Reported Decision : [2001] NSWSC 69 [2001] ACL Rep 300 NSW 17 New South Wales Supreme Court CITATION : Alexander v Heise & Anor [2001] NSWSC 69 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20083/99 HEARING DATE(S) : 15, 16, 17, 18 August 2000 & 4 September 2000 JUDGMENT DATE : 23 February 2001 Christine Jeanette Marguerite Alexander (Plaintiff) PARTIES : Geoffrey Heise (First Defendant) Keren Heise (Second Defendant) JUDGMENT OF : Master Harrison Mr Paul Menzies QC (Plaintiff) COUNSEL : Mr GB Evans (Defendants) Mr David Hirsch Maurice Blackman Cashman SOLICITORS : (Plaintiff) Tress Cocks & Maddox (Defendants) CATCHWORDS : Separate determination of issues - duty of care and breach of duty of care - doctor's receptionist Compensation to Relatives Act 1897 LEGISLATION CITED : Supreme Court Rules - Part 31 r 2 National Health Sergice (General Medical Services) Regulations 1992 (UK) Roger v Whittaker (1992) Aust Torts Reports 81-189; (1992) 175 CLR 479; (1991) Aust Torts Reports 81-113; (1991) 23 NSWLR 600 Jones v Manchester Corporation [1952] 2 All ER 125 CASES CITED : Lowns & Anor v Woods & Ors (1996) Aust Torts Reports 81-376 BT v Oei [1999] NSWSC 1082 Perre v Apand Pty Ltd [1999] HCA 36 DECISION : See para 82 37 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 23 FEBRUARY 2001 20083/99 - CHRISTINE JEANETTE MARGUERITE ALEXANDER v GEOFFREY HEISE & ANOR JUDGMENT (Separate determination of issues; duty of care and breach of duty of care - doctor's receptionist) 1 MASTER: The plaintiff's claim is brought on her behalf and on behalf of her four children, David Alexander born 19 February 1977, Jonathan Alexander born 14 July 1982, Katherine Alexander born 27 January 1984 and Elizabeth Alexander born 18 February 1986 pursuant to the Compensation to Relatives Act 1897. The claim arises from the death of the plaintiff's husband, Edward Alexander on 22 March 1996. He died due to a cerebral haemorrhage. It is a claim for damages arising from alleged medical negligence. 2 The plaintiff alleges that Edward Alexander's death would have been prevented had he been examined by a general practitioner, Dr Heise. The first defendant is a registered medical practitioner. He is practising as a general practitioner at a medical surgery in Thornleigh. The second defendant, Keren Heise, acted as a receptionist in the first defendant's surgery. The first and second defendants are husband and wife. 3 On 4 February 2000 Abadee J ordered pursuant to Part 31 r 2 of the Supreme Court Rules (SCR) that two questions be decided separately. They are firstly whether the defendants, or either of them, were under a duty of care in the circumstances, and secondly, whether the defendants, or either of them, breached a duty of care, if in fact one did exist. 4 Between 4 and 10 March 1996, the plaintiff's husband was in good health. On 10 March 1996, the plaintiff found her husband unconscious at home on the bed. He was given mouth to mouth resuscitation and transported to Ryde hospital. From Ryde he was transferred to Concord hospital. Edward Alexander died 12 days later on 22 March 1996. The plaintiff's husband had suffered a grade V berry aneurism in the Circle of Willis. At this time the plaintiff was told by the professor managing her husband's case at Concord Hospital that nothing could have been done to save him. 5 Up until October 1998, the plaintiff viewed her husband's death as inevitable. The plaintiff's knowledge in relation to her husband's chances of survival changed in October 1998, in a moment of serendipity, at a patchwork class. At this class the plaintiff met a neurological intensive care nurse. During a conversation with the nurse the plaintiff was told that grade V aneurisms in the Circle of Willis can be treated. The nurse told the plaintiff that most berry aneurisms are located in the Circle of Willis and if they are observed before they rupture an operation can be performed which prevents the aneurism from rupturing. Once the plaintiff became aware of this she was motivated to seek obtain legal advice from a friend. She then instructed her current solicitors to take these proceedings. Background facts 6 In July 1995 the plaintiff and her family moved from Terrigal to Cheltenham. The plaintiff had selected the first defendant's surgery as the medical practice to which she and her family would attend should the need arise. Up to 4 March 1996 the plaintiff was the only family member who had needed to consult the medical practice. Prior to the events surrounding this cause of action, the plaintiff had consulted Dr Heise on one occasion. 7 In February 1996 the plaintiff's husband told the plaintiff that he had been suffering a few headaches and attributed their cause as being from the use of a mobile phone. At that time he informed the plaintiff that the headaches he was experiencing were not of a severe nature such that they would require medication. About late February 1996 the plaintiff's husband had suffered from what was thought to be a virus. He had a temperature of 39°. The plaintiff tried to persuade her husband to attend the casualty department of Royal North Shore hospital but he refused to do this because he did not consider that he was sick enough to warrant medical opinion and treatment. 8 At about 2.00 am on the morning of 4 March 1996, the plaintiff's husband woke her up. He told her that he had a very bad headache which would not go away. He told her that he had already taken two panadol tablets but that these had had no effect. He requested one of her migraine tablets. She gave him one Mersyndol tablet. He took this tablet and returned to bed. Subsequently, they both fell asleep. It was the plaintiff's view that for her husband to experience a headache of such severity that he was motivated to request one of her migraine tablets was most out of character for him. It concerned her greatly. 9 When the plaintiff awoke the next morning she told her husband that she would make an appointment for him to see a doctor for a full medical examination. He agreed with this course of action but requested that she make the appointment as late as possible in the evening so as to fit in with his work commitments. He worked as an architect and his office was located in the city whereas the medical practice was located at Thornleigh. That morning the plaintiff's husband indicated that he was feeling well. He went to work as usual. 10 The plaintiff and the second defendant have both prepared written statements which were admitted into evidence. Both parties were cross examined at length. The first defendant did not tender a statement nor did he give evidence. (I shall refer to this again later in the judgment). Conversation between the plaintiff and second defendant on 4 March 1996 11 Firstly, I shall record the events that are common ground; secondly, I shall consider both the plaintiff and second defendant's version of events, together with other surrounding circumstances; and then thirdly, I shall record my findings. On the evening of 4 March 1996 the plaintiff, after concluding the pre-arranged 6 pm appointment with Dr Ginger which lasted 30 minutes, approached the receptionist, the second defendant, firstly to pay her account, and secondly to make an appointment for her husband, Edward Alexander. It is common ground that the plaintiff and second defendant had a conversation at the prior consultation in about September 1995. From this September conversion the plaintiff knew that the second defendant was a trained school teacher but did not have any medical qualifications. The second defendant knew that the plaintiff was also a school teacher, and that they belonged to the same medical benefits fund. It is also common ground that the conversation on 4 March 1996 between the plaintiff and second defendant was conducted in an amicable manner and that the appointment for Edward Alexander was ultimately fixed for 6.45 pm on 11 March 1996. Both the plaintiff and second defendant agreed that at the time of making the appointment the plaintiff mentioned that her husband had been under a lot of stress at work lately. From this point onwards the plaintiff and second defendant's version of the conversation diverge. The plaintiff's version of the conversation of 4 March 1996 12 The plaintiff said: "I want to make an appointment for my husband Ted. I am extremely worried about him as he woke up in the early hours of this morning with such a severe headache that he asked me for one of my migraine tablets. I can't tell you how out of character it is for him to take any medication. He has been working so hard and has been under such a lot of stress lately. Ted has agreed to come in for a full medical examination and I have also heard that the doctor can perform a blood test to check for prostate cancer." 13 The second defendant replied: "Yes, the prostate test could be done. I would rather not make an appointment for Ted this week as Geoff has been working extremely hard and as a result I haven't arranged any late appointments for him so far this week, as he worked late every night last week. I would rather not make any late appointments unless there are several. I can however make a late appointment for you early next week." 14 The plaintiff said: "I am extremely worried about Ted's headache. Is it not possible for him to be seen by Dr Heise sometime this week?" 15 The second defendant said: "Well, is he sick? Is he in pain? Did he go to work this morning?" 16 The plaintiff said: "He did not appear sick and he was able to go to work this morning." 17 The second defendant said: "I can make an appointment on Monday 11 March 1996 at 6.45 pm." 18 The plaintiff said: "If there are any cancellations, could you please let me know so that he can see Dr Heise earlier?" 19 The second defendant said: "I will try." 20 Although it does not appear in the plaintiff's statement, she conceded in cross examination that she would have asked for an appointment after 6.00 pm (t 36.35) She did not say that she wanted an appointment "as soon as possible" nor did she use the words to the effect that she asked for an appointment "on the next available date" (t 38.40). She requested an appointment "during that week". She also acknowledged that she did not mention to the second defendant that her husband had had a virus a week or so earlier. She also acknowledged that she had requested that the appointment be with a male doctor. The plaintiff gave evidence that when the second defendant made an appointment one week hence her fears were allayed, because by doing so the second defendant implied that she (the second defendant) did not think Ted's medical condition was urgent. As the plaintiff was reassured, she did not see any need to make an earlier appointment at another medical practice. 21 The plaintiff also admitted that the real reason that she wanted her husband to be seen by the first defendant was because she thought that his headache indicated high blood pressure and if she was going to get him to a doctor then she wanted everything checked (t 30.35-45). The plaintiff agreed that once she started to speak to the second defendant her principal concern was to get an appointment for a full checkup (t 35.35). She also agreed that she had a heightened level of concern about her husband's headache (t 39.25). It is accepted that the plaintiff denies the version of the conversation given by the second defendant. The second defendant's version of the conversation that occurred on 4 March 1996 22 The plaintiff said: "I want to make an appointment for my husband Ted to see Dr Heise. He has been under a lot of stress at work lately". 23 The second defendant stated: "I cannot recall whether I started flicking through the appointment book or suggested that some day time consultations were available when Mrs Alexander continued: 'It has to be outside his work hours'. I think that I then suggested an evening appointment for the Wednesday or Thursday. Whilst I cannot be certain I seem to recall that these dates were not suitable as Mr Alexander would be away on business. Eventually Mrs Alexander chose the appointment for 6.45 pm on 11 March 1996. I recall writing in a virtually blank page in the appointment book. There was no suggestion of any urgency or illness from Mrs Alexander's perspective. If there had been I would have arranged for him to be seen the next day. I would have said 'Bring him in in the morning and doctor will see him when you get here'." 24 About 7 months after the appointment book (Ex Q) was located, the second defendant prepared a supplementary statement. Had the matter not been "not reached" in May 2000, a supplementary statement would not have available to be admitted into evidence. Although the diary was found in December 1999 the supplementary statement was not prepared until 20 July 2000. The second defendant in her supplementary statement said: "Now having the advantage of the appointment book which was in front of me at the time of my discussion with Christine Alexander, I can now recollect the physical activities and sequence in which events took place in the course of endeavouring to find an appointment for Edward Alexander. As at 6.45 pm Monday, 4 March 1996, no late appointment times were available to see Dr Heise on the following day, Tuesday 5 March 1996. In response to Mrs Alexander's enquiry, I did not offer an appointment on the Tuesday but in respect of paragraph 9 of my earlier statement, I can now say with reasonable certainty that I did not offer an appointment on Thursday evening, as Dr Heise had a dinner to attend, but I did offer evening appointments on Wednesday and Friday. By Mrs Alexander's response I was informed that neither Wednesday or Friday were suitable to her husband at that time and that the offered appointments for those evenings were declined." 25 The second defendant gave evidence that she remembered this conversation because she was surprised that there was a Mr Alexander. In evidence, the second defendant's evidence was that when the plaintiff was offered Friday night she said that it was not suitable and mentioned something to do with "town". The second defendant recalls writing the appointment in a virtually blank appointment book (Ex Q) and giving the plaintiff an appointment card (Ex B). As previously stated, it is common ground that an appointment was made for 6.45 pm on 11 March 1996, one week hence. 26 Specifically, the second defendant gave evidence that if a person came to the reception desk and said that her husband had a severe headache, she would say "Is he here? Bring him in" and if he was at home she would say "would you like Dr Heise to make a house call?" She gave evidence that in March 1996 if someone presented with a severe headache, she had an obligation to call the doctor (t 183). The second defendant conceded that had she been told by Mrs Alexander of her husband's headache, she would have said "Well does he have a headache now?" (t 184). 27 In light of the conflicting statements it is necessary to determine what the actual terms of the conversation between the plaintiff and second defendant on the evening of 4 March 1996. There is other relevant material to be considered. The plaintiff had recounted the events leading up to Mr Alexander's death to her psychiatrist. She also returned to see Dr Heise three weeks after her husband's death. 28 The second defendant's version of events is corroborated to some extent by the appointment book. It is acknowledged that Mrs Heise was not the receptionist on duty the evening of the 11 March 1996. There was a pencilled in entry for Mr Alexander on 11 March 1996 at 6.45 pm that has been erased and another patient's appointment was moved forward from 7.15 pm to take Mr Alexander's spot at 6.45 pm. This indicates that someone in the practice had prior knowledge that Mr Alexander would not be able to attend the appointment on 11 March 1996. This is curious because Dr Ginger found out about Mr Alexander's death a few weeks after it occurred. She was the one who informed Mrs Heise of Mr Alexander's death. As previously stated, the pencilled entry appearing under where Mr Alexander's name had previously been written in, ie. the 7.00 pm time slot, has been erased. This indicates that a 30 minute consultation for a full medical had been allocated to Mr Alexander. However, on close examination, it appears that the words "full medical" have also been erased. A further perusal of the appointment book shows that ½ hour long appointments were allocated but they were not common. 29 Returning to the second defendant's version of events, when she obtained the appointment book that has previously thought to have been lost, she was able to clarify from the book that Dr Heise had been unavailable on Thursday evening so she offered Friday night. In both statements she said that she offered the plaintiff an appointment for her husband on Wednesday evening which was declined. On the Friday night, Mr and Mrs Alexander went to a movie in the city. 30 The diary indicates that on Tuesday 5 March 1996, Dr Heise had appointments until 7.00 pm, but according to the second defendant those appointments had already been allocated prior to 4 March 1996. Hence no appointments were available on the Tuesday night. On Wednesday 6 March 1996, the diary shows that Dr Heise's last appointment was 6.30 pm. On Thursday 7 March 1996, Dr Heise's last appointment was 6.00 pm as he had a professional dinner to attend. On Friday 8 March 1996, Dr Heise had evening appointments, the last being at 6.30 pm. 31 Because Dr Heise had available appointments on all evenings except Tuesday and Thursday of that week, it is unlikely that the second defendant told the plaintiff that the first defendant had been working hard and that she would rather not make any late appointments unless there were several. Further, a perusal through the appointment book shows that Dr Heise worked long hours. He worked until at least 6.30/7.00 nearly every evening. In both of the second defendant's statements her assertion that she offered appointments on two evenings that week remained unaltered. It is important to note that on the second defendant's version the plaintiff failed to make any mention of her husband's headache. I will refer to this in more detail later in this judgment. Conversation between the plaintiff and first defendant of 12 April 1996 32 On 12 April 1996, the plaintiff returned to the medical practice and consulted Dr Heise, the first defendant for two reasons, namely she required a referral to a psychiatrist and secondly she wanted to ask the doctor if he had seen her husband prior to the aneurism rupturing whether anything could have been done to save him. The referral was written to Dr Cook. Dr Cook had an initial consultation on 16 April 1996. (referred to later in this judgment). 33 The plaintiff's version of this conversation is that she showed Dr Heise a practice appointment card (Ex B) with the appointment for Ted on 11 March 1996. She said: "I tried to get Ted in to see you earlier. If I could have got an earlier appointment for Ted to see you, do you think you could have done anything?" 34 The plaintiff says that she remembers his response most clearly. She says that Dr Heise lent back in his chair and said with great confidence: "Absolutely. I would have obtained a family history, performed a full physical examination and arranged for CT scans etc." 35 The plaintiff burst into tears and then asked: "Could he have been saved?" 36 The first defendant answered: "Yes." 37 After this conversation, the plaintiff felt confused and devastated. At the beginning of the consultation she was quite in control but after she heard the first defendant's opinion she started to cry and became very upset. Dr Heise prescribed a sedative. There is an entry in the appointment book for Mrs Alexander on 15 April 1996 at 12.30 pm and a tick appears next to her name. A Medicare charge was raised for that consultation. There is an undated referral note from Dr Heise to Dr Cook which refers to the plaintiff as being "frankly suicidal". There is no record of an attendance by the plaintiff on 12 April 1996. Further there is no file note of Mrs Alexander's attendance either on 12 April or 15 April 1996. It could have been expected that Dr Heise would make a file note if the patient was "frankly suicidal". The consultation took place either on 12 April or 15 April 1996. It is more likely that the plaintiff has the incorrect date and the consultation actually occurred on 15 April 1996. 38 Dr Heise was in court during the four days of hearing of this matter, but was not called to give evidence. There was no explanation as to why he did not do so. The defendants' counsel submitted that because the plaintiff saw Dr Vandenburgh on 15 April 1996 but her discussion with Dr Heise took place on 12 April 1996, then the plaintiff's evidence of her conversation with Dr Heise should be rejected. I do not think so. Dr Heise was the one who could give compelling evidence of this conversation but chose not to do so. I make an inference that his evidence would not add anything to this version of the conversation between himself and the plaintiff of 12 April 1996. Accordingly, I accept the plaintiff's version of the conversation of 12 April 1996 with Dr Heise, the first defendant. Despite this conversation and her reaction to it the plaintiff says continued to hold the belief that nothing could have been done to save her husband up until October 1998 (referred to earlier in the judgment). This could have been because Dr Cook reassured the plaintiff that someone with a Grade V aneurism could not be saved. This was Dr Cook's then belief (t 62.10). 39 The plaintiff's version of events given in evidence is consistent with what she told her treating psychiatrist Dr Cook between 16 April 1996 and 20 October 1998. Of most importance is Dr Cook's file note of 20 October 1998. Dr Cook gave evidence and was cross examined. I formed the view that he was giving truthful evidence. A letter from the plaintiff to Dr Cook dated 2 January 1998 (Ex H) shows the level of reliance the plaintiff placed upon her treating psychiatrist. 40 On 16 April 1996, the plaintiff was very distressed during her consultation with Dr Cook. It occurred the day after she had been told by Dr Heise that her husband could have been saved. The initial file note of 16 April 1996 (Ex L) relevantly records that the plaintiff told Dr Cook of the death of her husband. The note further indicated that her husband had been complaining of headaches for a week, but was fit and well otherwise. He had been happy and working hard. The plaintiff gave her husband a Mersyndol and advised the local medical officer. The plaintiff gave this version of events shortly after the death of her husband and it accords with her later recollection, but by 16 April 1996 the significance of the headache as opposed to the other concerns she had at the time she made the appointment would have become obvious to her. 41 By 20 October 1998, the plaintiff had just been told and accepted that her husband could have been saved and had accepted this as being correct. In the file note of 20 October 1998 Dr Cook recounts as follows. Mr Alexander's birthday was coming up. The plaintiff had wanted her husband to see Dr Heise but the receptionist deflected her request. She had made an appointment for Mr Alexander to see Dr Heise but he suffered a CVA the day before. After Mr Alexander's death the plaintiff visited Dr Heise who told her that if Mr Alexander had been seen for headaches he would have had a CT scan and been saved by surgery. The note recorded that being told this by Dr Heise considerably increased grief and distress for the plaintiff. 42 In October 1998 Dr Cook thought (correctly as it turned out) that the case may become a medico/legal one and at that time he could verify that the plaintiff had previously recounted the making of an appointment with the receptionist and the subsequent consultation with the doctor. So at the end of this consultation he wrote at the foot of his file note that he agreed with the plaintiff's recollection (above) because it struck his mind at the time as being an unhelpful comment if the report of the meeting with Dr Heise was accurately reported by her. 43 Dr Cook also gave evidence that he remembered that within a few weeks of the plaintiff commencing to see him. She told him that she had tried to make an appointment for her husband and was told by the receptionist that the doctor had a hard week, a very busy week and that she had been asked to put off the appointment to the following week (t 62.10). Also within this time the plaintiff recounted her consultation with Dr Heise in substantially the same terms as her later statement. During the first 18 months of consultations the plaintiff returned to this topic a number of times. Of course the plaintiff recognised that the most significant symptom out of the range of matter she was concerned about when making the appointment was the severe headache. She naturally felt guilty over her husband's death and went of how things could have gone differently. During the first few months the plaintiff saw Dr Cook twice per week. 44 From April 1996 until 1998 the plaintiff had memory problems. Dr Cook attributed the memory problems as being side effects of medication. Dr Cook has diagnosed the plaintiff as suffering from depression and obsessive/compulsive disorder. Notwithstanding those conditions, it is his opinion that there is nothing in part of her condition which would lead him to conclude that if she asserts a set of facts they ought not be accepted (t 95.55). 45 I have some reservations with the second defendant's evidence. In her October statement she stated that she had worked in her husband's surgery for over 10 years. The true situation was that towards the end of 1994 the second defendant started working one evening a week namely Wednesday evening. In 1995 the second defendant increased the number of days she worked to three. Prior to 1995 in total she maybe worked two to three weeks at the surgery, filling in for secretaries who had holidays or illnesses (t 161.5). The second defendant became the full time receptionist for the practice in late 1995/early 1996. By her statement the second defendant was trying to give the impression that she was a very experienced medical receptionist when this was not the case. Also the second defendant gave evidence that the medical training course she attended at Ku-ring-gai in 1993 reinforced what she already knew. Yet at that stage she had only worked at best for three weeks in total as a doctors' receptionist (see t 208). 46 Further, she was emphatic that she had the clear recollection that when she was informed of Mr Alexander's death (some three weeks after it occurred) she thought "How dreadful it was that he had that episode that caused his ultimate death the day before he was due to see Dr Heise". She thought "What a shame it was that Mr Alexander did not see Dr Heise the Wednesday before when she had offered the appointment" (t 169.45-190). The plaintiff's statement reads as though she and members her family attended the medical practice. She admitted that that statement conveyed the wrong impression as she was the only family member who had consulted the practice prior to 4 March 1996. 47 From the foregoing evidence, I make the following findings. The plaintiff, at the time she made the appointment for her husband with the second defendant, had a number of matters she wanted to convey. They were, in order of importance, firstly, that her husband had such a severe headache that he asked her for a migraine tablet; and secondly, she wanted her husband to have a full medical checkup because she thought that the headache may have been related to stress due to his work. Both the plaintiff and second defendant agreed that she mentioned stress due to work. The plaintiff also thought that her husband may have been suffering from high blood pressure but she acknowledged that she did not mention this factor to the second defendant. She also did not mention that he had been suffering from headaches during the previous month. Thirdly, she wanted a blood test to check for prostate cancer. It is more likely than not that Mrs Alexander would have, after requesting an appointment for her husband, said that he had suffered a severe headache during the previous evening and this headache was so out of character that he requested one of her migraine tablets, or words to this effect. Because the headache was out of character it was the catalyst by which she was able to convince her husband (who had been reluctant in the past) to agree to see a doctor. The significance of the headache would have been foremost in her thoughts and so it is most unlikely that she failed to mention it. 48 I do not accept the second defendant's version that the plaintiff made no mention of a "severe headache". It is my view that the plaintiff said words to the effect that Mr Alexander had a severe headache and he had requested one of her migraine tablets which was "out of character". It is also more likely than not that the plaintiff would have repeated that she was worried about Mr Alexander's headache as this would have elicited the response by the second defendant in response to being told of the "severe headache" and asked about Mr Alexander's symptoms that day. The second defendant gave evidence that she was aware that she need to ascertain the duration and severity of symptoms in order to ascertain how quickly an appointment should be given. This is in accordance with her practice, had she been told of the headache. I accept that Mrs Alexander replied "He did not appear sick and was able to go to work this morning." I do not think that Mrs Alexander stipulated that the appointment had to be by the end of the week but it is more likely, she would have said "as soon as possible". 49 If the plaintiff had just mentioned "stress at work" the version given by the second defendant, it is unlikely that a long appointment would have been allocated. I prefer the plaintiff's evidence that she said that she required a full medical checkup for her husband. This accords with the diary entry that had recorded "full medical". I also accept that Mrs Alexander spoke of a test for prostate cancer being performed at that appointment. As previously stated, the plaintiff had difficulty persuading her husband to consult a doctor. She would have taken the opportunity to get the all matters concerning her husband's health checked. 50 I do not accept that the second defendant said that she would not make an appointment for Mr Alexander that week because firstly, her husband was working very hard and secondly, she would only make an appointment if several had already been given on that evening, The diary does not bear this out and I accept the second defendant's evidence that she always sought to fit patients into Dr Heise's schedule. What most likely transpired was that after the conversation referred to earlier took place, the second defendant did not attach any urgency to the headache above the matters mentioned so she allocated a long appointment where there next appeared a number of blank evening spaces, namely 11 March 1996. It is more likely than not that the second defendant did not offer the appointments of Wednesday or Friday evenings. Nor do I think that the statement to the effect that if there were any cancellations would the second defendant let the plaintiff know, occurred. It is more likely than not that the plaintiff's fears would have been allayed by the making of the appointment on 11 March 1996. The plaintiff was not in a position to realise the significance of a severe headache, other than it was worse than the other headaches her husband had suffered during the previous month. 51 As previously stated, the plaintiff recounted Mr Alexander's headache and the making of the appointment and her conversation with Dr Heise on a number of occasions to Dr Cook. These statements were made within a few months of her husband's death but by then her focus had been directed to the significance of the headache namely, it was a warning leak. The importance of Mr Alexander seeing a doctor before the aneurism became life threatening was also apparent to her. These statements made to Dr Cook convey the same impression as statement tendered to the court. Although the plaintiff may have indicated that she was worried about Ted's headache she did not by her manner nor tone of her voice convey a sense of urgency. As previously stated, it is common ground that the conversation was conducted in an amicable manner. Dr Fisher agreed that if a person requesting an appointment that is absent of any sense of urgency, it makes it much more difficult for the receptionist to pick up a sense of urgency (t 127.10-15) but according to Dr Fisher if Mrs Alexander's version is accepted, it does not make any difference to his opinion whether she expressed urgency by tone or not. 52 It must be acknowledged that the second defendant did not have the benefit of physically observing Mr Alexander's condition, nor was she able to question him so as to gauge urgency of the situation by his responses. The second defendant was aware that Mr Alexander's headache had resolved by the next day and he felt well and went to work in the normal manner. The second defendant had to rely solely upon what the plaintiff told her. Were the defendants, or either of them under a duty of care to Mr Alexander ? 53 The statement of claim alleges that the first and second defendants owed a duty of care to the plaintiff and her family to ensure that her concerns were properly managed. The defendants deny that they owed a duty of care to Edward Alexander. The defendants deny that they breached their of duty of care and deny that they were negligent. The first defendant does not admit that he was vicariously responsible for any breach of duty of care by the second defendant. According to the defendant there is no duty of care on the part of the administrative staff employed by a doctor, such as receptionist and nor can a doctor be under any such duty vicariously by means of any information of which his administrative staff became aware during the course of their employment. 54 In the second defendant's statement of 1 October 1999, she admitted that in 1995 she commenced employment at her husband's surgery for two days per week as a receptionist. Likewise, Dr Ginger gave evidence that the second defendant worked at the practice as a receptionist. It was the doctors of the practice who trained and instructed the receptionist. It is my view that the second defendant was an employee of the first defendant and that the first defendant is vicariously responsible for the acts of the second defendant. 55 The question to be decided in the case before this court is not whether the first defendant's conduct accords with the practice of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the courts and the duty of deciding it cannot be delegated to any profession or group in the community. (Rogers v Whittaker (1992) Aust Torts Reports 81-189; (1992) 175 CLR 479; (1991) Aust Torts Reports 81-113; (1991) 23 NSWLR 600). The first defendant's duty of care is to exercise the reasonable care and skill expected of a general practitioner in 1996. The expert evidence as to the practice of general practitioners in 1996 plays an influential role in ascertaining the standard demanded by law. 56 The first issue to be decided is whether the doctor had a duty of care towards Mr Alexander who had not previously consulted a medical practitioner of the surgery. The defendants submitted that there is no duty of care on the part of a medical practitioner to attend upon a person who is sick, even in an emergency, if that person is one with whom the doctor is not and has never been in a professional relationship of doctor and patient. In Jones v Manchester Corporation [1952] 2 All ER 125 (per Lord Denning p 131), it was stated that by accepting a patient for treatment, the hospital authorities came under a duty of care to use reasonable skill and care in their treatment of that patient. The learned author, Michael Jones in the text "Medical Negligence" (Sweet & Maxwell, London 1996) at p 36 para 2-027 stated that once a person is accepted onto a general practitioner's list they are clearly the doctor's patient, even if the practitioner has never seen that person in a professional capacity. The basis of this assertion was National Health Service (General Medical Services) Regulations 1992 (UK). 57 In Lowns & Anor v Woods & Ors (1996) Aust Torts Reports 81-376, it was held that in special circumstances there was relationship of proximity between the plaintiff and the medical practitioner, a general practitioner, notwithstanding their lack of previous profession association. The special circumstances arose because it was a medical emergency. Prior to the decision in Lowns there was no Australian case in which a doctor had been held liable for damages because of a failure to attend upon and treat someone who was not already his patient. In a recent case, BT v Oei [1999] NSWSC 1082, this court held that a general practitioner owed a duty of care to a sexual partner of a patient in certain circumstances. 58 Policy has a role to pay in deciding whether a duty of care exists. Also the particular connection between the parties including the second defendant's knowledge of risk compared to the plaintiff's appreciation of risk is a relevant factor in determining whether a duty of care exists (Perre v Apand Pty Ltd [1999] HCA 36 at 21 para 216). In this regard both Mr and Mrs Alexander had no medical knowledge that would have enabled them to appreciate the risk, whereas Dr Heise had he been consulted by the receptionist did have the isolated and specific knowledge that the headache was of a severe nature and would have appreciated the risk. Dr Heise would have firstly, recognised the significance of Mr Alexander's headache; secondly, he would have taken steps to investigate this headache including referral to hospital for a CT scan; and thirdly, he said that he believed that Mr Alexander would have been saved. It is foreseeable to the doctor that if a patient presenting with a severe headache of a significant duration could indicate sinister pathology then urgent medical attention is required to exclude the sinister pathology. 59 The plaintiff tendered expert reports of Dr Fisher dated 16 November 1999 and 22 November (Exs N & O respectively). The defendant tendered a report of Dr McBride of 29 November 1999 (Ex 1). Both doctors gave evidence and were cross examined. Dr Fisher has been a practising general practitioner for 44 years and retired in 1998. He currently is involved in advisory work for the College of General Practitioners having been at one time the President of the Royal Australian College of General Practitioners. Dr Fisher has written his report on the basis that the plaintiff's version of the conversation is accepted. Dr Amanda McBride is a practitioner of 20 years standing. Dr McBride prepared her report on the basis that Mrs Alexander did not indicate urgency or a situation of emergency to the second defendant. 60 Dr Fisher's view is that when a patient presents by proxy, it is the equivalent of the patient themselves presenting because they are presenting a list of symptoms which they are concerned about. It is common for a doctor to get telephone calls from adults about other adults (t 113.10). Dr McBride said that if a person telephoned the receptionist, who relayed the message back to her, her response would be that she cannot judge the illness of a person over the phone (t 138.40) or if a person was seeking to make an appointment for her husband, she would need the husband to contact the practice himself. 61 Patients presenting to a doctor's surgery with headaches would not be an uncommon occurrence. According to Dr McBride if a person presented with a problem such as a severe headache, her receptionist would communicate it to her (the doctor). She would request her receptionist to pursue it a little further and find out what it is all about. The reason for this is because while a headache can be a symptom of an utterly benign condition, it can be a condition of an impending catastrophe. Dr Fisher agrees that headache requires a proper history taking and examination to endeavour to establish its course, because it not only can signify haemorrhage but can also signify serious complications such as meningitis, encephalitis or space occupying lesion. 62 Dr McBride gave the following evidence: "Q. And if somebody came in with headache, that is something which raised the index of concern such that the properly trained receptionist acting prudently would be expected to tell the doctor about it to see that an immediate appointment was made? A. Yes sir, broadly speaking. Q. And of course if somebody came in and said I have had a headache utterly uncharacteristic of such severity that it woke me from my sleep in the early hours of the morning requiring me to take medication and do something about it, that is something which would raise in your mind as a medical practitioner certainly an index of suspicion which required it to be immediately looked at, wouldn't it? A. If the person were there, yes sir. Q. If the person were there. And if they were not? A. I would request that they contract the surgery. Q. So you would have expected, in the circumstances, if that was what was said to your receptionist that you would have expected in those circumstances that the receptionist tell you so that the receptionist could then tell the person they should be doing something about it either coming to see you or seeing another medical practitioner? A. If they were worried, yes sir." 63 Dr McBride also gave evidence that if she was asked she would have requested the receptionist to check that the headache was not severe enough to warrant a check up today. If the information came back that the headache was that severe she would fit the person in if they wanted an appointment that day. 64 At the first defendant's practice, if a person presented to the receptionist, requested an appointment for someone else who was not a patient of the practice but was able to describe the symptoms suffered by that other person, the same instructions applied, ie., if the receptionist was unsure, she was to contact the doctor and the doctor would speak to the person involved. (t 150.15). No distinction was drawn between whether the person had consulted the practice on previous occasions or whether they were a new patient. This practice is in accordance with Drs Fisher and McBride's view. It is my view that once Mr Alexander's symptoms were described to the receptionist, albeit by his wife and an appointment was made, Mr Alexander became a patient of the practice and a duty of care was owed to Mr Alexander by at least the first defendant, Dr Heise. 65 The statement of claim alleges that the defendants breached their duty of care in that firstly, the first defendant failed to instruct or properly instruct the second defendant on the proper management of patients who present with concerns of the kind here; secondly, that the second defendant failed to consult the first defendant about the plaintiff's concerns when she knew or ought to have known that with the history provided by the plaintiff the possibility of sinister pathology could not be excluded and in the circumstances, urgent attention was warranted; and thirdly, the first defendant failed to have in place any adequate protocol or guidelines for a receptionist dealing with a patient presenting with concerns of the kind here. (Paras 19-22 S/C). 66 Both Dr Fisher and Dr McBride agreed a doctor's receptionist should comply with the statements that appear in the Royal Australian College of General Practitioners Handbook for Medical Receptionists 1995, 5th Edition (Ex M). The practice recommended in the handbook is one which was adopted in the first defendant's medical practice in any event. There is a section in the handbook headed "Which Patients require Priority" (p 20). It commences with a warning that unless a receptionist has specific medical training and written instructions, important to the decision on when a patients must been seen are the following: "1. Duration of problem (in minutes, hours, days) 2. Severity of symptoms 3. Assessment of the patient, e.g. (a) life threatening (b) severe pain (c) mild discomfort." 67 Not surprisingly the handbook then states that the receptionist must use his or her judgment. Where there is any doubt a receptionist should ask the doctor, or give the patient the benefit of that doubt. 68 Under the subheading "urgent problems to see the doctor today" in relation to the brain, head and neck area the handbook states: "Weakness or Paralysis Blurred speech Fits Faints Funny turns Confusion Coma Dizzy spells Giddy turns Headache" 69 It should be noted that headache appears on the list of urgent problems to see the doctor today, depending upon the duration and severity of the headache and after an assessment of the patient has been made. 70 It was Dr Fisher's opinion that a medical receptionist should have specific medical training and written instructions (t 111.50). It was Dr Fisher's opinion that in a situation where a wife seeks an appointment for her husband, a properly trained receptionist would, when confronted with the statement "my husband has been under a lot of stress at work lately", explore this further as it may conceal serious problems such as suicide, threat to job, severe depression or, as in this case, headache, all of which would require an urgent consultation. It is common ground that a well trained receptionist would inquire about specific complaints, their severity and duration of the complaint. The receptionist is, in Dr Fisher's opinion, placed in the position of a triage without the specific training of nurses, and where there is a request for any urgency of assessment it should be referred to the doctor. There should not be, in his opinion, intervention or triage by the receptionist (t 112.5). 71 Dr Fisher considered that if Mrs Heise did receive a history that Mr Alexander had woken up in the early hours of the morning with a severe headache and uncharacteristically requested the plaintiff's migraine tablets, the receptionist should have spoken to the general practitioner concerning the problem. Alternatively, if Dr Heise was not available, then the receptionist should have advised the plaintiff that Mr Alexander should be seen that day either at another practice or hospital. 72 Likewise, Mrs Heise gave evidence that if there were any concerns presented by a patient regarding the severity of a condition she would go and talk to Dr Heise about it. There was a two way telephone so she could pick up the phone and ask him for advice. She also said that if a patient was present at the surgery and they were obviously unwell then she felt free to knock on the door, interrupt Dr Heise's consultation and ask him to come out. Her instructions were if in doubt ask or get him to come out and this was the practice procedure. The secretaries who Mrs Heise relieved followed this rule of thumb. 73 Mrs Heise gave evidence that she had been instructed that if a patient presented who was sweaty, grey, with chest pain, migraine, severe headache, asthma, severe pain, problems with visuals and vomiting, children with high temperatures, collapse or trauma or what would be a severe health condition, she was to call the doctor, either on the phone or else just go and knock on the door and ask him to come out. This was to happen even if the doctor was with a patient and someone presenting any of these complaints needed immediate attention. 74 Both Dr Fisher and Dr McBride accepted that a general practitioner has the responsibility for determining whether patients require urgent medical attention. Where there is a doubt as to the urgency, both Dr Fisher and Dr McBride agreed that the receptionist should speak directly to the doctor to obtain the benefit of his or her medical opinion. The second defendant's evidence was that as a matter of practice she consulted the doctor if this situation arose. Both Dr Fisher and Dr McBride gave evidence that a properly trained receptionist acting prudently would be expected to tell the doctor about a patient complaining of a headache which raised their (the receptionist's) index of concern and ensure that an immediate appointment was made. Hence it is my view that a general practitioner has the responsibility to ensure that the patients seeking appointments are properly prioritised. The medical practitioner should have guidelines in place so that where the receptionist is unsure if the patient's medical condition of an urgent nature, he or she is to consult the doctor for the doctor's decision as to whether the patient should be seen urgently and if so the time period in which he or she needs to been seen It is also my view that the first defendant is vicariously responsible for the acts of his employees, namely the second defendant. If I am wrong on this issue, it is also my view that a medical receptionist owes a duty of care to the patient to ensure that if he or she presents with a possible urgent medical condition, that patient is seen in a timely manner. If the doctor is unavailable and a patient presents with an urgent medical condition the receptionist should refer the patient elsewhere such as the nearest hospital accident and emergency section or another medical practice. The answer to the first question is that both defendants owed a duty of care to Mr Alexander. Did the defendant or either of them breach their duty of care? 75 Dr Fisher gave evidence that he would expect the receptionist to pick up the concerns and worries of the person who was expressing the worry and if she did so it would be her duty to say to the doctor words like she has a patient who is worried about a person who has a headache this morning and it was an uncharacteristic headache and it has now gone away. She wants him to have a general examination because she says she is worried about it. According to Dr Fisher it was incumbent upon the second defendant to consult the first defendant before giving an appointment one week later. Dr Fisher also adheres to view that where a spouse of a general practitioner is acting as a receptionist, there is a conflict of interest in her concern for the patient and concern for the general practitioner, especially if the receptionist has no medical or receptionist training. 76 As previously stated, it is important to consider that the second defendant did not have the benefit of observing Mr Alexander to assist her in her assessment as to whether the appointment was of an urgent nature. Clinical assessment is a important tool. Nor did second defendant have the opportunity to ask Mr Alexander any specific questions and have the benefit of his response. The second defendant was solely reliant on the plaintiff's account to determine whether or not Mr Alexander should see the doctor on an urgent basis. Even though the plaintiff told the second defendant of Mr Alexander's "severe headache" the night before and that it was so out of character that he asked for a headache tablet, this information was conveyed in the context that she wanted a full medical checkup to take place. 77 The conversation was amicable and the plaintiff did not articulate that she required an urgent appointment. The second defendant asked about the duration of the headache and knew only that the headache was "severe". This, in my view, was not enough to raise the second defendant's index of concern. The second defendant made an assessment of the patient on the information she had available and assessed Mr Alexander's problem as not being life threatening and as he was well the next morning and went to work as normal she was entitled to categorise it as not being urgent. In these circumstances no obligation arose to consult the doctor, the first defendant for his opinion. Mr Alexander made a choice not to see a doctor on an urgent basis but chose to delegate the making of a medical appointment to his wife. He chose to go to work rather than see a doctor that day. Mr Alexander was only willing to attend an appointment for a full medical checkup if it could be conducted after 6.00 pm that placed limitation on the range of appointments that could be given. In these circumstances, I agree with Dr McBride where she gave the following evidence. 78 Dr McBride stated (t 138.5-10): "The word severe headache would alert someone that there is something untoward going on. However, it was followed by the fact that the interpretation of his wife as a non-medical practitioner is that it is stress related and her husband had agreed to have a medical examination, which indicates to me that he did not really want a medical examination, that is wife was worried and that a certain group of people in this community are very stoic and do not want to have medical examinations no matter what was happening. And, therefore, quite properly she was trying to get him in for a full check up. She really wanted him checked out thoroughly because this does not happen very often. Having a migraine tablet to settle down a severe headache at that point in time, a migraine tablet can be, with due respect - what is recommended in accident and emergency is three aspirins and that is often there recommended." 79 It was her view that it would be an uncommon occurrence if a Mersyndol would settle down a headache of severe intensity. The taking of a migraine tablet would not have alerted her that there was anything wrong that would warrant an appointment that day. 80 It is my view that the first defendant, the general practitioner, had a duty of care to properly instruct the second defendant, the medical receptionist, on the proper management of patients who presented with complaints which may warrant urgent attention. It is my view that the first defendant had properly instructed the second defendant on the proper management of patients who present with complaints that may warranted urgent treatment. In the circumstances where Mrs Alexander expressed a number of concerns about her husband's medical condition in an amiable manner and wanted these checked out in the context of a full medical checkup where there was no patient to assess, it is my view that the medical receptionist acted reasonably and prudently in allocating an appointment the following Monday. The second defendant was aware that the severe headache had subsided the next morning and Mr Alexander was well and had gone to work. In these circumstances the second defendant's index of concern would not have been heightened. A medical receptionist acting reasonably and prudently would not have appreciated that Mr Alexander could have a life threatening condition on the information provided. The risk of him suffering a grade V aneurism or some other life threatening illness on what she was told by the plaintiff was not foreseeable. The first and second defendants did not breach their duty of care that they owed to Mr Alexander. 81 Further in relation to the alternate allegation that the first defendant failed to have adequate protocol or guidelines for the reception, the only external training course the second defendant attended was in July 1993 when she attended a week long seminar conducted by the Ku-ring-gai District Medical Association (t 199.35). This covered bookings, handling of complaints, and determining the priority of patients. There were no regular training sessions given by the practice but the medical practitioners in the practice would try to have either second or third monthly meetings with the staff to go through issues and problems. 82 The second defendant stated that the first defendant instructed her on how to perform duties at the surgery. (t 160.25-30). Training of receptionists at the first defendant's medical practice was after every session they had in general practice they used to talk to the receptionists. They would give the doctors a list of phone calls or messages that were required. The doctors would go through - sometimes, if there was an issue the doctors would discuss those issues after the session as well. Nevertheless, the first defendant was aware of matters requiring urgent attention and where there was a doubt she was to consult the doctor. She was also aware of how to assess a patient and explore the duration of the problems and the severity of the symptom. It is my view that the first defendant had in place adequate guidelines for a patient presenting with a severe headache. The answer in respect of whether the defendants breached their duty of care is no. 83 The questions are answered as follows: (1) Whether the defendants, or either of them, were under a duty of care in the circumstances. Answer: Yes, both defendants were under a duty of care in the circumstances. (2) Whether the defendants or either of them, breach a duty of care, if in fact one did exist. Answer: In respect of each defendant, the answer is no. ********** Last Modified: 02/27/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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