Australia: Medical negligence: South Eastern Sydney Area Health Service & Anor v King

Last Updated: 24 November 2011
Article by Robert Samut

The Facts

Monique King, the plaintiff, was aged 13 when she had a highly malignant tumour partially removed from her spinal canal.

The plaintiff was subsequently referred for cancer treatment to Professor O'Gorman-Hughes, a specialist paediatric haematologist and oncologist at the Prince of Wales Children's Hospital (the hospital). Professor O'Gorman-Hughes established a treatment plan for the plaintiff's cancer which involved radiotherapy and whole body chemotherapy, together with chemotherapy to the spinal canal. This treatment was based substantially on a protocol established by a US based study group. The protocol, IRS-II, had been developed for a particular type of malignant tumour presenting in the head or neck in children. The protocol provided specifically for the amount of radiotherapy to be administered, and the dosage and frequency of the two forms of chemotherapy. The protocol was based on a study which had been carried out between 1978 and 1984. Although it was only published as a final report in 1993, Professor O'Gorman-Hughes knew of the protocol through literature available in 1987. In March 1989, the treatment commenced and was carried out over a number of months. By July 1989, the plaintiff demonstrated symptoms of damage to her spinal cord, which ultimately lead to quadriplegia.

The Allegations

The plaintiff alleged that both the hospital and Professor O'Gorman-Hughes were negligent in the administration of the treatment. The plaintiff also alleged that there was a failure to warn by Professor O'Gorman-Hughes of the risks of the treatment.

Key to the plaintiff's claim was that, prior to the treatment commencing, the protocol upon which it was based had been amended. In mid 1987 research was published which disclosed that there had been complications in a number of patients who had been treated in accordance with the protocol. While the cause of those complications was unclear, it was said to be the result of combining the three forms of treatment (radiotherapy, whole body chemotherapy, and chemotherapy to the spinal canal) and it was recommended that the chemotherapy to the spinal canal be reduced or discontinued in specified circumstances.

Professor O'Gorman-Hughes died prior to the trial, but it was uncontentious that his position was that he was unaware of the amendment to the protocol.

The Trial Decision

The trial judge found that while a medical practitioner's duty of care does encompass an obligation to keep informed of changes to treatment methods, it was reasonable for Professor O'Gorman-Hughes to rely upon relevant changes being conveyed to him through the hospital's paediatric oncology group. Professor O'Gorman-Hughes was found to have discharged his duty to keep informed by relying upon the hospital's system of dissemination of information, which included the circulation of articles, oncology department team meetings, and discussions of treatments methods which were being used.

It was also found at trial that while there had been a failure to fully inform the plaintiff's parents about the risks of paraplegia involved with the treatment, even if fully informed, the plaintiff's parents would have elected to proceed with the treatment, given the grave risk to her life had the cancer not been treated.

At trial, Professor O'Gorman-Hughes escaped a finding of negligence.

However, the trial judge found that there had been a breach of duty of care by Dr White, a member of the oncology department team, in failing to pass on literature he had received from an overseas body which identified the relevant change in the protocol.

It was also held that this failure was causative of the loss as, had Professor O'Gorman-Hughes been made aware of the relevant change, he would have sought further advice and, as a result, he would have altered the plaintiff's treatment regime.

The trial judge found in favour of the plaintiff, as against the hospital, based on the hospital's vicarious liability for Dr White. Damages had been agreed by the parties during the course of the trial at $7 million.

The Appeal

The hospital contended that Dr White did not owe a duty to circulate the literature in question, because it had been provided to him 'on a personal basis' from an overseas practitioner after he had informally expressed an interest in the particular oncology group responsible for the literature, and there was no obligation for Dr White to circulate all information within his possession.

The Court of Appeal found that it was an artificial distinction to say that the information came to Dr White on a personal basis, because the information was directly relevant to the work Dr White undertook in the paediatric oncology department of the hospital. That, coupled with the collaborative operation of the paediatric oncology department, its regular sessions to share information with other departments, the department's own weekly meetings and a specific knowledge that Professor O'Gorman-Hughes had based the plaintiff's treatment plan on the particular protocol, justified a finding that there was a duty of care on the part of Dr White to disseminate the material in question, which was breached by his failure to do so.

The hospital also challenged the finding that had Professor O'Gorman-Hughes been aware of the changes to the protocol, he would have changed the plaintiff's treatment. The Court of Appeal found that while it may be true that overseas collaboration regarding cancer treatment was rare, the present situation involved an initial treatment plan which was based on an overseas study. It was therefore appropriate to conclude that, had Professor O'Gorman-Hughes been aware of the changes to the protocol, he would have further investigated them and would have made changes to the plaintiff's treatment. While some questions were raised as to the status of the research material available and whether it was material which would be widely accepted, it was accepted that even if the changes to the protocol were not final, it was appropriate to conclude that any changes would have been investigated and taken into account. It was therefore correct to find that the amendments would have been adopted and Professor O'Gorman-Hughes would not have administered the treatment to the plaintiff which lead to her quadriplegia.

The Plaintiff's Cross Appeal

The plaintiff contended on appeal that it was wrong for the trial judge to have found that Professor O'Gorman-Hughes was not negligent by failing to undertake for himself appropriate enquiries to keep his knowledge up to date.

The Court of Appeal found that there was no absolute duty to keep informed, but rather the duty to keep informed is dictated by the nature of the treatment being implemented and the risks involved in such treatment. The Court of Appeal specifically emphasised the 'radical, experimental, and controversial' nature of the treatment being administered by Professor O'Gorman-Hughes, as well as the fact that it was a treatment method which had not been implemented before (in the same way) at the hospital and the risk of neurological complications due to the direct injections of the drugs into the spinal canal.

In those circumstances, the Court of Appeal found that Professor O'Gorman-Hughes did owe a duty to take reasonable care to keep informed of developments relevant to the treatment he prescribed. However, it was found that the discharge of this duty did not require Professor O'Gorman-Hughes to personally undertake searches. This was so in the context of him practicing at a leading hospital, with team members to whom such a task could be delegated. That said, delegation of such a duty could not be discharged by mere reliance on other members of the team, but rather required Professor O'Gorman-Hughes to ensure that relevant searches were undertaken for him.

It was accepted that, had the duty of care been discharged, relevant information regarding the amendment would have come to Professor O'Gorman-Hughes attention and the treatment method would have been appropriately adjusted. In this context, it was found by the Court of Appeal that by failing to ensure that appropriate searches were undertaken on his behalf, Professor O'Gorman-Hughes acted in breach of his duty of care.

In relation to the failure to warn, the plaintiff contended that had her parents been appropriately warned, they would not have given permission for the treatment to proceed. The plaintiff did not succeed with this ground of appeal. The Court of Appeal made reference to evidence of the plaintiff's mother in cross examination at trial, wherein the plaintiff's mother agreed that if faced with the choice of a spreading cancer which would lead to her daughter's death, or the treatment involving a risk of paraplegia, they would have chosen to try the treatment, despite the risks.

Accordingly, on the basis of the Court of Appeal's findings that both Dr White and Professor O'Groman-Hughes breached their respective duties of care, and that Professor O'Groman-Hughes would have altered the plaintiff's treatment as per the changes to the protocol, the Court of Appeal upheld the award of $7 million in favour of the plaintiff.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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