New South Wales Supreme Court CITATION : Suzanne Hardwick v Dr Patrick McSwiney [2009] NSWSC 522 HEARING DATE(S) : 20/04/09 JUDGMENT DATE : 1 May 2009 JUDGMENT OF : Patten AJ at 1 DECISION : See paragraph 37 LEGISLATION CITED : Limitation Act 1969 CASES CITED : Gett v Tabet [2009] NSWCA 76; Wardley Australia Ltd v Western Australia [1992]175 CCR 514; Suzanne Hardwick - Plaintiff PARTIES : Dr Patrick McSwiney - First Defendant FILE NUMBER(S) : SC 16608 of 2008 COUNSEL : Mr J Anderson - Plaintiff Mr D S Weinberger - First and Second Defendant SOLICITORS : King Street Lawyers - Plaintiff P Tsaoudis - Defendant LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST Patten AJ 1 May 2009 No: 16608 of 2008 Suzanne Hardwick - Plaintiff v Dr Patrick F McSwiney – First Defendant Dr Herbie Chee – Second Defendant JUDGMENT 1 This is a summons whereby the Plaintiff (Mrs Hardwick) seeks an order pursuant to S60 C or alternatively S60 G of the Limitation Act (the Act), extending the time to commence proceedings against the Defendants, both of whom at relevant times were medical practitioners. The First Defendant (Dr McSwiney) who, according to his letterhead, was a Fellow of the Royal College of Surgeons and a Fellow of the Royal Australian College of Surgeons, was described in evidence before me as an ear, nose and throat specialist. The Second Defendant (Dr Chee) was a general practitioner at Ulladulla near where Mrs Hardwick lived at Mollymook. 2 The relevant facts are that in November 1992, Mrs Hardwick, a registered nurse, consulted Dr Chee, her then general practitioner, regarding "an ulcer on my tongue which was not healing". He referred her to Dr McSwiney whom she first consulted on 8 January 1993. He performed what she believed was "a biopsy on the right side of my tongue". 3 She consulted Dr McSwiney about a year later in February 1994 when he again performed what she understood to be "a biopsy". 4 Although, according to Mrs Hardwick's evidence, she did not see any biopsy report until she asked Dr Chee for copies in March 2008, the pathology report of Dr Alistair Lochhead dated 2 February 1994 is before the court as are four letters from Dr McSwiney to Dr Chee respectively dated 17 February 1993, 22 November 1993, 15 February 1994 and 12 September 1996. The substance of those letters, I infer, was conveyed by Dr Chee to Mrs Hardwick. 5 Dr Lochhead's histopathology report relevantly read: "Clinical details: "Lesion on tongue" Macroscopic appearance: Specimen consists of a mass 12 x 10 x5mm with mucosa reflected over one surface. Microscopic appearance: This biopsy from the tongue contains moderately dysplastic squamous epithelium. In its worst area the dysplastic surface epithelium extends to both lateral margins of the biopsy. Summary: Tongue – Epithelial Dysplasia." 6 I also set out omitting formal parts the four letters from Dr McSwiney to Dr Chee: 17 February 1993 "Thank you very much for asking me to see Mrs Hardwick, who has noticed an ulcerated area on the right side of her tongue for 8 months. On examination, she has an area of leukoplaki on the right side of her tongue. I will be organising her admission for its excision." 22 November 1993 "I reviewed Mrs Hardwick again on 15 November. Her tongue is still feeling sore and clinical examination showed once again, an area on the right border of the tongue just adjacent to her second mila, which was denuded of epithelium and was ulcerated in the centre. I think this is probably caused by trauma and I have asked her to see her dentist in this regard and I will be organising her admission to hospital for biopsic excision of the area." 15 February 1994 "I biopsied the lesion on this lady's tongue on 2 nd February. I enclose a copy of the histology report. She obviously requires to be kept under review and I have organised to see her again in 4 months time." 12 September 1996 "Thank you very much for asking me to see Mrs Hardwick, who has found that the left side of her tongue is still tender with hot food such as chillies. Clinical examination failed to reveal any abnormality and I have reassured her in this regard." 7 Mrs Hardwick claimed that neither Dr McSwiney nor Dr Chee advised her of any need to be regularly reviewed. Nonetheless, for a time following the first consultation, she presented herself to Dr McSwiney for review, consulting him, as it appears, in November 1993, February 1994 and September 1996. According to her evidence, on the earliest of these occasions, he told her "there is not much there to see", and on the latest "There is nothing to worry about. There is no need for a further biopsy". 8 There is no evidence as to any consultation by the Plaintiff with Dr Chee after February 1994. According to the evidence she gave to Mr D S Weinberger, counsel for the Defendants, during cross-examination, he ceased to be her general practitioner about 1995, although he was the recipient of Dr McSwiney's letter of 12 September 1996 which suggests that he was then still her general practitioner. 9 After a gap of about 9 years, Mrs Hardwick consulted Dr McSwiney again on 13 May 2005. Following examination, he suggested a further biopsy but due to his unavailability she actually came under the care of a Dr Sheridan who ultimately performed a partial glossectomy on 14 June 2005. The copy of his notes before the Court is illegible but they embody the report of Dr Fiona Bonar dated 14 June 2005: "Sections of the entire specimen confirms the presence of a fragment of tongue comprising mucosa, submucosa and underlying skeletal muscle and fat. Centrally, there is an ulcerated extensively invasive moderately differentiated squamous cell carcinoma extending deep into the muscle to a measured depth of 7.3mm. The tumour has a mixed pushing and infiltrative margin and foci of perineural infiltration at the edges can be seen. Tumour extends deeply into the tissue where it is bordered centrally by a very thin layer of skeletal muscle only measuring 0.3mm. In addition, tumour extends to within 0.5mm of the inked deep medial margin. Posteriorly, the tumour peters out extending very close to but not quite as far as the posterior margin. Elsewhere, within the adjacent oral mucosa, a degree of squamous hyperplasia with basal dysplasia is present, amounting to that of moderate dysplasia. This extends widely along the lateral margin in particular, including the posterior region." 10 After surgery, she came under the care of a radiation oncologist, Dr Raj Jagavkar who about July 2006 told her that her condition would not improve further and in particular that she would never again be able to salivate. It was then that she decided to seek legal advice, although she admitted to Mr Weinberger in cross-examination that at the time of the glossectomy she had in the back of her mind that Dr McSwiney may have missed something or not treated her properly. 11 Initially she consulted Mr Phil Carey of Nowra but after about 6 months he told her that he could not act as his wife worked as a receptionist for Dr McSwiney. He promised to "arrange for my papers" to be forwarded to other solicitors. Unfortunately, there was then a delay until about July 2007, when Mr Carey told her that he had referred the case to Ms Wendy Kleyn, a solicitor employed by her present solicitors, King Street Lawyers. In the meantime, Mrs Hardwick said that she telephoned Mr Carey about eight times. 12 Mrs Hardwick promptly established contact with Ms Kleyn but further delay occurred while Ms Kleyn sought to obtain papers from Mr Carey. The nature of those papers does not appear from the evidence.. 13 However, in March 2008, Mrs Hardwick saw Dr Chee and obtained a copy of the pathology report dated 2 February 1994 quoted above. She was also, as arranged by her solicitors, examined on 8 April 2008 by Dr John Seymour, who provided a report dated 23 October 2008 to the solicitors. 14 The Summons before me was filed on 15 December 2008. 15 The sequelae of the partial glossectomy and the radiotherapy which followed it are described in Mrs Hardwick's affidavit sworn 17 December 2008: "4. As a result of my treatment I have lost all of my teeth. I am informed by Dr Peter Foltyn, a dentist at St Vincent's hospital, that my bone is not strong enough to withstand dental implants. I am told that for the rest of my life I will be dependant upon dentures fixed to my guns with adhesive. 5. Since undergoing the radiotherapy I have also suffered xerostomia (dry mouth). 6. During the period 15 August 2005 – July 2006, I was reviewed periodically by Dr Raj Jagavkar, my radiation oncologist. During that period I Iost approximately 48kgs. I was admitted to Mollymook Hospital in September/October suffering malnutrition. I was fed through a naso-gastric tube. 7. To this day I am unable to chew any food. My diet consist only of mushy foods such as porridge and yoghurt. I do not salivate and I am dependant upon the use of pharmaceutical artificial saliva products." 16 Mrs Hardwick also asserted in the affidavit referred to that in early 2005, her illness required her to resign her employment as a registered nurse. Otherwise she had not intended to retire until she attained the age of 65 in August 2011. 17 I now turn to the medico legal evidence provided by Dr Seymour, "Ear Nose and Throat Medico Legal Consultant", who told Mr J Anderson, counsel for Mrs Hardwick, that he has practiced as an ear, nose, and throat surgeon for 38 years but as a medico legal consultant for about the last 20 years. His report was tendered and he gave oral evidence before being cross-examined by Mr Weinberger. The report contained these paragraphs: "On 02.02.94 the biopsy showed significant dysplasia of the squamous-cell epithelioma, which was commented on by the pathologist. Dysplasia is an ominous sign in early stages of carcinoma of the tongue. Carcinoma of the tongue is not a common condition seen in general ENT practice. Consequently the general ENT surgeon would have little experience in the management of these cases, particularly provincial surgeons. This is confirmed by the history in this case. When the applicant consulted a head and neck cancer surgeon whose experience with tongue malignancy would be great, within a period of two to three weeks the condition was correctly treated with lasting results and minimal after effects." 18 In passages of the report earlier than those I have quoted, Dr Seymour referred to what he described as the "inadequate excision" by Dr McSwiney. I rejected the form of these passages but gave Mr Anderson leave to lead evidence from Dr Seymour on the subject. There were these exchanges: "Q. Mr Anderson: In your experience in 1994 were there systems adopted by your medical colleagues following up a patient such as one in Mrs Hardwick's case? A. Yes there would have been. Q. How would that have worked? A. You have to come back - this is a potentially malignant condition and you have to come back for regular inspections every three or four months. Q. For how long? A. Indefinitely. Q. When you said that, and this is the first dot point on the second page of your report, "The history of the disease in this case indicates that the initial excision may have been inadequate", what was the initial excision to which you were referring? A. I was referring to the second report where it said-- WEINBERGER: I object to that. Your Honour struck out that bullet point. HIS HONOUR: The leave that I gave and this is perhaps only a shorthand way of dong it but the leave I gave was to deal with that point I think Mr Weinberger. WEINBERGER: Certainly your Honour. ANDERSON Q. What was the initial excision to which you were referring? A. I am referring to 13 January, the one which was reported on 13 January 1993. Q. I see. The earlier pathology report? A. The earlier one. Q. Why do you say it was inadequate? A. He did a second operation, didn't he? Q. Yes? A. Yes, he did a second operation. Well, he must have thought it was inadequate too. HIS HONOUR. Q. When you talk about operation, you are talking about a biopsy? A. Yes, it would be a biopsy excision, it wouldn't be a biopsy. With a lesion like that you would excise it and then section it. You wouldn't just take a piece out of it because there it is in front of you to remove and I mean do you want me to expand on that? HIS HONOUR: I might but perhaps continue with Mr Anderson. ANDERSON: I am happy if your Honour wishes to. HIS HONOUR. Q. The question I wanted to ask was the biopsy report in February 1993 or 1994 did not indicate anything that immediately required treatment. It merely needed watching? A. After all when - what you consider an adequate biopsy is one in which there is a free margin and in this case it extended to the lateral margins of the biopsy. That means there was no clear evidence that it had been excised completely. Unless you have clear tissue around it, you have no clear evidence that the tumour has been adequately excised. Q. Perhaps I don't understand this. I understood that the biopsies were merely a means of testing in effect what was there, not excising? A. No in this type of lesion it would be what was called an excision biopsy so you excise the lesion and you get it examined to see if it was malignant or not. You wouldn't just biopsy a lesion like this because of its accessibility and its readiness and ease of excision. HIS HONOUR: I see. WITNESS: You see there is a biopsy in which you may have a tumour in the breast which you are not sure what it is but you don't want to open up so you put in a needle and do a needle biopsy but if there is an obvious looking cancer of the skin, you wouldn't just take a little piece out. You would excise the whole lesion with an adequate margin and send that for biopsy. HIS HONOUR Q. You say the report itself indicates that that wasn't done? A. The report itself says that. It says that it extended to the margins and you don't know whether there was still cancer. Q. Beyond that? A. Leukoplakia left because you haven't got around it. There is no evidence it was excised properly. HIS HONOUR: We certainly were at cross purposes so far as I was concerned. I was thinking of perhaps the needle biopsy situation. WITNESS: Not in this sort of situation. It wouldn't be appropriate, not where there is a surface lesion on the skin or on the tongue particularly. HIS HONOUR Q. What was present according to the biopsy report was itself something that was required to be removed? A. No, I think that if you had - I think that it would worry you and you should get a second - I would have got a second opinion on this from someone who was more experienced than myself and I think maybe a reasonable thing to do in those circumstances would be to carry out regular inspections but they have to go on almost indefinitely if you took that course but if you took the other course of having a second consultation with someone more experienced. I mean I was in ear nose and throat practice for 38 years and I wouldn't have seen two cases. I would have seen about two cases of leukoplakia of the tongue so my experience of leukoplakia of the tongue would be very poor and if it had have been me, I would have got a second opinion from a head and neck surgeon. Head and neck surgeons are specialists who specialise in malignancy of the head and neck. Their whole work is malignancy of the head and neck and most of them get an enormous amount of experience in all aspects of head and neck cancer which is not the experience of an ear nose and throat surgeon, particularly leukoplakia of the tongue. It is not a common condition. ANDERSON Q. Is it a fair summary of your opinion that if the pathology report of February 1994 had indicated that the lesion was completely removed in that there were clear margins around the specimen, then the ENT specialist would have been justified in-- A. It would have been excised. There would have been clear evidence you had excised all of this. Q. In those circumstances do I understand you to say to the court that in those circumstances the practitioner would have been justified in reviewing the patient a couple of times perhaps and then being satisfied that-- A. He would have to impress upon her that if there was any problem, if she had any worry or she got pain or enlargement to come back and see him. " 19 Paragraphs 5 and 12 of the draft Statement of Claim respectively pleaded the same duty and breach of duty allegedly owed and breached by each defendant: "5. In the circumstances the defendants owed to the plaintiff a duty to exercise reasonable skill and care in relation to the provision of medical advice to, and the treatment of, the plaintiff. …………… 12. In breach of the duty alleged in paragraph 4 (sic 5) hereof, the defendants and each of them: (a) failed to advise the plaintiff of the squamous dysplasia reported at the histopathological examination; (b) failed to treat the plaintiff adequately or at all in relation to the removal of the pre-cancerous lesion on the plaintiff's tongue; (c) failed to refer the plaintiff for appropriate specialist treatment following the discovery of the development of dysplastic squamous epithelium on the plaintiff's tongue; and (d) failed to arrange for any or appropriate review of the plaintiff to ascertain whether the condition was progressing." 20 It follows from what I have said above that, in Dr Seymour's opinion, Dr McSwiney should have excised all of the pre-cancerous cells on Mrs Hardwick's tongue; should have strongly advised and sought to implement a long term regime of regular review; and should have referred her to a head and neck surgeon. 21 As no evidence was adduced in the case on behalf of either Dr McSwiney or Dr Chee, I am perforce obliged to consider the matter in light of the evidence of Mrs Hardwick and Dr Seymour alone. The evidence, in my view, establishes, at least, a prima facie case of breach of duty of care against Dr McSwiney. There was, however, in my opinion, no such case established against Dr Chee, there being no evidence that he was consulted by Mrs Hardwick regarding her tongue after September 1996 at the latest. As it seems to me, he referred her to an apparently appropriate specialist and was entitled to rely on the reports given to him in the absence of a contrary indication. 22 There was also, I think, prima facie evidence of a causative link between Dr McSwiney's breach of duty and Mrs Hardwick's loss in that, according to Dr Seymour, on the probabilities, effective treatment would have prevented cancerous growth altogether, or at least led to less significant surgery with a corresponding reduction in sequelae. 23 The provisions of the Civil Liability Act apply to Mrs Hardwick's cause of action against Dr McSwiney. In light of the Court of Appeal decision in Gett v Tabet [2009] NSWCA 76 it seems to me that she is not entitled to compensation on the basis that Dr McSwiney's negligence caused her to lose the chance of a better medical outcome, but rather for the consequences causally connected to the negligence, which have or will actually materialise. The distinction is important as will hereafter appear. 24 Relevantly, S18 A of the Act is in the following terms: "18A Personal injury (1) This section applies to a cause of action , founded on negligence, nuisance or breach of duty , for damages for personal injury , but does not apply to: (a) a cause of action arising under the Compensation to Relatives Act 1897 , or (b) a cause of action that accrued before 1 September 1990, or (c) a cause of action to which Division 6 applies. Note: Division 6 provides for the limitation period for non-motor accident actions for death or personal injury resulting from an incident that occurs on or after the commencement of that Division. (2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. " 25 Mrs Hardwick's cause of action was complete and first accrued when damage was actually suffered by her (Wardley Australia Ltd v Western Australia [1992] 175 CCR 514). Mr Anderson submitted that this occurred when the partial glossectomy was performed in June 2005. However, as a matter of common sense, I do not think that can be right. Having regard to the size of the tumour recorded by Dr Bonar on 14 June 2005, it is, I think, reasonable to infer that the squamous cell epithelioma identified by Dr McSwiney in 1993 turned cancerous sometime between September 1996 and June 2005, thus constituting actual damage suffered by Mrs Hardwick. This may be a matter for evidence, but I think it is appropriate to assume that the cancer was present by about the mid point, no later than the end of 2000. On that basis the concluding words of S60 C(2) prevent the making of an order with any utilitarian effect under the section. 26 On any basis, the act or omissions relied upon by Mrs Hardwick occurred before the commencement on 6 December 2002 of the Civil Liability Amendment (Personal Responsibility) Act 2002 and thus S18 A of the Act rather than Division 6 applies. 27 By her original summons, Mrs Hardwick sought relief under S60 C of the Act but during the hearing I gave leave for her also to rely on S60 G. 28 That section provides: 60G Ordinary action (including surviving action ) (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty , for damages for personal injury , but does not apply to a cause of action arising under the Compensation to Relatives Act 1897 . (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. " 29 S60 I forbids the court from making an order under S60 G unless it is satisfied that: "(a) the plaintiff : (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii). (2) ………………………………………………." 30 In my view, Mrs Hardwick has established that she was unaware until June 2005 of the existence, nature, and extent of the relevant personal injury, namely the carcinoma removed in the partial glossectomy, and that she was unaware of the connection between the carcinoma and Dr McSwiney's act or omission, until she received Dr Seymour's report of October 2008. As indicated above, this was after the expiration of the relevant limitation period, which I have assumed as the end of 2003. In my view, there was no earlier time when proceedings might reasonably have been instituted. 31 This application was thus made within three years after Mrs Hardwick became aware of all three matters listed in paragraph (a) (i) – (iii) of S60 I. It was also, in my view, made within three years after she ought to have become aware of those matters. The need for the partial glossectomy created a suspicion that something was wrong with her previous treatment but that suspicion was far from constituting awareness. It was then, in my view, reasonable to delay the investigation of her suspicion until the radiotherapy treatment was concluded and she was informed by Dr Jagavkar that some of her symptoms were permanent. To an extent she was then let down by her lawyers' delays and by the delay of Dr Seymour in preparing his opinion. Nonetheless, she seems to have done what she reasonably could to advance the process by communicating frequently with both Mr Carey and Ms Kleyn. 32 There remains the question whether it is just and reasonable to extend the limitation period. Central to that question is whether she has shown that there can be a fair trial of her action. It seems to me that she has discharged this obligation. No evidence of actual prejudice was advanced by the defendants, although there is some presumptive prejudice. As I propose to dismiss the application so far as Dr Chee is concerned, I only need consider prejudice from the view point of Dr McSwiney. 33 Although Dr McSwiney's recollection of his treatment of Mrs Hardwick is likely to be imperfect, he presumably has his notes. Most significantly, his letters to Dr Chee, which are available, clearly evidence his opinions at the time and his prognosis. It is not in dispute that he was not consulted again for nearly nine years, a circumstance which, I imagine, may loom large in this case. 34 In my opinion, it is just and reasonable to extend time for bringing proceedings against Dr McSwiney as sought under S60 G of the Act and I will do so for a period of one month after the date of this judgment. 35 It is appropriate that I add that were it not for my conclusion that the time has expired for the making of an order under S60 C, I would have granted Mrs Hardwick relief under that section. My conclusions in relation to the matters required to be considered under S60 E appear earlier in these reasons. 36 In the circumstances of this case, I think that costs as between Mrs Hardwick and Dr McSwiney should be costs in the cause. Mrs Hardwick should pay the costs of Dr Chee to the extent they are separate from and additional to the costs incurred by Dr McSwiney. In case any difficulty arises in relation to costs, I will grant leave to apply. 37 I make these orders: 1. I extend until 1 June 2009 the limitation period for the cause of action pleaded against Dr McSwiney in the draft Statement of Claim, annexure K to the affidavit of Suzanne Hardwick sworn herein on 17 December 2008. 2. I dismiss the summons against Dr Chee. 3. I order that the costs of the summons as between Mrs Hardwick and Dr McSwiney be costs in the cause. 4. I order Mrs Hardwick to pay the costs of Dr Chee in so far as they are separate from and additional to the costs payable by Dr McSwiney. 5. Liberty to all parties to apply on 7 days notice. 6. Exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.