Background

The plaintiff, Ms Sandra Austen, was an Indigenous woman in her early fifties. She was in poor mental health, with limited education, and had been on a disability pension for many years.

In September 2017, she was diagnosed with non-Hodgkin’s lymphoma. Her cancer became terminal, and she died after the hearing of the appeal and before judgment was delivered.

The defendant, Dr Tuan Quoc Tran, was a general practitioner with over 20 years’ experience at the time, practising at Wattle Street Medical Practice in Canberra (the Practice).

The plaintiff alleged that the defendant failed to diagnose her non-Hodgkin’s lymphoma, leading to a delay in diagnosis and worsening of her condition.

While the plaintiff saw the defendant and other medical practitioners a number of times between October 2016 to September 2017 for various ailments, her case at trial only related to two consultations: on 17 October 2016 and 15 July 2017.

On appeal, the plaintiff’s case was restricted to the first consultation, on 17 October 2016 (the Consultation), when she presented to the defendant in relation to left leg pain.

At first instance, McWilliam AJ (as her Honour then was) was unpersuaded that negligence was established and entered judgment for the defendant with costs.

On 29 November 2023, the Court of Appeal (McCallum CJ, Wheelahan J and Crowe AJ) dismissed the plaintiff’s appeal.

The Consultation

The Consultation was the plaintiff’s first presentation to the Practice, and the defendant, since 2012, when she had seen the defendant for her mental health.[1]

The Consultation lasted no more than 15 minutes.[2]

The plaintiff complained of left leg pain, and this was her first presentation in relation to that pain.

The defendant conducted an examination, ordered blood tests based on differential diagnoses of muscular injury or possible iron deficiency, and prescribed Anaprox, an anti-inflammatory typically prescribed for moderate pain relief.

At trial, several factual elements of the Consultation were disputed, being: the plaintiff’s reported longevity of the pain; the reported severity of the pain and the defendant’s perception of that severity; and advice provided to the plaintiff to return for review. These issues were resolved as follows.

Longevity: Her Honour found that the plaintiff told the defendant that she had been experiencing some degree of pain in her left leg for months, and that what brought her to see the defendant was an escalation of the pain in her left leg, and she had felt that worsening for more than a week.[3]

Severity: Her Honour found that the plaintiff reported the pain as being 8/10 in severity, and the defendant formed the view that the plaintiff was in moderate pain (although there was a degree of reconstruction in the defendant’s evidence as to his impression of the plaintiff’s pain).[4]

Advice to return: There was conflicting evidence from the plaintiff and defendant as to whether the defendant advised the plaintiff to return.[5] Her Honour found that if any mention was made of a return visit, the words were more in the nature of a throw-away line at the end of the consultation, rather than formal advice about appropriate treatment strategy.[6]

Subsequent Developments

The results of the blood tests were received the next day and indicated a normal range for iron levels. The plaintiff attended the Practice in person, and the receptionist told her that her test results were “all good”. No one at the Practice requested she make a further appointment. The defendant did not subsequently call the plaintiff or refer her for any further investigations.[7]

The plaintiff saw various practitioners at the Practice and elsewhere between October 2016 and May 2017, and ultimately saw the defendant on 15 July 2017 (the second consultation on which the plaintiff’s case at trial was run). After a series of investigations, the plaintiff’s diagnosis was eventually confirmed in September 2017.

Liability at First Instance

With respect to the Consultation, the plaintiff alleged that the defendant was negligent in his investigation of the plaintiff’s symptoms, the lack of follow up, his examination and recording of the examination and history.

The main point of contention was that the defendant should have arranged some kind of follow-up, so that the plaintiff would not be left without a diagnosis for her pain. The plaintiff relied on evidence given by Associate Professor Clyne, the plaintiff’s expert general practitioner, that it was inappropriate practice to send a patient away undiagnosed after test results, and that a patient who had reported 8/10 pain needed to be seen.[8]

The plaintiff articulated the relevant risk of harm to be the risk of a delay in diagnosis and subsequent worsening of non-Hodgkin’s lymphoma.[9] There was no dispute that the risk of harm was foreseeable.[10]

The issue was whether, in view of the mandatory considerations of ss 43 and 44 of the Civil Law (Wrongs) Act 2002 (ACT), the defendant’s actions were unreasonable.

Her Honour identified a number of aspects of the Consultation which did not accord with “best practice” but was ultimately unpersuaded that the defendant breached his duty of care.

Her Honour found that:

• While the defendant’s examination, viewed in isolation, was not as thorough as it could have been, and while the defendant could have done more to investigate the plaintiff’s complaints,
  • The examination was sufficient to inform the defendant that whatever was causing the pain did not require immediate hospitalisation or treatment;[11] and
  • It was not unreasonable for the defendant to adopt a staggered approach to working out the cause of the plaintiff’s pain, particularly in circumstances where there had been no trauma requiring x-rays, many instances of leg pain subside without treatment, and ordering an MRI would have been a “leap”.[12]
• The defendant did not follow best practice with respect to his advice as to the purpose of the blood tests and the use of time as a diagnostic tool,[13] and there were other steps available to the defendant to use as a “safety net” to ensure the plaintiff returned for review.[14]

Despite the above, her Honour concluded that the approach adopted by the defendant was not unreasonable, and the defendant was entitled to rely on seeing whether the pain dissipated over time with pain relief, and to assume the plaintiff would re-present if her pain persisted, even if not proactively spelling it out for the plaintiff.

While there was conflicting expert evidence as to the propriety of the approach adopted by the defendant, her Honour correctly identified that the proper question to be addressed was whether the approach taken by the defendant was reasonable, as opposed to whether best practice would have dictated a different approach.

Her Honour’s decision on liability arose from a thorough and holistic analysis of the particular circumstances faced by the defendant at the time of the Consultation, which were that:

• It was the plaintiff’s first presentation to the defendant in relation to this leg pain, and it was essentially his first diagnostic opportunity. It was not a situation where he had seen the plaintiff on a previous occasion and knew pain relief had been ineffective or was still required
• The evidence did not indicate that the defendant should have contemplated non-Hodgkin’s lymphoma at the Consultation, even with a more thorough examination, noting its rare incidence [15]
• It was common ground that the vast majority of musculoskeletal pain will resolve on its own
• The plaintiff had been moved to present to the defendant because of her pain

Her Honour also found that the defendant knew, or ought to have known, of the plaintiff’s particular vulnerabilities arising from socio-economic factors, culture and education, but even knowing those factors, the approach adopted by the defendant was not unreasonable.

The Appeal

On appeal, the plaintiff contended that McWilliam AJ ought to have found that the defendant breached his duty of care at the Consultation. Several submissions were advanced in support of that contention, but the most relevant (for our purposes) were:

• Her Honour’s findings in relation to the defendant’s examination, history and advice, and in particular, her Honour’s findings that there were other steps available to the defendant to use as a “safety net” to ensure the plaintiff returned for review, should have resulted in a finding of breach of duty.[16]
• Her Honour failed consider the probability that the relevant harm would happen if precautions were not taken, and the likely seriousness of the harm, were it to materialise.

Factual Findings

The central finding in issue on appeal was whether the defendant breached his duty of care by relying on the plaintiff to re-present if her pain had not resolved.

The plaintiff placed significant emphasis on the trial judge’s findings that the defendant failed to follow best practice in certain aspects of the Consultation.[17] The plaintiff submitted that, in the circumstances of the plaintiff’s history of pain and her personal characteristics:

• The defendant was required to ensure that there was some follow-up; and
• Where normal blood test results were returned which did not exclude malignancy as one of the possible causes of pain, it was not adequate to rely upon someone of the plaintiff’s circumstances to return for a follow-up consultation.[18]

These submissions were not accepted by the Court of Appeal.

In deciding the question, McWilliam AJ took account of:

• The particular circumstances of the Consultation (including that the plaintiff presented because of a worsening of her pain)
• Expert evidence from Dr Marles, a general practitioner called by the defendant, that it would be reasonable to except the patient to see whether they needed to come back if their pain was not resolving or if it was getting worse;[21] and;
• Evidence from the defendant that if patients are not better, they come back, and absent something sinister, it was not the defendant’s practice to call a patient who had presented with a symptom to ask whether the patient was better.[22]

The Court of Appeal concluded that no error in the trial judge’s approach was established.

Probability and Seriousness of the Harm

The plaintiff contended that the trial judge failed to consider the probability that the relevant harm would happen if precautions were not taken and the seriousness of the harm.

It is trite that identification of the relevant risk of harm is an essential ingredient in an action for negligence. As her Honour recognised, only once the risk of harm is known can one then assess a reasonable response to that risk.

At trial, the risk of harm was only identified by counsel for the plaintiff in very general terms; the risk was cancer or lymphoma, and the risk that it would grow.[23]

The plaintiff submitted that the trial judge ought to have made a finding of breach of duty, in circumstances where the risk of harm was serious, foreseeability was not in dispute, and a follow-up would not have been overly burdensome on the defendant.[24]

The Court of Appeal did not accept these submissions. While seriousness and foreseeability of the risk of harm were not in dispute, it was the probability of the risk of harm that led the trial judge to conclude that a differential diagnosis that did not include non-Hodgkin’s lymphoma was reasonable. In that regard, Her Honour heard evidence:

• From Associate Professor Clyne, that non-Hodgkin’s lymphoma was a rare explanation for symptoms initially presenting as leg or back pain and that he had seen about three cases in his 45 years of practice as a general practitioner; and
• From Dr Marles, that non-Hodgkin’s lymphoma had an incidence of 15 out of 100,000 women in Australia, constituting an uncommon presentation in clinical practice.
The Court of Appeal reiterated that the inquiry as to whether reasonable care has been taken is prospective. It is an error to reason backwards by taking a serious risk of injury, looking at what steps would have prevented its materialisation, and extrapolating negligence where those steps were not taken.[25] The correct inquiry is whether, in the circumstances at the time, the actions taken were reasonable.

The Court of Appeal considered that it was open to the trial judge to reason that:

• It was common ground that the vast majority of musculoskeletal pain would resolve on its own
• A reasonable general practitioner was entitled to assume that a patient in the plaintiff’s position would come back of their own volition if the pain persisted at a level above that of a minor irritation; and
• It was not unreasonable for the defendant to have first relied in some way on seeing whether the pain dissipated over time with pain relief to manage the symptom in the meantime, and the plaintiff then re-presenting – either at the Practice or elsewhere in the system if her pain had not resolved.

Comments

The Court of Appeal’s decision is a welcome reminder of the importance of adopting a prospective approach and avoiding hindsight reasoning. It is particularly significant for the following reasons.

Firstly, the use of time as a diagnostic tool is reasonable, particularly where a patient first attends with non-specific pain in the absence of trauma. It would be impossible to expect practitioners to predict every possible cause of pain at that first consultation. To do so would impose unrealistic expectations on practitioners and would promote defensive medicine.

Secondly, the distinction drawn by the Court of Appeal (and McWilliam AJ at first instance) between “best practice” and reasonable care is important, and, entirely consistent with Rogers v Whitaker.

As the Court of Appeal noted, it is the judge that decides the question of whether, in the circumstances, a practitioner has exercised reasonable care. Ever since Rogers v Whitaker, that question is informed by expert evidence, but it is up to the judge to weigh and evaluate that evidence.

Whilst “best practice” should be aimed for, it may not be achievable on every occasion, particularly in a busy practice. McWilliam AJ heard evidence that the defendant was the principal doctor in the Practice, which had 3,000-4,000 active patients. He personally saw 150-200 patients per week, and, on a particularly busy day, he would see 40 or 45 patients, averaging about 10-15 minutes per consultation.[26] These circumstances clearly informed the defendant’s approach to follow-up, and as her Honour noted at [130]:

In my view, when regard is had to the volume of patients passing through the Practice and requiring blood tests, the burden of a follow up phone call for those who had received normal blood test results which could be communicated by a receptionist may be seen in a different light.

Much like the administrative law proposition that the reasons of administrative decision-makers should not be subject to “over-zealous” scrutiny upon judicial review,[27] it is important that over-zealous scrutiny of a practitioner’s conduct does not detract from the central question, which is whether the practitioner exercised reasonable care in the circumstances.

Lastly, whether a practitioner’s duty of care required them to follow up a patient will depend on the circumstances, including the characteristics of the patient.[28] However, it is important to recognise that patients are entitled to exercise autonomy in their medical treatment. Practitioners are also entitled to assume that patients will re-present if their symptoms continue. To ignore that autonomy would risk venturing into medical paternalism, a concept which Rogers v Whitaker sought to dethrone.

Further information / assistance regarding the issues raised in this article is available from the authors, Lara Mynott, Partner, James Page, Lawyer, or your usual contact at Moray & Agnew.