Mules v Ferguson

Delayed diagnosis of meningitis and the Peer Professional Defence

Informa MedicoLegal CongressSydney 25 February 2016

David Hirsch, Barrister

Selborne Chambers, Sydney

Mules v Ferguson [2015] QCA 5

• 11 day trial

• D successful at trial

• P successful on appeal (2-1)

• Leave to the High Court refused• No issues of principle

• P awarded more than $6.7 million

Delay in diagnosis and treatment, as this case sadly demonstrates, can have dreadful effects on morbidity and mortality, so that cryptococcal meningitis is a condition which is emphasised in clinical teaching for general practitioners and should be excluded by specialist referral when diagnosing and treating patients suffering from possible symptoms.

Margaret McMurdo P[8]

Some background…

• Crytococcal meningitis• Different to pneumococcal or meningococcal

• More prevalent in the tropics

• P was 43 years old at the time (2008)

• D was a general practitioner

• P suffered sensorineural hearing loss, cortical blindness, sensory loss, impaired balance and psychiatric injuries

Pleadings and issues

• Failure to diagnose meningitis• Failure to refer to a specialist for investigations

• Was P ill enough that she should have been referred?

• If investigations were done would meningitis have been diagnosed and treated earlier?

• If so would P’s injuries and disabilities have been avoided?

Core findings at trial…

• D breached her duty of care: she should have performed a physical examination and obtained a history of headaches

• Referral to a specialist would have led to earlier diagnosis and treatment

• Earlier treatment would have cured the meningitis

So why did P lose at trial?

• Physical examination would not have revealed neck stiffness of the kind seen in meningitis

• A history of headaches would have disclosed intermittent, not constant headaches of the kind seen in meningitis

• Physical examination and history of headaches would not have led to referral to a specialist

• P failed to prove causation

Furthermore…

• Even though D breached her duty of reasonable care, she was entitled to rely on s 22 of the Civil Liability Act 2003 (Qld)• Standard of Care for Professionals

• Which meant she was not negligent after all

• Which meant the finding of no causation was obiter dicta

September 2008…

• 5, 8 and 11 – P sees chiropractor for neck pain

• 12 – P sees D about neck pain - analgesics

• 12, 15 and 17 – P sees chiropractor – medical certificate

• 18 – P sees D – CT ordered

• 19 – P sees D - discussed CT – stronger analgesics – medical certificate

• 23 – P sees physiotherapist – traction and passive flexion

• 24 - P BIBA to Cairns Base Hospital – discharged home

• 25 – P sees D – urgent referral to Cairns Private Hospital

• 26 – Diagnosis and treatment of meningitis

The plaintiff said on 18 and 19 September

• Her symptoms increased immensely from 12 September

• Weakness in her leg

• Barely able to function at home

• Walking caused pain to neck and head

• Nausea and vomiting

• Walked arm in arm with her mother

• Could only get out of bed and go to the toilet

Chiropractor and physiotherapist

• Chiropractor on 17 September• Neck still sore – had headache

• Manipulations done, but no details

• Physiotherapist on 23 September• Neck stiff and sore on waking

• Distressed and protective of movement

• Just wasn’t moving her neck very much at all

• Traction and passive flexion – rotated head 90 degrees

• No unusual reaction to this

Expert evidence

• Test for meningism by touching chin to chest

• Unusual to be able to move the neck if there was meningism

• Meningitis headache is constant, not intermittent

What the judge found – 18, 19 September

• Continuing neck pain

• Reduced range of neck movement

• Sometimes headache connected with neck pain

• Sometimes facial flushing connected with neck pain

• Sometimes dizziness

• D should have done a physical examination

• D should have explored the history of headaches

The judge concluded

• Physical examination would not have revealed neck stiffness of meningitis• No-one gave evidence of P holding her head stiffly or without movement

• Experts said she would not have been able to move her head without pain

• Even if chin to chest test had been done it would not have elicited meningism

• A history of headaches would reveal only intermittent headache, not the constant headache of meningitis

Off to the Court of Appeal…

What Plaintiff had going for her

• She had cryptococcal meningitis

• In Cairns

• Getting worse

• Sought help and followed advice

• Complaints of sore neck and headaches

• Symptoms consistent with (even if not diagnostic of) meningism

What Defendant had going for her

• P had a history of cervical spine problems

• Initial chiropractic treatment for this

• CT consistent with cervical problems

• Symptoms could be due to cervical problems (except flushing)

• No fever, nausea, vomiting, weakness or photophobia

• P was exaggerating

• Chiropractor could move her neck on 17 September

• Physiotherapist could move her neck on 23 September

Court of Appeal (M McMurdo P, Boddice J)

• There was evidence of P holding her head stiffly or without movement

• Nobody did the chin to chest test

• Sore neck at the base of the skull was a ‘headache’ so between reported ‘intermittent headache’ and ‘base of skull soreness’ there was a constant ‘headache’

• P had cryptococcal meningitis so there must have been meningeal irritation on 18 and 19 September

Court of Appeal (M McMurdo P, Boddice J)

• If D had done a physical examination and obtained a history of the headaches as the trial judge found she should have, then…

• There would probably have been signs of meningism, so…

• D would have referred the plaintiff for further investigation, where…

• Meningitis would have been diagnosed and treated, and…

• P’s injuries would have been avoided.

But for the breach of duty Dr Ferguson…

…would have determined the appellant had restricted neck movement and headaches in a region consistent with the possibility of meningeal infection. Having regard to the evidence that this insidious disease cryptococcal meningitis, with its gravely serious consequences, is more common in the tropical north, such a conclusion ought to have resulted in the respondent referring the appellant for investigation either to a specialist or to her local hospital.

Per Boddice J at [189]

Court of Appeal (Applegarth J, dissenting)

• Trial judge’s finding that a physical examination would not have detected neck stiffness suggestive of meningitis was not erroneous• There is musculoskeletal ‘neck stiffness’ and meningitis ‘neck stiffness’

• Trial judge properly distinguished between them

• It was possible but not probable that a chin to chest test would have demonstrated neck stiffness of meningitis• P had the onus of proof that it would have

• If asked about the headache P would have said it was worse, but still intermittent and at the base of the skull• Not suggestive of meningitis

APPEAL ALLOWED

•Plaintiff is awarded $ 6,727,776.04

•Plus indemnity costs of the entire proceedings including the trial

Peer Professional Defence or Test of Negligence?

• QLD CLA s22 A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

• NSW CLA s5O A person practising a profession does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

Trial judge – section 22

• Two GP experts said that if D’s version of events on 18 and 19 September were accepted, many GPs would not have done a physical examination or explored the history of headache

• Judge found D had breached her duty of care – but since others would have done the same she was not negligent

• S 22 is used as a test of negligence

Court of Appeal (unanimously)

• S 22 not available because the facts as found were not exactly the same as the facts assumed by the expert GP experts who said others would have done as D did

• The GP experts made general statements like “Many GPs would have done the same” without explaining in detail why

• Careful analysis of the facts supports the conclusion that D should have done a physical examination and obtained a history of the headaches

• Trial judge was right to find breach of duty – s 22 did not change this

Court of Appeal (Boddice, J)

• Section 22 of the Act provides a defence to a breach of duty if the medical practitioner establishes he or she acted in a way which was widely accepted by peer professional opinion by a significant number of professionals in that field. That defence requires an identification of the particular conduct, and the group of peer opinion supporting that conduct as being widely accepted practice. [191]

• Focus is on what the doctor did and whether others in the same circumstances would do the same

• Footnote reference to NSWCA in McKenna v Hunter and New England LHD [2013] NSWCA 476

But in McKenna…

• S 5O defence says that if a doctor is found to have breached a duty, the doctor does not incur a liability in negligence if what was done was widely accepted in Australia as competent professional practice.

• The question is not whether other doctors would do what D has done…The question is whether what D did amounted to a practice.

• Unless it was a practice not to do physical examinations on patients with P’s history of neck pain, or a practice not to inquire about headaches, the breach of duty in failing to do so stands.

• S 5O defence does not apply

CONCLUSION

• There’s a lot to be said for settling medical negligence cases before trial

• Some day the High Court will tell us what the Peer Professional Defence really means