QUT Torts Moot Competition. August Judgement in the Supreme Court of Queensland (Moot Divison)

Transcription

1 QUT Torts Moot Competition August 2017 Judgement in the Supreme Court of Queensland (Moot Divison) Citation: Collins v de Valera et anor [2016] QSC 146M Extract of relevant parts of the judgement of Birchley J Background: [3] The salient facts regarding this case are as follows: Michaela Collins was born on 14th August She became unwell on 18 September On the evening of 29 September 2013, she was admitted to hospital. On 1 October 2013, a diagnosis was made of pneumococcal meningitis and multiple brain infarcts. Michaela Collins recovered, but she had sustained permanent damage to her brain; she has learning difficulties and is profoundly deaf. [4] The principal issue at trial concerned the medical care Michaela Collins received once admitted to St Kevin s Hospital. On 27 and 28 September, Michaela s mother, Ariadne Collins, contacted an out-of-hours GP service several times. Michaela was examined by a number of doctors. Nothing turns on the examinations conducted by the out-of-hours GP service, although they provide context of Michaela s admission to St Kevin s. [5] Michaela was transported by ambulance, on the advice of the GP who attended at the Collins residence on 28 September, to St Kevin s Hospital. Dr Alan de Valera was a Principal House Officer (PHO), who examined Michaela in the Accident and Emergency (A&E) Department of St Kevin s Hospital early in the morning of 29 September. The Board is responsible for the operation of St Kevin s Hospital, located in Logan City. [8] It was the Ariadne Collins s case that Dr de Valera was negligent in that he: i) failed to take an adequate history; and ii) failed to conduct an adequate examination. [9] It was further claimed that St Kevin s Hospital was also negligent insofar as information which might have resulted in referral to a paediatric team, in which

2 case the pneumococcal meningitis would have been detected and treated with antibiotics, such that no damage would have been suffered by Michaela. [10] The plaintiff argued that had Dr de Valera performed either of these tasks to the standard of a competent PHO, he would have been bound to refer Michaela to the paediatric team at the Hospital. Instead he discharged her. [11] That is to say, had Michaela been referred to the paediatric team, she would in all probability have been given antibiotics by 9am on 29th September at the very latest. The antibiotics would have prevented the spread of the infection and Michaela would not have suffered any injury. The issue at trial therefore is a breach of duty by the first defendant, Dr de Valera, and the liability of the Board (the second defendant). Presentation at hospital and the examination by Dr de Valera [18] As noted above, Michaela was taken by ambulance to St Kevin s Hospital. The observations of the paramedics were that Michaela s temperature [was]up to 40, she is rolling her eyes and her breathing is a little bit erratic. Ariadne Collins also gave evidence that she had told the paramedics that Michaela was lethargic. It is unclear whether Michaela suffered a convulsion in a precise or technical sense of the word, but a combination of Ms Collins s evidence about the events leading to the last call to the out-of-hours GP and the calling of an ambulance indicate that Michaela s condition would have been of some concern, and warranted taking her to the hospital for a full clinical evaluation. [19] Dr de Valera gave uncontradicted evidence that he was not aware that Michaela had been transported to the hospital by ambulance, nor had he seen the written notes made by the paramedics, as the documentation which would have made this information available to Dr de Valera were not included in the materials passed to Dr de Valera. In both cases, this was a significant departure from the ordinary protocols associated with admission - a fact which was not disputed by the Second Defendant. [25] Dr de Valera s examination of Michaela took place at 5:32 am on 29 September 2013, some 23 minutes after her arrival and admission. Prior to a physical examination, Dr de Valera took a history from Ariadne Collins. That process took about 7 minutes, and recorded elevated temperature, and no

3 vomiting or diarrhoea. No mention is made in the notes of the history to the eye-rolling observed by the paramedics either on the basis of what Ariadne told him during his taking of Michaela s history, or the paramedic s notes themselves. [26] At no stage did Dr de Valera inquire of Ariadne Collins why she had felt it necessary to bring Michaela to A&E in the early hours of the morning. [27] Dr de Valera then spent another 10 minutes conducting a physical examination, at the end of which, he concluded that Michaela was suffering an upper-respiratory tract infection (URTI). In his oral evidence, he observed that this was a common ailment for young children at that time of year. [28] Michaela was discharged, with advice that proprietary medicines available over the counter (such as Nurofen) should be used to control Michaela s elevated temperature, and that she be brought back to the hospital should she exhibit either sustained vomiting or diarrhoea. [29] In cross-examination, Dr de Valera was asked whether he would have referred Michaela to a paediatric team if he had been aware of the eye-rolling. He responded that he would not automatically make such a referral. I asked Dr de Valera whether the eye-rolling, in concert with an apparent fever, might have been a febrile convulsion, to which Dr de Valera responded that had she known about the eye-rolling, she would have considered that a febrile convulsion was a strong possibility, and that, in those circumstances, he would have referred Michaela to a paediatric team. [30] Expert evidence was adduced on behalf of the defendants from Dr Valerie Pearse, a specialist paediatrician, that in the absence of any reports of lethargy and/or eye-rolling, the indicia that Michaela was suffering from something more serious than an URTI would have been subtle, and in her own, rather colourful terminology, would have required an experienced set of eyeballs to detect, and it would not be indicative of any failure to meet acceptable standards of medical practice if a medical practitioner who was not a specialist in pediatrics failed to identify the more serious condition from which Michaela was, as it later became evident, suffering. [31] Conversely, expert evidence led on behalf of the plaintiff by Dr Vlad Scott, an acknowledged expert in Accident and Emergency practice, was that a competent A&E doctor would understand that parental opinion and observation is often a potent aid in diagnosis: parental concerns, and the subjective reasons for it, are significant guides to what about a child s behaviour or symptoms have caused them to bring a child to A&E, rather than wit and visit a GP some time later. Dr Scott expressed some surprise that Dr de Valera had not initiated inquiries aimed at eliciting what, beyond an apparent URTI, had cause Michaela to present her daughter to A&E in the

4 early hours of the morning. Had he done so, the missing links in the diagnostic chain might have been filled in, and the subsequent damage avoided. Findings [68] A medical practitioner operating in the A&E environment would ideally have an armamentarium of diagnosis and inquisitive resources, part intuitive and part knowledge-based, which enable her or him to penetrate deeply into any given situation. That, however, is a counsel of perfection. Dr de Valera, as a PHO, was in only the fourth year of his post-registration career, not yet having embarked on a training program for the purposes of either General Practice or as a Specialist. He was, in any meaningful sense of the words, relatively inexperienced. [69] Although, no doubt, a medical practitioner faced with the situation presented by Michaela, might have opened lines of inquiry with Michaela s mother which elicited the information about the eye-rolling and lethargy which could have altered their clinical view about referral to a paediatric team, I cannot say that it was substandard practice to fail to make those inquiries, or to take a more complete history which could have raised the possibility of a more serious condition than URTI. That is particularly so in the case of an inexperienced practitioner. I accept that Dr Scott, perhaps, has a different view, but as provided for by s22(4) of the Civil Liability Act 2003 (Qld), it is not necessary that peer opinion as to what constitutes an acceptable standard be universal. [69] For that reason, the claim against Dr de Valera must fail. He was not a specialist paediatrician, and while he did not detect (or was not aware of) factors which might have been apparent to a more experienced clinician or which might have become apparent through a more rigorous approach to determining the history, the lack of information under which he laboured, and his relative inexperience, were such that his response in the circumstances was not a failure to meet the requisite standard of care for the purposes of s22 of the Civil Liability Act 2003 (Qld). [70] I have adverted above (at [19]) that there was a failure on the part of the Hospital (and perhaps other persons involved in the overall management of Michaela s presentation at the Hospital) to observe protocols associated with the transmission of relevant medical information between the paramedics,

5 employees of the Hospital involved in the admission process and the medical practitioners who eventually see patients in A&E. [71] Even accepting that as a question of fact, that is a far cry from establishing that such a breach of the standard imposed on the Hospital, if breach it were, could be shown to be causally related to the damage suffered by Michaela. Even in the face of the failure in communication of the information regarding eye-rolling and lethargy, it cannot reasonably said to be more probable than not that such a failure was causative of the damage, given that there were other opportunities for that information to be brought to the attention of Dr de Valera. Accordingly, I find that no case exists against the Hospital. Grounds of appeal 1: That the learned trial judge applied the wrong test in determining whether Dr de Valera failed to meet the requisite standard to discharge his duty of care in the diagnosis of Michaela Collins s condition. 2: That the technical professional skills of taking a patient history are core competencies for a registered medical practitioner, and it was not open to the trial judge to find that a failure to open lines of inquiry during the taking of a patient s history was any less a breach of the requisite standard simply by virtue of the lack of experience of the defendant. 3: That given the uncontradicted evidence that there was a breach of established protocols regarding the transmission of relevant medical information during the admission process, it was not open to the trial judge to find that the failure of the Hospital s systems to relay information regarding other symptoms of which Dr de Valera was not aware (eye-rolling and lethargy) did not contribute significantly to the medical outcome for Michaela. Relevant law: The law relevant to the determination of the appeal is the common law of Australia as currently applied in the jurisdiction of Queensland (ie as amended by the Civil Liability Act 2003 (Qld)).