Goran Petrovic v Dr Anthony Johnson [2017] NSWDC 205

District Court New South Wales

Medium Neutral Citation: Goran Petrovic v Dr Anthony Johnson [2017] NSWDC 205 Hearing dates: 5 June 2017; 6 June 2017; 7 June 2017; 14 June 2017; 15 June 2017 Date of orders: 04 August 2017 Decision date: 04 August 2017 Jurisdiction: Civil Before: Montgomery DCJ Decision: (1) Judgment for the defendant against the plaintiff

(2) Plaintiff to pay defendant's costs Catchwords: medical negligence – ss 5B, 5D and 5O Civil Liability Act 2012 – referral for surgery – differential diagnosis lung cancer Legislation Cited: Civil Liability Act 2012 Cases Cited: Jones v Dunkel (1959) 101 CLR 298; Badenach v Calvert [2016] HCA 18; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 Category: Principal judgment Parties: Mr Goran Petrovic (Plaintiff) Dr Anthony Johnson (Defendant) Representation: Counsel: Mr Chris Micali (Plaintiff) Mr Mark Walsh SC (Defendant)

Solicitors: Premier Law (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2015/00060269 Publication restriction: None

Judgment

Introduction 1. Mr Goran Petrovic (the plaintiff) sues the defendant for compensation for his loss alleged to have resulted from Dr Anthony Johnson's (the defendant's) negligent referral of the plaintiff to a specialist cardiothoracic surgeon (Associate Professor French). On the plaintiff's case he was referred by the defendant for surgery. 2. The defendant is a specialist respiratory thoracic physician the plaintiff consulted on 10, 17 and 19 July 2012 on referral from the plaintiff's general practitioner Dr Genua. The defendant referred the plaintiff to Associate Professor French, cardiothoracic surgeon, for treatment of a lung mass following the defendant's diagnosis of Stage II large cell lung cancer, based on clinical assessment and medical investigations performed up to 19 July 2012. 3. The plaintiff underwent left lower lobectomy and lymph node dissection surgery on 4 September 2012 performed by Associate Professor French. Post-surgery, analysis of the tissue dissected found that there was no cancer. 4. When commenced by Statement of Claim filed 26 February 2015, the proceedings named Associate Professor French as second defendant. The case was brought against both the defendant and Associate Professor French alleging, in general terms: negligently bringing the plaintiff to surgery removing part of his lung for treatment for cancer when in fact there was none. That central factual scenario was pleaded in part of the Statement of Claim as follows: 28. The Plaintiff did not, at any time prior to the Lobectomy, have a malignancy in his left lung. 29. At no time between 19 July 2012 and the Lobectomy did the First or Second Defendant inform the Plaintiff of a potential differential diagnosis. 30. At no time between 19 July 2012 and the Lobectomy did the First or Second Defendant inform the Plaintiff that the diagnosis of malignant lung tumour was uncertain. 31. At no time between 19 July 2012 and the Lobectomy did the First or Second Defendant inform the Plaintiff of the option to undergo further diagnostic tests before proceeding to the Lobectomy. 32. At no time between 19 July 2012 and the Lobectomy did the First or Second Defendant arrange a repeat fine needle aspiration biopsy. 33. At no time prior to the Lobectomy did the First or Second Defendant arrange a bronchoscopy. 34. At no time prior to the Lobectomy did the First or Second Defendant discuss the Plaintiff's situation at a multidisciplinary lung cancer meeting. 35. As a result of the negligence of the First and Second Defendant the Plaintiff has suffered injury. Particulars of Injury and Disability (a) Left lower Lobectomy performed unnecessarily; (b) Left-sided chest pain; (c) Shortness of breath; (d) Wheezing sounds when breathing. 36. As a result of the injuries and disabilities particularised, the Plaintiff has suffered and will continue to suffer, loss and damage. 37. At all material times the First and Second Defendants owed the Plaintiff a duty to exercise reasonable care and skill in providing advise and treatment to the Plaintiff. 38. The Plaintiff's injury, loss and damage were caused by the negligence of the First and Second Defendants. Particulars of Negligence [I observe that identical particulars are pleaded against the Defendant and Associate Professor French.] 39. The negligence by the First and Second Defendants was a necessary condition of the injury, loss and damage suffered by the Plaintiff. 40. But for the negligence of the First and Second Defendants the Plaintiff would not have undergone a Lobectomy. 1. On 4 June 2015 the plaintiff and Associate Professor French entered into a Consent Judgment finally determining the plaintiff's case against Associate Professor French in the following terms: 1. Judgment in favour of the second defendant with each party to bear their own costs. 1. In opening, plaintiff's counsel introduced the case as not one asking whether the defendant ought not have "at least at the early stages of the defendant's consideration of the case" identified lung cancer as a differential diagnosis; but rather whether or not the defendant should have on the basis of an early diagnosis of lung cancer, referred the plaintiff to surgery: Transcript Day 1, page 4, line 40. 1. Common expert opinion of specialist respiratory thoracic physicians who gave evidence by report and orally in a "hot tub", accepted the differential diagnoses of pneumonia and of lung cancer. Further that no investigations which might have been conducted would have guaranteed that the mass within the plaintiff's lung was not cancer.