PD v Dr Nicholas Harvey & 1 Ors [2003] NSWSC 487

New South Wales Supreme Court

CITATION : PD v Dr Nicholas Harvey & 1 Ors [2003] NSWSC 487 HEARING DATE(S) : 05/05/03,06/05/03,07/05/03,08/05/03,09/05/03,12/05/03,13/05/03,14/05/03,15/05/03 JUDGMENT DATE : 10 June 2003

JUDGMENT OF : Cripps AJ at 1 DECISION : see para 125

CATCHWORDS : Negligence - medical practitioner - scope and content of duty of care after joint consultation for sexually transmissable diseases LEGISLATION CITED : Public Health Act 1991 s17(1), s17(2), s17(3), s11, Public Health Regulation 1991 s7(2), s10,s16,s75 Burnicle v Cutelli (1982) 2NSWLR 26 Hill v Van Erp (1996) 188 CLR 159 CASES CITED : March v Stramere (E.&M.H.) Pty Ltd (1990) 171 CLR 506 Sullivan v Gordon (1998-1999) 47NSWLR 319 Rogers v Whitaker (1992) 175 CLR 479 PARTIES : Plaintiff - "PD" Defendant - Dr Nicholas Harvey & 1 Ors FILE NUMBER(S) : SC 20333/01 COUNSEL : Plaintiff - Mr J Anderson/Mr P Strain Defendant - Mr I Harrison SC/Ms J Lonergan SOLICITORS : Plaintiff - Maurice Blackburn Cashman Defendant - David Ian Brown Solicitor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

CRIPPS AJ

Tuesday, 10 June, 2003

20333/01 - "PD" v Dr Nicholas Harvey and Anor JUDGMENT 1 HIS HONOUR: The plaintiff "PD" was a patient of the Alpha Medical Centre at Marrickville from October 1997 to February 1999. 2 On 16 November 1998 she attended the Centre with her future husband (referred to as FH) for the purpose, as understood by Dr Harvey (the first defendant) who saw them together, of having blood tests to ensure that neither carried the Human Immunodeficiency Virus (HIV) or any other sexually transmitted disease because they were proposing to get married. At the time of the consultation they were not living together but had a sexual relationship and practised protected sex. 3 Dr Chen (the second defendant) was the medical director of the Alpha Medical Centre and he employed Dr Harvey on a regular sessional basis. 4 In the course of the joint consultation Dr Harvey was told FH came from Ghana. The plaintiff has given evidence that she was concerned about the sexually transmitted health status of her future husband because she believed there was a higher risk that a person from Ghana would be HIV positive than from Australia. Dr Harvey would not concede his understanding that that was so but recorded Ghana in his notes because he believed that a person from Ghana had a higher than usual possibility of having other sexually transmitted diseases. 5 On PD's card was recorded: "16.11.98 Low risk lifestyle nil IVDU No anal sex Wants STD check Investigation - HIV Hep B/RPR See 1/52 Dr Nic Harvey " 6 FH's card records: "16.11.98 Low risk lifestyle nil IVDU From Ghana About to engage in new relationship Counselled wants blood test for STD Talk about ….. – nil. Investigation HIV Hep B/RPR See 1/52" 7 Part of the notes is almost indecipherable but it appears to be generally accepted by the parties that the portion not transcribed referred to the possibility of genital ulcers. 8 However what is of significance in the present proceedings is that there was no mention on either card of a joint consultation having been held and there was no mention on PD's card that she was about to enter a new relationship. These were significant omissions bearing in mind PD had been a patient of the Centre for more than a year and it was at her request FH came to the practice for testing. 9 In both cases the note "1/52" is a reference to one week – i.e. they were told to return in about a week to get their results. 10 It is common ground that at the first (and only) joint consultation Dr Harvey did not inform either PD or FH that unless consent were given he was legally prohibited from disclosing any information concerning HIV or Acquired Immune Deficiency Syndrome (AIDS) about one to the other. How the information was to be dealt with was simply not discussed. The plaintiff believed, and as I find, on reasonable grounds, that she would have FH's results and he would have hers. But the topic was not raised. Dr Harvey told them to return to his surgery in about a week's time when the pathology tests would be available. 11 But both gave blood in the presence of each other and left the surgery. 12 On 23 November 1998 Dr Harvey received PD's pathology report. It noted she was negative both for Hepatitis B and HIV. On 24 November 1998 he received FH's pathology report which recorded he was positive for Hepatitis B and HIV. 13 Some time between one and two weeks after giving blood (the date not recorded in the doctor's surgery notes and not precisely remembered by PD) PD returned to the surgery. The receptionist gave her a copy of her pathology report. She asked for a copy of FH's pathology report but was told it was confidential and could not be given to her. I have already mentioned that I accept her evidence that she and FH had agreed to exchange pathology results and her request for his results merely confirmed her continuing understanding of that arrangement.