In Issue 9 of Pulse, we reported on the Queensland Court of Appeal decision of Mules v Ferguson, 1 in which the Court of Appeal awarded Nancy Mules (patient) $6.7 million in damages against her general practitioner, Dr Ferguson (doctor).

The Court found that grievous injuries attributable to cryptococcal meningitis arose from the doctor’s failure to refer the patient for specialist examination at an earlier point in time, therefore delaying diagnosis and treatment of the condition. The judgment represents the highest personal injury damages award in Queensland’s history.

The doctor subsequently applied for special leave to the High Court to appeal the decision.2 In this article, we review the case and the ultimate outcome in the High Court.

Background

Cryptococcal meningitis is an extremely rare infection with only 20 cases per million people occurring each year. The infection originates in the lung, spreading through the bloodstream to the brain, causing meningitis. Symptoms typically develop over a two to four week period and diagnosis during the initial phase of symptoms is highly unusual, as early symptoms present as a low-grade inflammatory illness and are unlikely to be attributed to such a rare meningeal infection.

In the patient’s case, whilst the condition was ultimately diagnosed in time for life preserving treatment to be effective, the treatment was too late to prevent irreversible neurological harm. The patient was rendered deaf and blind by the condition and later commenced proceedings against the doctor.

In early September 2008, the patient presented to a chiropractor for treatment on three occasions over six days, reporting headaches and a sore neck. On 12 September, she consulted the doctor who advised her to continue with over-the-counter analgesia and to continue with her chiropractic treatment.

The patient attended on her chiropractor again that day and on a further two occasions before consulting the doctor again on 18 September 2008. The doctor ordered a CT scan on that date which demonstrated degeneration of the cervical spine. The doctor reviewed the scan with the patient on 19 September 2008 and diagnosed her problem as musculoskeletal.

The patient alleged that at the consultations on 18 and 19 September the doctor should have perceived a more sinister condition was involved and urgently referred her for specialist assessment. If referral had been made at that time, the patient claimed that her condition would have been diagnosed and treated in time to prevent her grievous injuries.

As it occurred, the patient continued to decline until she was conveyed by ambulance to Cairns Base Hospital on 24 September 2008. However, the patient was discharged following examination and some routine tests. The doctor re-examined the patient on 25 September 2008 by which time she presented in markedly worse health and the doctor arranged her immediate admission to hospital. The correct diagnosis was made the following day 

Decision and Appeal

The Supreme Court held that the doctor 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. However, the Court concluded that this breach did not cause the patient’s injuries, as such an examination would not have detected anything to prompt the general practitioner to respond differently.

The Court also found that the general practitioner had acted in a way which was widely accepted by peer professional opinion. Despite this finding, the Court provided an assessment of the patient’s damages, arriving at a figure of $6,727,776.04.

The patient then took her case to the Queensland Court of Appeal, which overturned the Supreme Court’s judgment. It found that the Patient would have demonstrated restricted neck movements when she attended upon her general practitioner on 18 and 19 September if the doctor had performed a proper examination at that time.

Specifically, the Court considered that such restricted neck movements would have been suggestive of meningeal irritation. It was the court’s opinion that referral to a specialist on 18 or 19 September would have, on balance, likely resulted in diagnosis and treatment by 23 September, in time to prevent the grievous neurological injuries from developing.

The Court, in determining that the peer professional defence did not apply, held that the general practitioner’s experts (two experienced general practitioners) had based their opinions on assumptions which were not entirely consistent with the facts as found by the trial judge, meaning that the doctor had failed to establish that her conduct was consistent with competent professional practice.

The High Court’s decision3

The doctor applied for special leave to appeal before the High Court of Australia, arguing that the evidence did not support a finding that an examination of the patient’s neck on 18 or 19 September would have demonstrated that a more sinister condition was developing.

The doctor asserted that as a physical manipulation by a physiotherapist on 23 September did not encounter an extraordinary or severe reaction, it was unlikely that if she had performed a physical examination of the patient’s neck four or five days earlier it would have provoked a response suggestive of meningism.

Whilst the Court of Appeal was aware of the evidence provided by the physiotherapist at trial, it was argued that it failed to properly recognise one of the natural advantages of the trial judge, namely observation of what the physiotherapist demonstrated at the time of giving evidence.

It was also suggested that the Queensland Court of Appeal had jumped from the “possibility” that the doctor may have found neck stiffness to a finding that diagnosis and treatment would have occurred, without clear evidence that the “possibility” was, in fact, a “probability”.

The patient argued that there was sufficient presentation of symptoms which required further exploration by physical examination. Had a full range of movement test been conducted it would have revealed a patient who was incapable of performing the chin to chest movement, indicative of meningitis, and resulting in a referral by the doctor to someone who could diagnose it.

The High Court found that there was no question of principle in this case and special leave was refused with costs.

Comment

The High Court’s refusal to grant leave reaffirms the position that defendant practitioners must ensure that any expert to be called (and relied upon for the purpose of a peer professional opinion) has provided an opinion based on a factual version of events that is consistent with the facts accepted by the Court.