Camilleri v Medbury [2003] NSWSC 225

New South Wales Supreme Court

CITATION : Camilleri v Medbury [2003] NSWSC 225 HEARING DATE(S) : 17, 18, 19, 20, 21 March 2003 JUDGMENT DATE : 31 March 2003

JURISDICTION: Common Law Division Professional Negligence List JUDGMENT OF : Master Malpass DECISION : I find for the defendant on the question of liability. There will be judgment for the defendant. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned

CATCHWORDS : Medical negligence - meningitis not diagnosed - when infection contracted - what warning, if any, was required - what warning was given - was there a breach of duty - causation. LEGISLATION CITED : N/A CASES CITED : Rosenberg v Percival (2001) HCA 18. Joseph Camilleri (Plaintiff) PARTIES : v Richard John Medbury (Defendant) FILE NUMBER(S) : SC 20231 of 2001 COUNSEL : Mr S Campbell SC/ Mr H Bauer (Plaintiff) Mr I Wales SC (Defendant) SOLICITORS : Maurice May & Co (Plaintiff) Tress Cocks & Maddox (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

Master Malpass

Monday 31 March 2003

20231 of 2001 Joseph Camilleri v Richard John Medbury

JUDGMENT 1 MASTER: The defendant is a registered medical practitioner who has carried on practice as a general practitioner at Bathurst (Busby Medical Practice). It was a practice that had an out of hours facility. On 29 April 2000, which was a Saturday, the plaintiff had a consultation. It took place about 9.00 am or shortly thereafter. 2 A diagnosis of occipital neuralgia (or pinched nerve) was made. He was given an injection (Depo-Medrol), which is a cortico-steroid. On 30 April 2000, the plaintiff was taken by ambulance to Bathurst District Hospital. The admission time was 4.21 am. Later, he was diagnosed as having pneumococcal meningitis (meningitis). 3 These proceedings were commenced by Statement of Claim filed on 30 March 2001. A claim for damages is made founded on alleged medical negligence. The hearing of the claim commenced on 17 March 2003. The question of liability only had been set down for hearing. 4 During the opening of the plaintiff's case, the court was told that it was put in the alternative. Firstly, it was said that the defendant should have detected the early stages of meningitis. Secondly, in the alternative, it was said that in the light of the history given by the plaintiff to the defendant and his examination of the plaintiff, the defendant should either have prescribed antibiotics and/or given clear advice that he should immediately seek further medical attention should there be a deterioration in his condition. 5 Sometime thereafter, the contentions concerning failure to warn were reduced to writing (Exhibit 3). It may be said that it saw some changes to the case. It also proceeded on the basis that the meningitis was a development of whatever condition was had by the plaintiff at the time of the consultation. 6 The plaintiff was born in Malta on 13 July 1952. He migrated with his family from Malta in 1965. He obtained his School Certificate at De La Salle College, Ashfield. After leaving school, he first worked as a telegram boy with the PMG. He later obtained employment with the M W S & D B. 7 He spent some time in prison (about 12 months). He was caught growing hemp. He had earlier married in 1983. He has a son and various grandchildren. In 1989, the family moved to Bathurst. He obtained employment with Uncle Ben's Bathurst. He remained in that employment at the time of his illness. 8 Preceding his illness, he was on two weeks holiday. It may be that he saw the defendant at the end of his holidays. 9 The plaintiff now lives with his wife and grandson at Hawks Nest. There is no dispute that he contracted fulminant meningitis and that he has suffered brain damage. His memory has been badly affected by the illness. 10 I have closely observed the various witnesses during the giving of their respective evidence. In assessing reliability and credibility, I have had regard both to demeanour and evidence. 11 The plaintiff presents as having but limited recollection of the consultation. He recalls complaint of headache and neck pain. He recalls an examination of his neck and his head being moved from side to side. He recalls an injection in the neck. It gave him at least some temporary relief. He has no memory of what was said to him by the defendant. 12 He gave evidence of an experience which he describes inter alia as like going haywire. This he said took place after the injection and when he went outside to wait for his wife. 13 The evidence reveals that he has to be regarded largely as an unreliable witness (inter alia in relation to matters involving recollection). This is not a matter in dispute between the parties. He has a very limited recollection. Much of what he has said depended on what he had been told by others. His evidence was replete with inconsistencies and contradictions and in many respects it stands in stark conflict with evidence given by others. 14 At the time of the consultation, Mrs Camilleri (the plaintiff's wife) had part-time employment working about three hours per day. During the week preceding the consultation, she had been feeling unwell (she may have been suffering from bronchitis). She decided to see the doctor. She had been a patient of the defendant for about ten years. She decided to attend the surgery on Saturday morning and suggested that the plaintiff also go along with her to see the doctor. He had complained of suffering from headache (which was one-sided the right front part of the head) from the preceding Wednesday. He had been taking Disprin and getting relief. However, the recurring headache kept coming back and Mrs Camilleri didn't think that he was well. He continued to carry on his normal activities. The evidence leads to the view that his headaches came and went and continued more or less at a constant level. He was no worse on Saturday morning. He did not complain to his wife about fever or vomiting. 15 Both attended the surgery on the Saturday morning. The grandson came with them. The plaintiff had the first consultation. Mrs Camilleri stayed in the waiting room. She went in to see the doctor with the grandson upon the plaintiff emerging from the surgery. As they passed, there was a brief exchange of conversation (see Transcript p 31). He told her that the doctor thinks he had a pinched nerve, he gave him an injection in the neck and that he felt "not real good". She saw that he had been given Mersyndol (four tablets). He went outside to sit in the car. He did the driving both to and from the surgery. 16 Her evidence was that she noticed nothing odd about his mental state and that he appeared to be normal. On the Saturday morning, he was quite good. He did not appear to have gone haywire after seeing the defendant. The injection gave him relief for a few hours. 17 Following the consultation, after going to the chemist and doing some shopping, they returned home. They had a meal and then sat down to watch television. After about an hour, he fell asleep. She was feeling unwell and was being agitated by the hyperactivity of the grandson. At some time during the day, he took at least certain of the tablets. 18 She decided to take the grandson to a nearby house where both her mother and sister live. Shortly after her arrival, her sister decided that Mrs Camilleri should be taken to hospital. She was then taken to the Bathurst Hospital by her sister. She was at the hospital for about 4 hours. She underwent treatment, she had an X-ray and was given medication (including tablets to control vomiting). Whilst she was at the hospital, there was an encounter with the defendant and some conversation took place. 19 The plaintiff, after being advised by her sister that his wife was at the hospital, came to the hospital. Unfortunately, he arrived after she had departed from it. 20 She left the hospital about 4 – 4.30 pm. She was driven to her sister's place by her sister. The plaintiff arrived at that place shortly thereafter. He had driven his car. She was driven home by the plaintiff about 6.00 pm. They had another meal and both went to bed early. He went to bed about 8.00 pm. 21 He started to vomit about 8.30 pm (and vomited about six times over a period of about three hours). At about 11.00 pm, he adopted her suggestion that he take a tablet which had been given to her at the hospital to control her vomiting. It stopped the vomiting and he fell asleep. She sat in front of the television and fell asleep. She was woken up by a bang and found the plaintiff on the bedroom floor fitting. He did not seem to be coherent. 22 There is material to suggest that, during the afternoon, both prior to his arrival at the hospital, and thereafter, the plaintiff had experienced certain symptoms. Exhibit C records what the defendant had been told at the hospital. The notes refer to matters such as the plaintiff being quite unwell, global severe headache and vomiting. There is evidence from Mrs Camilleri as to his condition as seen at her sister's place. She said that he wasn't well, he had a very bad headache and that all he wanted to do was to pick her up, go back home and go to bed. He was seen holding both hands on the top of his head. 23 It is common ground that largely Mrs Camilleri should be accepted as a credible and reliable witness. 24 Apart from the evidence he gave himself and that of his wife, the plaintiff also called Drs Fisher and Kelly. Dr Fisher is a general practitioner who has prepared two reports. Both suffered from admissibility problems (inter alia the reports did not disclose the reasoning process upon which the opinions were founded). There was no ultimate opposition to the plaintiff being given leave to adduce supplementary oral evidence to remedy the problems. 25 Dr Fisher was given access to the defendant's records (Exhibit C). It contains the clinical notes. The clinical notes and the subsequent report prepared by the defendant (Exhibit A) show the history that was elicited from the plaintiff and the tests that were undertaken by the defendant for the purposes of excluding the possibility of a serious condition. The duration of the consultation may have been in the order of 15 – 20 minutes. 26 Dr Fisher took the view that on the material contained in those records he would not be able to diagnose meningitis. Further, he took the view that the material contained in the notes did not eliminate bacterial meningitis. He said that the effect of the injection was to hasten the spread of an infection. 27 He took the view that the notes were insufficient to make a diagnosis (other than non-specific headache) and that there were a number of other things that he wanted to know. There were signs that could be associated with migraine or the like. He considered that the diagnosis of occipital neuralgia did not accommodate all of the complaints. He accepted that the headache could have been caused by a combination of factors (including occipital neuralgia). Also, he considered that the ordering of a blood count or something of that nature would be helpful. 28 He gave this evidence in chief:- "Q. What would you have to do to eliminate it? A. I believe that when you have a patient who presents with headache one needs to, and if you feel that the patient is not terribly sick, then you have to warn the patient that if that headache increases or there is an increase in vomiting or they get an increase in fever or anything of that nature, then they should seek immediate medical attention and that means immediate because you do not know what the causation of the headache can be." 29 In passing, it may be observed that the effect of this view is that such a warning is required whenever a patient complains of a headache and presents as not terribly sick. 30 Dr Fisher conceded that tests undertaken by the defendant were those commonly performed to exclude serious cause for the plaintiff's complaints of headache. It was conceded that at the time of the consultation the classic triad of fever, neck stiffness and altered mental state were absent. It was further conceded that there were signs that were inconsistent with the plaintiff having then had meningitis (inter alia the headaches had continued at a more or less uniform level and tenderness of the right greater occipital nerve). 31 Dr Fisher conceded that he was unable to identify the precise time when meningitis may have been contracted. He conceded that it may well have been contracted after the consultation and later during the same day. However, he preferred the view the contraction was more gradual. There seems to be no dispute that the meningitis contracted by the plaintiff was that which was regarded as being fulminant (as opposed to insidious or acute). Dr Fisher favoured the view that it may have started off as being insidious and then quickly turning to fulminant meningitis. 32 He regarded the contracting of meningitis as having taken place when there was infection of the meninges. He gave evidence of his experience as to the rapid progress of fulminant meningitis. His view was that the quicker the treatment given after the emergence of symptoms, the better chance there was of recovery. 33 He agreed with the views of Professor Tapsall in the areas of pathology and microbiology. 34 Dr Kelly was also a general practitioner (for 38 years). He also prepared two reports. A substantial part of the report dated 27 November 2001 was rejected. A part of the report dated 2 July 2002 was also rejected. The admissible material became Exhibit G. Dr Kelly was permitted to give some supplementary oral evidence concerning the alternative issue. 35 He took the view that the history given to the defendant could be consistent with a case of a serious condition. He did not believe that the headache was caused by occipital neuralgia. He agreed that it could have been a headache of some other non-serious origin. He accepted the proposition that the cause may never be now known. 36 He gave this evidence:- "Q. In the case of symptom complex of headache over the right frontal region, of one occasion of vomiting, of sore throat, ear-ache and fever, which might be serious or might not be, what specific warning or advice would you give in relation to that condition? A. You would tell the patient that if those symptoms which had occurred on one occasion, such as the vomiting, re-occurred or if the headache became worse or if the patient became unwell in any other aspect, that the patient should contact you. …………………………………………. Q. Would it be necessary to give advice in any time frame in relation to that? A. Yes. Q. What advice would be necessary to give in relation to a time frame? A. That the patient ought contact the practitioner when one or other of these problems previously mentioned had occurred. …………………………………………… Q. Would it be consistent with proper professional practice as a general practitioner to give any supplementary advice in the event that there was difficulty experienced in contacting the doctor? A. Yes. Q. What would that advice be? A. To contact alternate medical advice; presumably in a situation such as this patient was in, the local base hospital. ………………………………….." 37 In some respects, the evidence given by Dr Kelly during his cross-examination seemed to have its inconsistencies. One view expressed was that the plaintiff was not clinically diagnosable as having meningitis at the time of the consultation. It was somewhat unclear as to whether or not he took the view that the plaintiff had some precursor to meningitis at the time of the consultation or in fact had some insidious form of meningitis at that time. As an expert and as a witness, I did not find him to be impressive. 38 These considerations need not be pursued. As was the case with the evidence of Dr Fisher, it later became common ground that the evidence of Professor Tapsall should be preferred to that of either Dr Fisher or Dr Kelly. Both of these two general practitioners gave evidence that was erroneous. Both gave evidence which was not to me persuasive. 39 At the conclusion of the case for the plaintiff, counsel informed the court that the plaintiff's sister-in-law would not be called and advanced six reasons why she could not be called. Following the making of that statement, counsel for the defendant informed the court that he would not be taking any Jones v Dunkel point by reason of the failure to call her. 40 The defendant was the first witness in his own case. He has been a general practitioner for about 25 years. His recollection of the consultation largely depended on his notes. The notes were elaborated in the subsequent report. He recorded what he regarded as the significant or positive symptoms. It was the headaches that caused the plaintiff to see him. He undertook various tests for the purpose of excluding any serious cause for the complaints. The complaints (other than headache) appear to have been elicited following questioning from the defendant. 41 The report prepared by the Defendant on 27July 2000 contained the following:- "He gave a history of having had a headache for the past four days. He said the headache was over the right front part of his head, and was throbbing in nature. On further questioning he admitted to having vomited once, a sore throat and earache and fever. He denied any prior serious ill health, although he did day (sic) he had had a similar headache in the past (about 6 months ago) and had consulted the "Company Doctor" about it. He said he was told he had an infection, but was vague about its nature or any treatment he was given at the time. Examination revealed his BP to be 120/80 mm Hg, pulse rate 72/min and regular, normal temperature (37 C) and his neck was supple. I could not find any abnormality on examination of his eyes or fundi, nor in his ears, nose or throat. I did note some tenderness of his right greater occipital nerve. He was not particularly distressed, and he did not appear to be very ill at this time. I made a provisional diagnosis of neuralgia of the right greater occipital nerve. His treatment consisted of infiltration of the tissue around the nerve with Depo-medrol and local anaesthetic, after which he reported some relief of his headache. I prescribed follow up analgaesic (sic) tablets and suggested he have two days off." 42 Because of evidentiary shortcomings, it may be that there is some uncertainty as to what symptoms were being experienced by the plaintiff at the time of the consultation. His limited recollection extends only to the headaches and neck pain. The evidence of his wife mentions complaint of headache only. The material from the defendant suggests the view that the plaintiff was currently suffering from headache and tenderness in the right greater occipital nerve only. 43 The defendant was the subject of a lengthy cross-examination. Despite this, save as to perhaps for one matter, when it came to submissions it was not said that he was an unreliable witness or that his evidence should not be accepted. There was no attack on his credibility. The approach taken by the plaintiff is to treat the defendant as a competent country general practitioner who committed a casual act of negligence. 44 Prior to the hearing, he had provided answers to interrogatories. The verifying affidavit was sworn on 11 May 2002. 45 There were differences between what was said in his evidence and what had been provided by way of answer to the interrogatories. 46 One matter concerned the history given by the plaintiff. In the interrogatories, he had given an answer to the effect that the plaintiff had no fever and no diarrhoea. At the outset of his evidence, he sought to correct what he said was an error which was said to arise from a later reading of his notes. The clinical notes contain the following:- "Fever no D."