FEDERAL COURT OF AUSTRALIA PROFESSIONAL NEGLIGENCE - appeal by general medical practitioner against finding of professional negligence - whether breach of standard of care - patient attending practitioner complaining of particular gynaecological problem - whether practitioner under a duty to enquire about possible unrelated condition of possibility of carcinoma. Cook v Cook (1986) 162 CLR 376 Rogers v Whitaker (1992) 175 CLR 479 ANNA KOZIOL v LOUISE ANASSON No AG 4 of 1997 Davies, Higgins & Finn JJ 18 August 1997 Canberra IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No AG 4 of 1997 DISTRICT REGISTRY ) ) GENERAL DIVISION ) On appeal from the Supreme Court of the Australian Capital Territory No SC 580 of 1993 BETWEEN: ANNA KOZIOL Applicant AND: LOUISE ANASSON Respondent Coram: Davies, Higgins & Finn JJ. Date: 18 August 1997 Place: Canberra MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by the trial Judge be set aside and, in lieu thereof, it will be ordered that the application to the Court be dismissed with costs. 3. The cross-appeal be dismissed. 4. The respondent pay the costs of the appeal and of the cross-appeal. NOTE:Settlement and entry of orders is dealt with in Order 36 of the FederalCourt Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) ) No AG 4 of 1997 DISTRICT REGISTRY ) ) GENERAL DIVISION ) On appeal from the Supreme Court of the Australian Capital Territory No SC 580 of 1993 BETWEEN: ANNA KOZIOL Applicant AND: LOUISE ANASSON Respondent Coram: Davies, Higgins & Finn JJ. Date: 18 August 1997 Place: Canberra REASONS FOR JUDGMENT The Court: This is an appeal from a judgment of a judge of the Court in which the trial Judge held a general medical practitioner to be guilty of professional negligence. In March 1987, Mrs Anasson, whose regular general medical practitioners were the Scullin Medical Centre, and whose age was 26, attended on Dr Anna Koziol, who was a single practitioner carrying on practice at the Phillip Health Centre, Woden. Mrs Anasson complained of certain symptoms. Dr Koziol diagnosed the condition of post-pill amenorrhoea and advised Mrs Anasson that her problems, including her failure to become pregnant, should resolve as time passed. Mrs Anasson had given up the use of contraceptive pills early in 1987. Dr Koziol advised Mrs Anasson that, if her problems did not resolve within 2 months, she should return. Mrs Anasson did return in early June 1987. Dr Koziol referred Mrs Anasson to a Dr L. Welberry respecting one aspect of her problems and to a gynaecologist, Dr F.A. Hosking, for investigation of her pregnancy and related problems. On 4 September 1987, Dr Hosking gave Mrs Anasson a full examination including the taking of a Pap smear, as a gynaecologist was expected to do. That Pap smear, when tested, disclosed the existence of a pre-cancerous lesion, a carcinoma in situ. By the time this report had been received, Mrs Anasson had found that she was pregnant. The surgeon treating the carcinoma in situ, Dr J. Murray, then performed an hysterectomy, although the lesion was relatively small. After the operation, the prognosis was very good from a malignancy point of view and Mrs Anasson did not require chemotherapy or radiotherapy. The trial Judge held that Dr Koziol had been negligent in not recommending or taking a Pap smear at the first consultation in March 1987. His Honour held that, if a Pap smear had been taken in March 1987, the problem would have been discovered before Mrs Anasson became pregnant. His Honour awarded $30,000 damages for the emotional distress which resulted from the termination of the pregnancy and gave judgment in favour of Mrs Anasson for $30,000 with costs. The post-pill amenorrhoea and the pre-cancerous lesion were not related conditions. the trial Judge said:- "I do not accept that the symptoms that the plaintiff described to the defendant on 20 March 1987 were indicative of cervical cancer and I accept that the diagnosis of post pill amenorrhoea was an accurate one, consistent with the subsequent findings on colposcopy." The pre-cancerous lesion was not related to any symptom of which Mrs Anasson had been aware or to any symptom evident to Dr Koziol. The finding of negligence was made on the following basis:- "Although I am not satisfied that the defendant should have realised that what the plaintiff told her indicated that the plaintiff was at particular risk of cervical cancer, it should have disclosed to the defendant that the plaintiff's symptoms were of a gynaecological nature and that the simple diagnosis of post pill amenorrhoea may not have been adequate. It would have been an easy matter and not very time-consuming to ask just a few more questions about the gynaecological history. Once that were done, it would have opened up the plaintiff's long history of gynaecological problems, and once that also were done, it would not have been reasonable to omit to ask about a Pap smear. If the defendant had by appropriate questioning learned that the plaintiff had not had a Pap smear for some two years, it would not have been reasonable for the defendant to omit to advise that it was time for another one. This was not a case of a woman presenting with a sore throat or a cut finger who would have been affronted by the suggestion of a vaginal examination. In fact, by the time she was referred to Dr Hosking, the gynaecologist in September 1987, a full gynaecologist examination was what the plaintiff was asking for. In other words, I think that from what the plaintiff told her, the defendant should have been on notice that the plaintiff's problems might not have been as simple as post pill amenorrhoea, and a few more questions on the defendant's part would have then put the defendant on further notice that a full gynaecological history was required and that a recommendation for a Pap smear was advisable. In this respect I conclude that the defendant failed to reach the standards appropriate to the ordinary and reasonable general practitioner in Canberra in 1987." The term "gynaecological" is a wide term denoting diseases peculiar to women. The case for Mrs Anasson was put on several bases. The first was that Mrs Anasson had asked Dr Koziol for a check-up which, had it been performed, would have involved an examination and the taking of a Pap smear. The trial Judge rejected this allegation and there has been no appeal against the finding. The second ground put forward was that it was good practice for medical practitioners, when consulted by women concerning gynaecological matters, to ensure, if practicable, that a Pap smear was taken regularly, every one or two years. The trial Judge did not make a finding of negligence on this ground. Although the Medical Journal of Australia in 1985 had recommended an annual Pap smear for all women who had been sexually active, the recommendation specified women presenting for a health check. It was not until 1991 that a more general recommendation was made in Department of Health guidelines. Moreover, one of the medical practitioners who gave evidence on behalf of Dr Koziol, Dr Gerard Wain, a gynaecologist, had been particularly active in promoting the general practice of taking regular Pap smears from women patients. Dr Wain was director of the New South Wales Cervical Screening Program and necessarily had had a great deal of experience with screening and with screening rates. Dr Wain gave evidence that the formal part of the program to establish regular Pap smear screening commenced in about 1989 and that the first major step in the program was the issue of the policy statement in 1991. Dr Wain gave evidence that, in 1987, it would have been unusual for any general medical practitioner to assume responsibility for reminder systems or for specific prompting to a patient to have a Pap smear and said that, in 1987, it was uncommon for general practitioners to undertake opportunistic screening. The evidence given by the other doctors did not contradict this evidence of Dr Wain, although one gains the impression from the other witnesses that it was somewhat overstated. The evidence on the whole did not go further than to show that, in 1987, the wisdom of regular Pap smears for women was becoming recognised. The two gynaecologists who gave evidence, Dr Wain and Professor A.J. Crandon, regularly did Pap smears for they were involved in the general check-up of their women patients. While some general medical practitioners such as Dr J.B. Gray and Dr A.J. McBride, who both gave evidence, made it a practice to recommend regular Pap smears to women patients, it was not general practice in the profession for opportunistic Pap smears to be taken. No doubt one of the reasons was, as Dr Wain said, that many women found the procedure to be invasive. Dr Koziol, herself, was aware of the benefits of Pap smears and did her own Pap smears whenever she considered it appropriate to do so. The trial Judge found that opportunistic Pap smears were not commonly taken by general practitioners in 1987. The trial Judge said:- "In 1987 all general practitioners knew that women who were sexually active were at risk of cervical cancer and that the risk tended to be at its peak between the ages of 40 and 50 years. All general practitioners knew that a Pap test was a useful method for preliminary testing for cervical cancer and that regular Pap tests every 18 months to two years were an appropriate way for a woman to guard against the risk. However, in 1987 it was by no means a universal practice among general practitioners in Australia to advise women patients as a matter of routine that they should undergo regular Pap tests. ... Opportunistic Pap smears were not commonly practised by general practitioners in 1987 and they raise issues of public health and health funding to which I will return in a moment." In this light, his Honour was plainly correct in rejecting the claim for negligence based upon the information which had been imparted by Mrs Anasson to Dr Koziol or upon the growing practice of taking annual Pap smears. A final way in which the matter was put was accepted by the trial Judge. It depended principally upon the evidence of Dr J.B. Gray, a general medical practitioner. Dr Gray said that it was his custom, in his family practice, to take a full history from a patient presenting for the first time and that, if one looked at Mrs Anasson's history, there was a lot to indicate that she was very likely to get cancer at an early age. Dr Gray gave this evidence:- "I would have taken a very full history, which I do normally with anybody if I've never seen them before." However, Dr Gray conceded that he was speaking only of his own practice and that the practices of other doctors differed. He agreed that the extent of the history taken was a matter for the judgment of the general practitioner at the time. As well as putting the proposition that he, himself, would have taken a very full history which he normally did with a patient he had not seen before, Dr Gray went on to criticise the history actually taken by Dr Koziol. Dr Gray said, inter alia:- "I would think [the doctor] couldn't very well offer an opinion to her - to the girl herself, unless you'd found out everything that had been wrong with her in the past. You've got somebody who comes to you with amenorrhoea, sore nipples, nausea, and she's got a negative - negative urine pregnancy test. Now to me, if that comes up it could be caused by a lot of things. It could be caused by thyroid problems; it could be caused by anaemia; it could be caused by any one or a number of pelvic infections. I mean, the possibilities for somebody like that is quite large. ... Now, if somebody like this came in, I would - and found she wasn't pregnant and she had those other things, I would start looking elsewhere for a problem. You see for one thing, amenorrhoea and sore nipples could be due to pituitary tumours. ... Yes, I think referring the patient on was the ideal thing to do. I wonder why she didn't do it in the first place." On the second element of his thesis, Dr Gray said:- "Now, if a proper history had been taken, then there's an awful lot to indicate that this girl was in fact very likely to get cancer at an early age. ... ... I cannot get past this fact that there was so much information in that girl's last, you know, past history, to indicate that she was a candidate for early carcinoma if she was going to get carcinoma. And that would have, you know, sort of a little light should be flashing." Professor A.J. Crandon, whose specialty was gynaecological oncology, said in his written report that a full history should have been taken. However, in his cross-examination, he said that, as a gynaecological oncologist, he could not comment on what was the usual practice of general practitioners. Nor, in his cross-examination, did he criticise Dr Koziol for concentrating upon the specific problem presented. Professor Crandon gave this evidence:- "If, on the other hand, a patient presented with a specific problem as opposed to a general - for a general check up, you may not - you would not criticise a doctor necessarily for addressing that specific problem in the first instance, would you?---Not necessarily. ... In that circumstance, doctor, waiting two months or so for the referral to the gynaecologist would not suggest that there was any necessity to offer the Pap smear at that first consultation, would it?---I would accept that. Because in the context of a screening test, waiting for that period of two months or so before referral was not a critical period of time?---Correct." Professor Crandon's evidence did not support Dr Gray's evidence of there being "flashing lights" in Mrs Anasson's past history, assuming a full history had been taken. Professor Crandon gave this evidence:- "Is there anything in that history that would have alerted a medical practitioner, a general medical practitioner in 1987 to the likelihood that this particular patient was at particular risk of cervical cancer? --- I believe that there are some issues there that suggest that the patient's risk of cervical cancer is maybe increased. Such things as early pregnancies and genital tract infections which we know are associated with an increased incidence of cervical cancer. --- Early pregnancies and genital tract infections. --- By virtue of the fact that they indicate that the patient is sexually active at a reasonably early age." (emphasis added) Professor Crandon agreed that, in the history taken by Dr Koziol, there was no sign or symptom of cervical cancer and that the practice of regular screening was adopted to pick up cancer in asymptomatic individuals. Dr Wain and Dr McBride did not support Dr Gray's thesis. Dr Wain said that the national policy now was to screen all sexually active women from age 18 onwards. Of the matters raised in Mrs Anasson's past history, Dr Wain said:- "They are very common in most women and cervical cancer is in fact very rare in this age group so there is a huge population of women with those sorts of problems who are not at any particular risk. Being a woman and having a cervix is a risk factor for cervical cancer." Dr Wain said that a Pap smear was intended to pick up pre-cancerous lesions. These appear at average age of 30 to 35 whilst the average for cancer is 45 to 50. Dr McBride, a general medical practitioner, said that her practice was to take a full history over up to three visits. Dr McBride gave the following evidence, inter alia:- "... a person is a whole body so over three visits you like to find out a lot about all of them but it's very hard to be so didactic in one 20 minute consultation. ... As I said before within three visits I would have ascertained when the Pap smear was done. I may not have taken as full and complete a history, as we are taught in medical school at the first visit in an apparently healthy young woman. ... to offer a full and complete medical examination on the first visit would need an hour and we don't have that in general practice." Dr McBride also did not see any "flashing lights" in Mrs Anasson's full history. She said:- "I have never seen anyone under 30 in my 19 years of medicine with cancer of the cervix so from my non-expert but average GP opinion I would go through a history with the patient and I would organise that either there and then or at some later date that a full investigation go on if she hadn't had tests previously. And that need not occur on the dot because from reading the notes and from personal opinion which grows as one gets older, then it's something that I can't see any risk of carcinoma." Moreover, Dr Gray's evidence that thehistory taken by Dr Koziol was inadequate to deal with Mrs Anasson's problem finds no support in the facts. In time, Mrs Anasson's problems resolved, as Dr Koziol thought they would. Dr Hosking found no abnormality on her examination and gave no treatment. Dr Koziol was correct in her diagnosis. The carcinoma in situ was an unrelated condition which was not evident, even upon examination, and was only disclosed by the Pap smear. Thus, Dr Wain gave this evidence:- "I think the overwhelming likelihood is that this situation was post-pill amenorrhoea and it's not a life threatening condition. It doesn't require any investigations. It's usually self limited. It usually gets better. I think the assessment by the general practitioner in this case was almost certainly correct. In fact the patient got pregnant very quickly after, so her diagnosis was absolutely correct." Similarly, Dr McBride said, inter alia:- "In my education, I believe that if a woman has had six months of amenorrhoea without any - you know, without sudden weight loss or any other extenuating circumstances, that after six months that's when normal investigations would occur." In her written report, Dr McBride said:- "Some consultations are longer than others and both Patient and General Practitioner know that all but the urgent matters can be followed through at subsequent appointments. The First Defendant allowed for this to occur. The Plaintiff did not present with a problem that could in any way be construed as serious. ... The Plaintiff did not present with anything that sounded like a cervical problem which would necessitate examination and investigation." The evidence as a whole, therefore, did not support Dr Gray's thesis. There was, in any event, a flaw in its logic. Mrs Anasson was asymptomatic so far as carcinoma was concerned. Therefore a Pap smear, if it were to be taken, would have been taken in accordance with screening practice, that is, having regard to the length of time which had passed since the last Pap smear had been taken. It was not necessary to take a full history from the patient to determine that. The evidence does not show that opportunistic Pap smears were or are taken by reference to the history of the patient, save that the patient should be sexually active and over 18 years of age. Dr Gray himself said that he had always done Pap smears regularly every 12 months. Elements of the principle of negligence are the existence of a duty of care and a breach of that duty by a failure to meet the standard of care which is required in the circumstances. The standard of care was enunciated in Rogers v Whitaker (1992) 175 CLR 479 where Mason CJ, Brennan, Dawson, Toohey & McHugh JJ said at 487:- "In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill (Cook v. Cook (1986), 162 C.L.R. 376, at pp.383-384; Papatonakis v. Australian Telecommunications Commission (1985), 156 C.L.R. 7, at p.36; Weber v. Land Agents Board (1986), 40 S.A.S.R. 312, at p.316; Lewis v. Tressider Andrews Associates Pty Ltd [1987] 2 Qd R. 533, at p.542). But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade (See e.g., Florida Hotels Pty Ltd v. Mayo (1965), 113 C.L.R. 588, at pp.593, 601)." At 489, their Honours said:- "The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors (F. v. R. (1983), 33 S.A.S.R., at p.191). Examination of the nature of a doctor-patient relationship compels this conclusion." In Cook v Cook (1986) 162 CLR 376, Mason, Wilson, Deane & Dawson JJ said at 383-4:- "Assuming that the requirement of proximity remains satisfied, the standard of care, while remaining an objective one, must be adjusted to the exigencies of the relevant relationship in that it will be the degree of care and skill reasonably to be expected of the hypothetical reasonable person of the law of negligence projected into that more precisely confined category of case." In the present case, Dr Koziol owed a duty of care to her patient. When Mrs Anasson presented at Dr Koziol's surgery in March 1987, she complained of a particular problem. Mrs Anasson complained about her recent lack of periods and other symptoms of a gynaecological nature. Dr Koziol made a provisional diagnosis of post-pill amenorrhoea and advised Mrs Anasson that, if she had no further periods in the next two months, she should return with a view to obtaining a referral to a specialist gynaecologist. The diagnosis made by Dr Koziol was correct and the advice which she gave was appropriate. There was no breach of a standard of care in relation to the problem for which Mrs Anasson sought treatment. That would not conclude the matter had it been recognised in the medical profession in 1987 that, when a woman presented with a gynaecological problem, a general practitioner should make an enquiry as to when a Pap smear had last been taken, and, if a smear had not been taken within the last 12 months or so, should recommend that one be obtained. In 1987, that was not the case. Whether it is presently the situation is not a matter which the Court is called upon to determine. The trial Judge accepted that opportunistic Pap smears were not commonly practised by general practitioners in 1987. Therefore, it could not be held that Dr Koziol breached the standard of care by failing to deal with the totally unrelated matter, of which no symptoms were evident, the possibility of a carcinoma in situ. For these reasons, we cannot accept the finding of the trial Judge, which is set out above. His Honour held that "the simple diagnosis of post pill amenorrhoea may not have been adequate." It was adequate so far as Mrs Anasson's symptoms were concerned. No advice other than that which Dr Koziol gave was required for those symptoms. Dr Koziol dealt appropriately with the symptoms and she was under no duty, in early 1987, to enquire about the possible unrelated condition, the possibility of carcinoma. In rejecting the claim for negligence, we deal solely with the circumstance where the patient attended a general medical practitioner for the first time and did so for advice and treatment in relation to a specific condition. We have not considered what might have been the duty of Mrs Anasson's regular general practitioners, the Scullin Medical Centre. Those practitioners had dealt with Mrs Anasson for many years and knew her history. Because they were Mrs Anasson's medical practitioners, their duty of care necessarily had a somewhat wider ambit than the duty imposed upon a medical practitioner who saw a patient for the first time and in respect of a specific complaint. We need not deal with other matters raised in the appeal including the question of causation. On these matters we agree with the findings of the trial Judge. A cross-appeal has raised the point that the trial Judge did not provide for pre-judgment interest. If this were a matter of oversight, it could and should have been corrected by application to the trial Judge. The question of interest does not now arise. It is therefore unnecessary to consider the issue. The appeal will be allowed. The orders made by the trial Judge will be set aside and, in lieu thereof, it will be ordered that the application to the Court be dismissed with costs. The cross-appeal will be dismissed. The respondent should pay the costs of the appeal and of the cross-appeal. I certify that this page and the preceding 13 pages are a true copy of the reasons for judgment of the Court. Associate: Date: 18 August 1997 Counsel for the applicant: P.R. Garling SC Solicitors for the applicant: Tress Cocks & Maddox Counsel for the respondent: K.J. Crispin QC Solicitors for the respondent: Clayton Utz Date of hearing: 10 April 1997 Date of judgment: 18 August 1997