I recently came across an interesting article in a medical insurance journal, discussing the responsibilities of a radiologist to ensure communication of important x-ray or other radiology test results. The conclusion of the article was that the radiologist has responsibility for prompt first-hand communication with the referring GP, but the article stopped short of suggesting
Further to an earlier post, the New South Wales Court of Appeal has recently delivered its decision concerning the appeal in relation to Ms O’Gorman’s delay in diagnosis of breast cancer claim.
Tragically in the period between the initial decision in her favour and this appeal, Ms O’Gorman died from her metastatic breast cancer. As a consequence the appeal was contested by her Estate.
The Area Health Service responsible for BreastScreen New South Wales, the Sydney South-West Area Health Service succeeded in its appeal and the Court of Appeal have ordered a re-trial on the issue of negligence.
The primary reason for the Appeal being upheld and a re-trial being ordered was the Court of Appeal’s view that the trial judge had been wrong to refuse to allow the two radiologists involved in assessing Ms O’Gorman’s original breast images to give evidence as to whether they had taken reasonable care in examining her breast images.
This is a not uncommon situation. A defendant seeks to bolster its case by reinforcing its “independent” expert witnesses’ opinions by the views of the particular doctors concerned. I have had first hand experience of this in several cases at and approaching trial in the last two or three years.
Consistent with the New South Wales Court of Appeal’s decision, the generally accepted position is that such evidence cannot be put forward unless its substance has been disclosed an appropriate period prior to trial (as with any other expert’s opinion). By this means the parties are given an appropriate opportunity to consider such opinion, its foundation and prepare cross examination etc.
Subject to this requirement, such expert evidence can generally be put forward, albeit (and this point was acknowledged by the New South Wales Court of Appeal), there will always be issues as to the weight to be attached to such opinion given the witnesses’ lack of impartiality.
More interestingly in a general sense, the Court of Appeal in this case made some interesting observations in relation to causation questions.
I noticed via a recent news release, that 2 Queensland women are pursuing medical negligence claims via Maurice Blackburn, Lawyers, against BreastScreen Queensland.
This follows the O’Gorman case in Sydney in late 2008. In that case Ms O’Gorman was successful against the New South Wales equivalent, BreastScreen NSW, which was found negligent in relation to a screening mammogram. Ms O’Gorman had breast cancer that should have been identified. By the time it was, her cancer had progressed. At the time of trial, she was given only a very short period to live.
As with O’Gorman, these new cases appear to arise from routine breast screening mammograms being read as normal, when it is alleged they were abnormal. In 1 of the 2 women’s cases, the delay in identification and treatment is alleged to have resulted in spread of her cancer such that she has been given 2 years to live.