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Medical negligence – Diagnostic failures

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See Peden v Ferguson 15/5/12 [2012] NSWSC 492 where alleged that D GP failed “to take appropriate action following a consultation on 18 September 2007 which would have led to an earlier diagnosis of sacral chordoma, a terminal cancer” @1. The only issue was whether P complained of altered sensation and feelings of electric shock in the September consultation. D’s notes, which did not record such a complaint, preferred over P’s recollections and diary notes that he made such a complaint. Claim failed.

See Paul v Cooke 25/7/12 [2012] NSWSC 840 where Brereton J concluded that “the circumstance that Dr Cooke’s duty of care did not extend to responsibility for a procedure that may have been occasioned by his diagnosis (or lack thereof) is not of itself reason to deny that he is liable for damage done in the course of such a procedure; once breach of duty is established, the question is one of causation. Although the inquiry as to causation is influenced by the scope of the relevant viagra sans ordonnance duty, this is more appropriately considered under the ‘scope of liability’ element of causation, which is a different notion from ‘scope of duty’. Chappel v Hart dictates that the correct comparison in this case is between having the operation on the occasion on which it took place, and having it on an occasion in 2003. That comparison results in the conclusion that, on the probabilities, had Dr Cooke diagnosed the aneurysm in 2003, Mrs Paul would have had it treated by clipping, and the aneurysm would have been obliterated without rupturing, and Mrs Paul would not have suffered the stroke and the consequent injuries and disabilities that now afflict her. Factual causation is therefore established. The duty to use reasonable care in and about diagnosis serves to protect the patient from harm from an ongoing or deteriorating condition, by enabling its timely treatment. The harm that diagnosis was intended to avert – spontaneous rupture – did not eventuate. The harm suffered by Mrs Paul was not harm of the kind from which the relevant rule of responsibility was intended to protect her. While spontaneous rupture (with its sequelae) was plainly a foreseeable risk of failing to make a diagnosis, intra-procedural rupture was a foreseeable risk of treatment associated with making a diagnosis, regardless of when the diagnosis was made – not with failing to make a diagnosis. The irrelevance of the delayed diagnosis is demonstrated by the circumstance that had the delay before diagnosis been even longer, so that Mrs Paul came to surgery on a later occasion, there would on the probabilities have been no rupture and harm. Intra-procedural rupture was not within the scope of the risk created by Dr Cooke’s negligence. The fact that a particular risk of the treatment option selected on advice and for good reason by Mrs Paul in 2006, that was less likely in the alternative option that she would have undergone in 2003, materialised and caused harm is not fairly or logically to be seen as attributable in any but the barest ‘but for’ sense to the delayed diagnosis. The factors that influence the ‘scope of liability’ considerations in failure to warn cases are absent: in particular, that the risk that called the duty into existence materialised and was one to which the patient was exposed – although she was not prepared to accept it – because of the negligent failure to warn. The policy arguments raised in favour of imposing liability amount to no more than that proven breaches of duty should attract DEV-401 a remedy, even if no more than the barest factual causation can be established. The scope of liability does not extend to the harm suffered by Mrs Paul” @126-128. Appeal dismissed in Paul v Cooke 19/9/13 [2013] NSWCA 311. However, appeal court did not agree with trial judge’s C2090-610 handling of s5I. See précis at NSW – Civil Liability Act, s5I.