Pekkala v Lubke[1995] QDC 173

CIVIL JURISDICTION

JUDGE PRATT QC

and

BRISBANE

DATE 13/04/95

JUDGMENT

HIS HONOUR: Mr Pekkala claims compensation from Dr Lubke for damages said to have resulted from a misdiagnosis of his medical condition. In December 1989, Mr Pekkala was the proprietor (of two months standing) of a single taxi cab business and claimed to have lost a little less than three months income, incidental expenses and generally.

On 31 December 1989 Mr Pekkala was admitted to the Princess Alexandra Hospital with a mass in his right lower quadrant and some rebound tenderness. His white cell count was elevated 23,000 and amylase was normal. The subsequent report from the hospital was in these terms,

A more complete summary of the admission and subsequent treatment details which ultimately resulted in the appendicectomy was also attached to that exhibit. Now, Mr Pekkala, as the summary shows, had indeed had an ultrasound performed on 27 December 1989.

The summary incidentally is an appendage to the exhibit. That test had been held at the instance of one of the doctors practising from the Eagleby Medical Centre (the centre). The defendant, Dr Lubke was another of the practitioners at the centre, all of whom were general practitioners. Dr Lubke was a general practitioner of some 20 years standing at that time.

Mr Pekkala had been attending at the centre since 1987. As recently as 15 December 1989, he had been prescribed a course of antibiotics for another ailment, a course which he had recently completed. Dr Howse had seen him on that occasion.

On 21 December 1989 when he attended and was seen by Dr Lubke, Mr Pekkala's system still contained antibiotics. It was also the case that Mr Pekkala was then quite fat around the abdomen and there was a lot of gastroenteritis about in the district. These two facts are important in this case.

Dr Lubke saw Mr Pekkala and failed to diagnose appendicitis. I will deal with that consultation in a moment for it forms the sole basis for this action but it is also relevant to find that Mr Pekkala was also seen by other different doctors at the centre on 24, 26, 27, 28 and 30 December 1989. All failed to diagnose appendicitis. When one adds to that the ultrasound result on 27 December one sees the remarkable nature of this case.

Of course Mr Martin for Mr Pekkala was perfectly correct when he said that the failure of other doctors (plus the ultrasound) to diagnose or reveal appendicitis between 21 December 1989 when Dr Lubke saw Mr Pekkala and 31 December 1989 when appendicitis was correctly diagnosed at the Princess Alexandra Hospital is not in law a bar to a successful recovery from Dr Lubke who admittedly failed to diagnose appendicitis on 21 December. That is especially true if one were to accept that Dr Lubke failed to examine Mr Pekkala properly or at all. But the acceptance of that proposition does not alter the fact that those intermediate examinations by other general practitioners did take place on the abdomen of Mr Pekkala and all examinations failed to result in a diagnosis of appendicitis.

They included on 24 December (Dr Howse), symptoms discussed, stomach palpated and his blood tested. On 26 December (Dr Howse), symptoms discussed, stomach palpated. On 27 December 1989 a.m. (Dr Raymond), symptoms discussed, stomach palpated. On 27 December 1989 p.m. (Dr Mitchell), symptoms discussed, stomach palpated, back passage examined. On 28 December 1989 (Dr Mitchell) similar examination.

Those facts must in my opinion bear upon the difficulties faced by a general practitioner in making an accurate diagnosis of appendicitis on Mr Pekkala's right lower quadrant on 21 December 1989. Whether these difficulties stem from the generous layer of fat which had undoubtedly surrounded Mr Pekkala's midriff, an unusual inability or reluctance to impart information, the then location of his appendix, the maturity of the appendicle abscess or the masking effect of the antibiotics in his system or a combination of some or all of those facts, it is impossible to say but it is open to me to find and I do find that Mr Pekkala's true condition was difficult to diagnose on 21 December 1989.

I turn now to examined more closely the evidence concerning Dr Lubke's examination of Mr Pekkala on 21 December. On the one hand Mr Pekkala professed to remember much about what happened on that occasion and on the other hand Dr Lubke remembered very little. At first glance an arbiter of facts might be inclined to accept Mr Pekkala's account despite some of its remarkable features. In his prepared statement, Exhibit 3, Mr Pekkala said:

In cross-examination Mr Pekkala was asked:

And cross-examination relating to the contents of the stomach, proceeded on, then he was asked:

And then interrogatory 4(b) (ii) was read and the answer given which became part of the evidence was read.

And then he had his attention drawn to a passage in Exhibit 3 which indicated that his statement in 1991 was to the effect that he had been given Endone for the pain and Maxolon for the diarrhoea.

In re-examination he was asked:

And that was identified as about 6 centimetres from centre.

Now, I have set out at length much of Mr Pekkala's evidence on the point because I was left by it with the impression that it was, in the circumstances, an implausible account of a consultation which lasted, he had earlier said, between 10 and 15 minutes and which resulted in the prescription of Endone and Maxolon.

Dr Lubke, as I have indicated, had scant recollection of the consultation, but he did have his notes and he was able to say what was his practice in such cases as these. He said, with confidence, that it was his practice to palpate a patient's stomach in cases such as this and he believes he did so on this occasion for that reason, and because he wrote in his notes “abdomen pain - non-specific” - a conclusion which he says he could only have reached after appropriate palpation.

I think that Mr Pekkala has come to believe in the truth of what he swore to me. I do not doubt even after all the poking, pushing and pummelling he has received to his stomach generally, and to his lower right quadrant in particular, he truly believes that Dr Lubke did none of it. As a witness, Mr Pekkala presented as a person with poor communicative skills. It was not simply that Mr Pekkala has an accent and a limited vocabulary, he is also handicapped by difficulties of relation and recall, which go directly to his reliability as a witness.

I say this whilst acknowledging that he has come to believe implicitly in the justice of his cause and the accuracy of his testimony, but he obviously had assistance in the compilation of his original statement, Exhibit 3. Whether that assistance went much beyond English composition is difficult to say, but I was left in no doubt that the time lapse between 17 April 1991, the day on which Exhibit 3 was signed, and the day he recently gave his evidence, does not account for the remarkable particularity of some of the statement's passages.

The most obvious incident of this was raised in cross-examination. In the statement, Exhibit 3, Mr Pekkala said that Dr Lubke wrote out a prescription for him on 21 December, Endone for the pain and Maxolon for the diarrhoea. At trial, he gave the strong impression from what he said, and his demeanour, that he never had any idea why Dr Lubke had prescribed Endone and Maxolon. That was an important point because it went to whether or not he had really told Dr Lubke on 21 December about his having diarrhoea.

Mr Pekkala's version of the consultation was that he had gone into the consulting room clutching his stomach, complaining of pain to the right lower quadrant, diarrhoea and vomiting; that he had not been examined in the stomach by palpation nor any other means; that he had not ever been required to lie down on a couch; that he had been arbitrarily diagnosed as having gastroenteritis and given a prescription for Endone for the pain and Maxolon for the diarrhoea. He denied that he was told to come back next day if his condition did not improve. He claimed that the consultation lasted only a few minutes, not the 10 to 15 minutes he had told Dr Samford on 17 June 1994.

Dr Lubke told me that a complaint of vomiting and diarrhoea is very easy to write as “V and D”. He says that his not having written “V and D” in the notes is a good indication that no such complaints were made. He went on to say that he would always advise a patient with Mr Pekkala's symptoms to come back next day if a prescribed medication afforded no relief, or perhaps later the same day. He did concede however that since the notes do not mention his having taken Mr Pekkala's temperature or pulse or arranged for a blood test he must have done none of those things.

Having regard to the evidence, I have decided, on balance, that what occurred at the consultation on 21 December was this:--

The consultation room into which Mr Pekkala was shown contained a table, two chairs, a cupboard and couch. If Mr Pekkala had placed both hands near his abdomen as he claimed, he did not do so in a manner which suggested to Dr Lubke that the seat of his discomforture was to any particular quadrant. He did not isolate the location of his pain for Dr Lubke as he claimed. Dr Lubke had Mr Pekkala lie on the couch and he examined Mr Pekkala's abdomen by palpation. Dr Lubke found no particular pain location, certainly not to the right lower quadrant. Mr Pekkala did not mention his having suffered vomiting and diarrhoea. Dr Lubke did not take Mr Pekkala's temperature and pulse or order a blood test. There was a bout of gastroenteritis going about in the district at the time and Dr Lubke wrongly diagnosed that as a cause - or the cause of Mr Pekkala's pain and discomforture. At that time Mr Pekkala was very much overweight for his frame. He was in truth suffering from appendicitis although the appendicle abscess which was later discovered at the Princess Alexandra Hospital was less mature on 21 December 1989. Mr Pekkala still had antibiotics in his system from earlier treatment. Dr Lubke prescribed Endone and Maxolon. He told Mr Pekkala to come back next day if his condition did not improve by then. Mr Pekkala's condition did not improve but he, Mr Pekkala, did not return to the centre until 24 December 1989 when, as I have noted, he saw the first of three other doctors all of whom missed his appendicitis.

I am satisfied on the evidence that the prescription of Endone and Maxolon would be considered by some doctors as excessive, but without more evidence I am not in a position to find that Dr Lubke's prescription of those substances on this occasion is in itself a breach of duty nor is there sufficient evidence before me which would justify a finding that Dr Lubke's act in prescribing Endone and Maxolon contributed to the subsequent failures by other doctors to diagnose appendicitis.

The allegation is one of negligence and negligence is complete when three conditions are satisfied. These are: (1) the defendant owes a duty of care to the plaintiff; (2) the defendant has acted or spoken in such a way as to break or breach the duty of care; (3) the plaintiff has suffered damage as a consequence of the breach.

One must ask in reference to the first of these conditions did Dr Lubke owe a duty of care to Mr Pekkala. In answering that question one must think of the now famous neighbour principle which was long ago expressed by Lord Atkin in Donahue v. Stephenson (1932) Appeal Cases 562.

There is little doubt that in most instances professional people in attempting to treat or advise patients or clients would be found to have assumed a duty of care to their patient or client. Certainly Dr Lubke did in this case. He had a duty of care in respect to Mr Pekkala, his patient.

As to the second condition, Mr Pekkala must prove that Dr Lubke acted or spoke in such a way as to breach that duty of care. The second condition causes the arbiter of fact to ask how does one know whether or not Dr Lubke has breached that duty? What is the standard of care which one should expect of Dr Lubke? One observes at once that no doctor, or lawyer, for that matter, is obliged by law to achieve success in every instance. If he or she were so obliged then the most brilliant feats of surgery, diagnosis, or advocacy could be met by successful litigation.

A professional person's duty is to exercise all reasonable care and skill. No medical practitioner undertakes to effect a cure or for that matter an accurate and complete diagnosis, particularly at a single consultation. No medical practitioner undertakes to employ the highest possible degree of skill. In any instance there are probably practitioners about who have a higher degree or learning or competence than he or she possesses. All that a medical man or woman can be taken to have undertaken to do is to bring a fair, reasonable and competent degree of skill to the task of diagnosis or surgery as the case may be.

To put it as clearly as it can be put, one can say that of course a practising doctor holds him or herself out as possessing special skill or knowledge. And if he or she is consulted as possessing such skill and knowledge by or on behalf of a patient, he or she has a duty to the patient to use due caution in undertaking the treatment. If he or she accepts the responsibility and undertakes the treatment and the patient submits to his or her direction and treatment accordingly then he or she has a duty to the patient to use diligence, care, knowledge, skill and caution when administering the treatment.

One should not expect, however, the highest or very high standard. Nor should one be content with a very low standard. The law requires a fair and reasonable standard of care and competence. A medical practitioner does not require a higher standard of care than that.

Counsel for Dr Lubke referred me to the well known passage from the judgment of Megarry J, in Duchess of Argyle v. Beuselinck (1972) Lloyds reports 172. Which so far as I am aware has always been regarded as clear and accurate. The passage, indeed the full passage reads as follows:

The test is the standard of the ordinary skilled practitioner. A doctor having that degree of competence expected of the ordinary skilful practitioner of Dr Lubke's standing and training in the profession. He is the practitioner who follows the standard practise of his profession of general medical practise. And on the basis that Dr Lubke was an experienced general medical practitioner of some 20 years standing he must be taken to have undertaken to exercise the ordinary skill of an ordinary competent general practitioner at this level.

Now if any further authority were needed, which of course it is not, the last word on the subject is from the ultimate authority so far as we are concerned and that is the High Court in Rogers v. Whittaker (1992) 175 C.L.R 479 at 483. When Their Honours say:

The law, however, has always recognised that in the realm of diagnosis and treatment there is room for genuine differences of opinion. And mere differences of opinion do not of themselves prove negligence. When we reconsider the concept of the neighbour, which I have quoted from Donahue v. Stevenson (supra), we see the need to guard against consequences which are foreseeable.

Given that the evidence before me is that there are a great many disorders apart from appendicitis, or gastro enteritis, which might be productive of some or all of the symptoms about which Mr Pekkala says he complained to Dr Lubke, it would be possible to decide that any one of a considerable number of disorders was foreseeable. “Foreseeable” is an everyday word but is it enough simply to apply that test of foreseeability? Our task is not as easy as that. When we speak of a risk of injury as being foreseeable we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one which is far-fetched or fanciful.

Although it is true to say that, in many cases, the greater the degree of probability of the occurrence of the risk, the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. In deciding whether there has been a breach of the duty of care one must first ask oneself whether, in December 1989, Dr Lubke as an ordinary competent general medical practitioner, exercising reasonable skill and care as such, would have foreseen that his conduct in the alleged respect involved the risk of injury to the plaintiff.

If ones answer is “yes” it is then for one to determine what Dr Lubke, as the ordinary competent general medical practitioner, exercising reasonable care and skill in December 1989, would do by way of response to the risk. In answering this question the perception of Dr Lubke's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action. It is only when those matters are balanced out that one can confidently assert what is the standard of response to be ascribed to the ordinary competent general medical practitioner, exercising reasonable skill and care placed in Dr Lubkes position.

In a word a risk of injury which is remote in the sense that it is extremely unlikely to occur, may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful but is real and therefore foreseeable. But the existence of a foreseeable risk of injury does not, in itself, dispose of the question of breach of duty, as I have tried to point out. The magnitude of the risk and the degree of its probability remain to be considered, along with other relevant factors. One should ask ones self, was it a foreseeable risk? Then the next step is considering the magnitude of the risk and what steps should or might have been taken.

This leads to the law in the third condition upon which a finding of negligence must be based. Mr Pekkala must prove on the balance of probabilities, not merely that Dr Lubke breached his duty of care, but that he caused the damage which he says he sustained. It is not sufficient that damage was sustained after the breach relied upon. It must be shown that the breach caused, or materially contributed to it. It is not sufficient if Mr Pekkala shows merely that Dr Lubkes acts or omissions might have caused the damage he complains of. In the fact the situation disclosed by this evidence it is obvious that Mr Pekkala has his difficulties in regard to the third condition as well as the second.

If one were to apply the “but for” test when considering this question of causation (as both Counsels seem to think I should) then Mr Pekkalas difficulties of proof are manifest. Can it be said that but for the several acts or omissions for which Dr Lubke is responsible, the damage about which Mr Pekkala complains would not have been sustained?

This of course, is essentially a question of fact, which can only be decided by considering the evidence and by reference to common sense and experience. The question in which considerations of policy and value judgments necessarily enter, see March v. E and M H Stramer Pty Ltd (1990-1991) 171 CLR 506, which is also, incidentally, the authority for the proposition that the “but for” or casa sine qua non test is not a definitive test or causation.

I return then to the question of whether any act or omission for which Dr Lubke was responsible breached the duty of care which he owed to Mr Pekkala. Counsel of Mr Pekkala submitted that even if I were to accept, which I do, that an abdominal examination was carried out by Dr Lubke on 21 December 1989, I would still find him in breach because he had a duty on a medical practitioner to elicit a reliable history.

He referred me to a decision by Mr Justice Demack in Locher v. Turner, unreported 22/12/94. I do not wish to be taken as questioning the proposition there in advance, provided it is not suggested that it be applied out of context, either of the prevailing authorities as to the onus and standard of proof, or the authorities which bind us all on the question of breach of duty of care and causation.

But having read that case I can see that it was one in which that particular of negligence, that is to say, failing to elicit a reliable history was proven. Indeed, it seems to have been a very clear case given that the defendant missed the opportunity of investigating and diagnosing colon cancer when the symptoms of bleeding from the rectum and of the presence of blood in the patient's faeces were made known, and the patient was never considered to be diffident, reticent, or lacking in communicative skills.

His Honour in the same case also noted and considered the patient's corresponding obligation to disclose fully his symptoms. But be that as it may, Locker v. Turner (supra) seems to me more a case of failing to investigate over time after clear warning signs suggested comparatively few causes, one of which was foreseeably terminal.

In my opinion on the 21 December 1989, Mr Pekkala must have been very difficult accurately to diagnose, notwithstanding the fact that his appendicitis was at an advanced stage. Firstly there was his fat stomach which must be taken to be a factor, given the difficulty other general practitioners had on the days following the 21 December.

Secondly, there was, I infer, the location of his appendix. Mr Pekkala sustained so much palpation from Dr Lubke and other doctors, all missing his true appendicle condition, that it must have been placed in one or other of the obscure positions mentioned by the specialists in evidence.

Thirdly, there was the failure of Mr Pekkala to nominate the right lower quadrant as the seat of pain and the failure of the right lower quadrant itself to respond to palpation.

Fourthly, there was the prevailing gastroenteritis in the district which I was told can give rise to very severe abdominal pain.

Fifthly, there was the quantity of antibiotics in Mr Pekkala's system from an earlier visit to the centre on the 15 December, which quite possibly masked his condition.

Finally there is the factor which I have already noted, of Mr Pekkala's limited capacity clearly to express himself. All these factors combine to lead Dr Lubke to a misdiagnosis. I find further that I am not satisfied that Dr Lubke's failure to take Mr Pekkala's temperature, pulse or order a blood test contributed to the misdiagnosis. I do not believe Dr Lubke's act fell in any way short of the standard which would be reached by the ordinary, reasonable, experienced general medical practitioner exercising ordinary care and skill. Dr Lubke was not in breach of the duty of the care which he owed to Mr Pekkala.

Indeed, it seems to me that Mr Pekkala was in breach of the duty of care which he owed to himself in three clear and distinct ways. 1) Failing if it were the case, to inform Dr Lubke that he had symptoms of vomiting and diarrhoea. 2) Failing, if it were known to him, to point to his lower right quadrant as the seat of his stomach pain. 3) Failing to return to the centre the following day, and not returning until the 24 December.

As to the question of causation I will say for the sake of completeness, that even if I had found Dr Lubke in breach of the duty of care which he owed to Mr Pekkala, I would have been unable to find a causal connection between such breach and the damages about which Mr Pekkala complained.

That is the finding of fact, which is in my opinion inevitable whether one applies the so-called “But for” test or the wider considerations discussed in March v. E & M H Straymar Pty Ltd (supra). If I had found for the plaintiff I would have gone on and assessed damages under the heads claimed. The sums claimed under those heads were not excessive, they totalled $36,515.82. As to the heads, payments offering $15,000, interest $1,500, economic loss $6,132, interest $3,679.20, Griffiths and Kerkemeyer $8,002, interest $800.02, special damages $5,202.60; total $36,515.82. The doctor will have his costs.

Any other applications?

MR MARTIN: Yes, if it please Your Honour, there were some reserve costs; I ask that they be included, and put removal to this Court from the Magistrates Court.

HIS HONOUR: Why were they reserved?

MR MARTIN: They were reserved because there was an application of the 16 September 1993 to remove the action from the Magistrates Court to this Court. Your Honour's finding clearly shows that that application was not warranted.

HIS HONOUR: Do you resist that Mr Sullivan?

MR SULLIVAN: No, Your Honour.

HIS HONOUR: Very well, reserve costs will be included.

MR MARTIN: Secondly, Your Honour, I ask that an order for costs on a solicitor and client basis be made from all costs incurred by the defendant after 3 October 1992. I do that on this basis-----

HIS HONOUR: Somebody made an offer, did they.

MR MARTIN: Someone made an offer, yes. Can I tender the offer?

HIS HONOUR: Is there any argument about this?

MR SULLIVAN: No, there's not, Your Honour.

HIS HONOUR: Very well, costs on that basis. What is it, what's the magic word? Solicitor and client, is it.

MR MARTIN: Yes, solicitor and client basis from 3 October 1992.

HIS HONOUR: Very well, I'll make an order to that effect. I say again I was very grateful for the held I got from both counsel on this matter. I'm sure both did what he possibly could to assist his respective client's, thank you.