There have been a number of recent cases against hospitals and medical practitioners relating to alleged failures to diagnose and delayed diagnosis. Below, we discuss three recent cases from New South Wales and Western Australia.

Misdiagnosis of melanoma

Malcolm Coote died on 23 May 2012 from a metastatic melanoma. The melanoma was diagnosed on 16 March 2011 following a biopsy. Mr Coote first consulted Dr Kelly about pain and discomfort in his foot on 3 September 2009. Dr Kelly diagnosed a plantar wart which he treated with cryotherapy. Mr Coote went back to see Dr Kelly in 2009 and 2010.

Prior to his death, Mr Coote commenced proceedings against Dr Kelly1 for failing to diagnose the melanoma at an earlier time. Dr Kelly argued that at all times he had seen Mr Coote, he had followed normal diagnosis procedure and believed the lesion to be a wart due to its non-pigmented appearance.

The Court held that that Dr Kelly did not breach his duty of care in his diagnosis of a plantar wart instead of melanoma, because he acted in a manner that was widely accepted by peer professional opinion as competent professional practice.

The Court gave greater weight to Dr Kelly’s evidence, which was supported by contemporaneous notes, devoting a section of the judgment to the discussion of the fallibility of memory and the Court’s preference for more reliable material.

The Court found that even if there was a breach of duty, causation was not established by Mr Coote. All of the specialist experts said that it was not possible to say whether metastatic spread had taken place on any of the dates on which Dr Kelly saw Mr Coote.

Failure to diagnose PFO

In 2006, Mr Rothonis was referred to Mr Lattimore, cardiologist, following a CT scan which suggested Mr Rothonis had suffered a lacunar infarct (an area of dead brain tissue) most likely due to a blockage in an artery. Mr Rothonis alleged that Mr Lattimore failed to carry out adequate investigations and failed to diagnose a condition known as patent foramen ovale (PFO).2

In 2007, Mr Rothonis suffered a stroke which left him significantly disabled. Mr Rothonis claimed damages for alleged negligence on the basis that Mr Lattimore failed to identify the PFO in September 2006, which in turn caused the stroke.

The Court found in favour of Mr Lattimore, holding that there was no breach of duty and that causation was not established. The Court held that reasonable care with respect to averting the risk of stroke did not require that a transoesophageal echocardiogram be carried out to establish whether or not a PFO was present.

The Court’s decision highlighted that the test is one of reasonableness in the circumstances and not best practice, which in this case would have included additional testing not justified by scientific evidence.

The Court went on to conclude that even if Mr Lattimore was negligent in not carrying out a transoesophageal echocardiogram and identifying the PFO, no damage was suffered by Mr Rothonis as a result. On the balance of probabilities, the Court held that intervening medical therapy applied from September 2006 onwards would not have averted the stroke.

Delayed diagnosis of median nerve palsy

On 20 November 2012, Mr Martin was taken to the emergency department of East Metropolitan Health Service (EMHS) where he was diagnosed with septic arthritis of the L5/S1 facet joint of the spine. Over several days prior to his discharge on 8 December 2012, Mr Martin reported pain, difficulty with fine motor skills, numbness in his right hand and fingers, and tingling in his right hand.

Later in December, an EMG revealed that Mr Martin had a median nerve palsy, and a subsequent ultrasound revealed a haematoma compressing the median nerve. Mr Martin underwent surgery in February 2013 after which his pain improved, however he was left with limited movement and ongoing discomfort.

The primary judge found that EMHS had breached its duty of care to Mr Martin for failing to diagnose the median nerve palsy and that the delay caused his injury. EMHS appealed the decision in relation to causation and the assessment of damages.3

The Court of Appeal upheld the trial judge’s decision in relation to causation. It found that had the compression been treated earlier, Mr Martin would have been left with a better outcome. The Court of Appeal also found that, although an EMG could not have been performed in the public system within two to three months, an ultrasound would have been able to pick up the issue. There was no dispute that an ultrasound was available on 24 hours’ notice, seven days per week.


Two of these three cases highlight the difficulties faced by plaintiffs in establishing causation in failure to diagnose cases, even where a breach is made out. Practitioners involved in the defence of medical negligence litigation should always remember to carefully analyse the strength of their causation defence, as this is often the ignored element in these types of cases and only considered secondary to the issue of breach.

The cases also demonstrate the importance of contemporaneous medical notes in the defence of negligence claims. This is a constantly recurring element to litigation in this space, despite wide-spread education of the need to maintain accurate and detailed records.

Finally, the cases establish that the relevant test at law is that of “reasonable” medical practice not “best” medical practice, which is an important distinction when analysing the weight of various experts’ opinions.