In Mules v Ferguson1 , the Queensland Court of Appeal upheld an appeal by a patient claiming that a GP’s negligence led to a delayed diagnosis of cryptococcal meningitis which in turn caused her to become deaf and blind. Damages of $6.7m were awarded as a result.
The patient visited her GP in June 2008 complaining of facial flushing and dizziness. On 12, 18, 19 and 25 September, the patient again consulted the GP after experiencing worsening symptoms, including headaches and neck pain. On 26 September, the patient was referred to Cairns Base Hospital where she was diagnosed with cryptococcal meningitis - a rare infection. The patient brought a claim for damages against the GP alleging negligence in failing to make a timely diagnosis.
The primary judge found that the GP had failed to act with reasonable care and skill in not physically examining the patient’s neck or making further enquiries as to her previously reported symptoms in order to exclude cryptococcal meningitis. However, the trial judge concluded that this breach did not cause the patient’s injuries because such an examination and enquiry would not have detected anything to prompt the GP to respond differently.
The trial judge also found that the GP’s conduct was not negligent because it satisfied the ‘peer professional opinion’ defence contained in section 22 of the Civil Liability Act 2003 (Qld) (Act).2
Anticipating an appeal, the trial judge assessed the patient’s damages at $6,727,776.04 including the maximum ISV of $250,000.00 and future care of $4,333,785.46 (at the rate of $35.00/hr) with a 12% discount for contingencies.
By a 2:1 majority, the Queensland Court of Appeal upheld the patient’s appeal. The majority found that:
- There was evidence that the patient had restricted neck movements when she saw the GP and that had the GP exercised reasonable care and skill and performed a proper examination, neck stiffness would have been detected and this should have suggested meningeal irritation. This, combined with the patient’s medical history, should have resulted in a referral to a specialist on 18 or 19 September. With proper care, the patient would have been diagnosed and treated by 23 September and her grievous injuries probably prevented.
- The defence available under section 22 of the Act did not apply. The opinions of the experts (two experienced GPs who supported the GP), were based on assumptions which were not entirely consistent with the facts as found by the trial judge. In light of this, there was no evidence upon which the trial judge could have been satisfied that the GP had discharged her onus under section 22 of the Act concerning competent professional practice.
The Court of Appeal’s decision is likely to be of particular importance to defendant practitioners when contemplating pursuing a peer professional defence. It will be necessary to ensure that any expert called in support of such a defence is across the competing factual versions of events so that their opinion can be said to be based on the facts before the court at trial.