance of probabilities that the failure caused the injury or disability suffered, whereas the lost chance approach predicates that he or she must establish only that it resulted in the loss of a chance that was of some value.

25. Her Honour went on to reject the application of the loss-of-a-chance approach on the facts of the case.

26. Naxakis was an action by a schoolboy against a hospital and a surgeon for failure to diagnose an aneurysm. The plaintiff had been struck on the head by another boy. Following his admission to hospital, a subarachnoid haemorrhage was diagnosed. An angiogram would have disclosed the aneurysm, and the plaintiff's case was that this should have been ordered. The judge had taken the case away from the jury and directed a verdict for the defendants: an appeal to the Court of Appeal of the Supreme Court of Victoria had been dismissed. The High Court unanimously allowed the appeal, but none of the justices other than Gaudron J found it necessary to deal with the loss-of-a-chance issue and her Honour's observations were strictly obiter.

27. Counsel for the plaintiff also placed reliance upon passages from the decision of the High Court in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 and Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, but these were decision in actions where the negligence of the surgeon was in failing to warn the patient of risks which might (and in both cases did) eventuate following surgery, and are not directly on point in the present action.

28. It is unnecessary for me to resolve the impasse between these two approaches. I am satisfied on the balance of probabilities that if it had not been for the negligence of the defendant, the plaintiff would have achieved a better outcome from her surgery than she has. Equally, I am satisfied that by reason of the defendant's negligence she lost the chance of that better outcome. On either approach causation is established.

29. It does not, however, follow that all of the plaintiff's present disabilities and losses are a consequence of the defendant's negligence. By the time of the negligent omission, the plaintiff had already suffered a serious injury, which had at least three facets: the fracture of the radius, the fracture of the ulna and the dislocation of the radio-ulnar joint. The first two of these were correctly diagnosed and, as far as they went, correctly treated. The negligence was the failure to diagnose the dislocation and to treat it appropriately. Much of the disability from which the plaintiff still suffers is attributable to the initial injury. The effect of the defendant's negligence was simply to delay by five weeks the surgery aimed at correcting the dislocation. Even by five weeks earlier, I am satisfied that it was too late to achieve a perfect result.

30. Surgery five weeks earlier than it was performed can be described as an event which should have occurred but cannot now occur. The hypothetical consequences of earlier surgery are to be evaluated as explained by Brennan and Dawson JJ (at 639-640) and Deane, Gaudron and McHugh JJ (at 642-643) in Malec v J C Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638. The plaintiff has lost the chance of a better outcome from earlier surgery, and, I am satisfied, would more likely than not have achieved a better outcome, though she would have been left with some permanent pain and restriction of movement in the left wrist which would have reduced her working capacity and her ability to undertake many sporting and household activities. This sounds in general damages and also in damages for impairment of earning capacity, and an increased need for assistance with housework and gardening. In all of the circumstances a mathematical approach to the assessment of damages is inappropriate, and broad general figures are the best that can be achieved.

31. For general damages for pain and suffering and loss of enjoyment of life, it seems to me that an appropriate award is $20,000 apportioned equally between the past and the future. Interest should be allowed on the past component in the sum of $1,000.

32. For loss of earning capacity I award $5,000 for the past plus interest of $2,000 and $10,000 for the future. For the Griffiths v Kerkemeyer component, adopting the rate of $20 per hour agreed by counsel, I allow $5,000 for the past, plus interest of $2,000, and $5,000 for the future.

33. I am not satisfied the plaintiff has established that any of her treatment expenses would not have been incurred in any event, and I make no allowance for out-of-pocket expenses, past or future.

34. The total of the individual components is as follows:

General damages $20,000.00

Interest $1,000.00

Loss of earning capacity - past $5,000.00

Interest $2,000.00

Loss of earning capacity - future $10,000.00

Griffiths v Kerkemeyer - past $5,000.00

Interest $2,000.00

Griffiths v Kerkemeyer -future $5,000.00

$50,000.00

35. I am satisfied that the total amount is proportionate to the consequences suffered by the plaintiff as a result of the negligence of the defendant. There will be judgment for the plaintiff in the sum of $50,000.00. I will hear the parties as to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 28 November 2003

Counsel for the plaintiff Mr F J Purnell SC

Solicitor for the plaintiff Blumers

Counsel for the defendant Mr S H Pilkinton

Solicitor for the defendant ACT Government Solicitor

Date of hearing 2, 3 July 2003

Date of decision 28 November 2003