Lemm v Daniels[2001] QDC 231

DISTRICT COURT OF QUEENSLAND

1. [1]
   In this case the first defendant is a medical practitioner in general practice. The second defendant is the practice. The first plaintiff was examined and treated by the first defendant. The second plaintiff is the first plaintiff’s husband.

2. [2]
   The first plaintiff is a 69 year old woman. Her action is for damages for personal injury allegedly caused by the negligence of the first and/or second defendant. The second plaintiff’s action is for damages for loss of consortium.

3. [3]
   The second plaintiff initiated telephone contact with the second defendant at about 10.00am – 10.30am on Saturday 26 June 1999 seeking a home visit for the first plaintiff. At that time, the first plaintiff was feeling very nauseous. Later that day the first defendant visited the plaintiff’s home. On the afternoon of the following day, the Sunday, the first defendant visited the plaintiff’s home again. On the following Monday, at about 7.30am, the second plaintiff telephoned the second defendant. Later that day at about 4.00pm the plaintiffs’ came to the second defendant’s surgery. An electrocardiograph (“ECG”) was done, which revealed a myocardial infarct. An ambulance was summoned and the first plaintiff was transported to the Nambour Hospital.

4. [4]
   The first defendant’s clinical notes about these encounters are contained on a card which he said was brought into existence on Saturday 26 June. All those notes were written on Monday 28 June 1999 after the plaintiffs’ had come to the surgery in the afternoon and ECG had confirmed the first plaintiff had a myocardial infarct. He said in evidence that he had made some notes on a medicare form on the occasions he had visited the plaintiff’s home on 26 and 27 June 1999. He had not retained them. The plaintiffs’ said they did not observe him make any notes during his visits to their home.

5. [5]
   On the card I have referred to under date 28 June 1999 appears “AMI: (which I understand to stand for anterior myocardial infarct) ? anteroseptal infarct. Acute dyspnoea since this am. Odd pains shoulder last night. Today tight chest unable to breath deeply. Took arthrotec    epig pain rad to back.  Indigestion tabs – Saturday   –   vr severe   bed –   Blamed arthrotec   IV line  . Lasix 80      Admit Hosp.   Nitrodur      Asprin 600mg stat”.

6. [6]
   The notes the second defendant said were written on the card at the same time for 26 and 27 June 1999 from those he had on a medicare form were: under date 26 June 1999 “1. Home visit: epig discomfort. 2. O/E 120/80 P    cvs    Rs    abd sl tender[:].   3. 2   Arthrotec      stop  ?   MI   Zantac.    Panadiene forte”. Under date 27 June 1999 “Home visit:   Better still Epig discomfort but .   On zantac    pan forte.  Exam NAD  ?    needs ECG      See tomorrow”.

7. [7]
   Whilst I accept the plaintiffs’ evidence that they did not observe the first defendant make any notes in their presence, it is possible he made some note on a piece of paper of some kind. I find it a little curious however that he did not take the card with him on either visit if it was brought into existence before the first visit as he said it was.

8. [8]
   The defendant’s case depended upon the testimony of the first defendant and M/s Caulter who was and is the receptionist at the second defendant. M/s Caulter had no contemporaneous notes of conversations she had with the second defendant or of events of that weekend. She said she was first asked to recall these matters in the early part of this year.

9. [9]
   The second defendant appears to have been a reasonably busy medical practice. I regard the evidence of Ms Caulter as not as reliable as to the occasions of telephone calls and the conversation which occurred in them as the evidence of the second plaintiff. Similar comment may be made about the evidence of the first defendant beyond his notes and the plaintiffs’ evidence. I think the plaintiffs’ recollection of conversations and the events of the weekend are, with due allowance for the passing of time and self interest, likely to be the more reliable.

10. [10]
    The essence of the first plaintiff’s case was that, as a result of the defendant’s negligence, she lost a chance for a better health outcome than has eventuated, which has spoiled her remaining life and caused her damage. The second plaintiff claimed he has suffered a diminution in the first plaintiff’s companionship and services.

11. [11]
    There is no doubt that, unfortunately, the first plaintiff had a myocardial infarction that weekend. There is an antero-lateral myocardial infarct which ECG and pathology at Nambour Hospital indicated was of recent origin. Thrombolytic treatment was available at Nambour Hospital. Its early application after heart blood vessel blockage occurs can reduce heart muscle necrosis; the earlier the application, the greater chance and extent of a favourable outcome. The evidence suggests that by 12 hours after blockage of a heart blood vessel thombolytic treatment is not generally indicated.

12. [12]
    There are opposing accounts about the Saturday, Sunday and Monday. I do not accept in their entirety, any of the accounts. I think they were all coloured to a more or lesser extent by hindsight, reconstruction and self-interest.

13. [13]
    The plaintiff was 67 years of age at the time she had the attack. Her case as set out in the statement of facts in her statement of claim (her pleading) asserted that at about 7.30am on 26 June 1999, she experienced an episode of sudden gripping pain in her chest radiating from the front to the back, and felt suddenly nauseous. At about 10.00am, the second plaintiff telephoned the second defendant requesting a doctor visit the first plaintiff, explaining that the first plaintiff was experiencing pains in her chest and nausea. Between midday and 12.30pm, the first defendant came to the plaintiff’s house where the first plaintiff told him of chest pain earlier that morning and nausea. The first defendant prescribed Panedeine Forte and an effervescent medication Zantac.

14. [14]
    The plaintiffs’ evidence did not entirely support the pleading. I find that on 26 June 1999 at about 7.30am, the first plaintiff, after returning from a walk, was doing some work in her garden when she experienced a sudden, quite severe, pain in the general vicinity of her chest which she described as like a bad indigestion which spread towards her back and a slight tearing feeling. It persisted for a few minutes and then retreated. Immediately there was a feeling of severe nausea which persisted. She may have vomited. She went inside and lay down on her bed. The nausea continued. By 10.00am or thereabouts, the second plaintiff phoned the second defendant asking for a home visit. I accept that the receptionist, a Ms Caulter, attempted to have him bring the first plaintiff to the surgery. He indicated her that the first plaintiff was too sick to come to the surgery. I do not accept that he told her of ongoing chest pain, or even described chest pain in such a way as might reasonably alert her that there may be an emergent circumstance. I find that at that time, the plaintiffs’ focus was on the ongoing severe nausea the first plaintiff was experiencing. The chest pain, whilst severe, had only been of short duration and had gone.

15. [15]
    The defendant’s appointment book became exhibit 11. On 26 June 1999 it shows appointments throughout the morning, the last being scheduled for 12.45pm. All are ticked except the one at 12.45pm, although ticking off does not seem to be consistently done in the appointment book. The first defendant said he finished surgery at 2pm and arrived at the plaintiff’s home at 2.30pm. There was no real explanation why, if the last appointment was 12.45pm, it should take until 2.30pm to arrive at the plaintiff’s home a short distance away. It is possible for appointments to be running late, but there was no real evidence about it. The plaintiffs’ said that the first defendant arrived at their home between midday and 12.30pm. They were anxiously awaiting the doctor’s arrival and were observing the time. Because the earlier thrombolytic treatment is applied after an ischemic event the better the likely outcome, the plaintiff’s interests potentially are better served the earlier the first defendant arrived and the first defendant’s interests are potentially better served the later he arrived. Neither the first defendant or M/s Caulter has any contemporaneous note to which recourse may be had regarding the time of departure from the surgery, or the time of arrival at the plaintiffs’ home. I find the probabilities are that the first defendant arrived at the plaintiffs’ home shortly after his last appointment. I find the plaintiffs’ account of the time of his arrival is more likely to be more accurate. The occasion was, for them, of importance. The occasion for the first defendant was, until some time later, no more than another appointment in a busy medial practice.

16. [16]
    The first defendant said that he had telephoned the second plaintiff after seeing his last patient on the Saturday morning, had the symptoms described to him and had asked the second plaintiff to bring the first plaintiff to his surgery. He said that the second plaintiff had said he was unable to bring her to the surgery and declined the used of an ambulance. He said that on arrival at the plaintiff’s home, he asked the first plaintiff how she was feeling. She told him that she was extremely nauseated, and had had severe indigestion earlier that morning with epigastric pain to her back. He said he asked her if she had any chest pain and she said that she did not. He ascertained that she had indigestion in the past and that she was taking an anti-inflammatory, Arthrotec, for arthritis in her knee. He examined her, found her blood pressure and pulse normal, observed no jaundice or anaemia, listened to her heart and chest and found no abnormality. He found a little tenderness in the epigastrium. He made a differential diagnosis of gastritis / heart attack. He then called the second plaintiff into the room (he had left the room at the start of the examination) and explained to both plaintiffs that the first plaintiff may have had a severe attack of indigestion, but other serious conditions needed to be excluded, such as heart attack. He emphasised that if they had come to the surgery, he could have excluded heart attack. He advised that the first plaintiff should be taken to hospital and that he could call an ambulance. The first plaintiff refused. He then offered treatment to relieve symptoms, being Zantac and Panadeine Forte and injected 10ml of Maxilon (for nausea) at acupuncture points. He advised the plaintiffs to come to the surgery the next day and left. He did not arrange to look in on the plaintiffs the next morning. He did go to the plaintiffs’ home the next day at the completion of his appointments on the Sunday morning. He said that at the conclusion of his surgery on the Sunday, he inquired of M/s Caulter whether the plaintiffs’ had been in touch with the surgery and having being advised they had not decided to check if they had gone to hospital as he had advised.

17. [17]
    The plaintiffs’ account was different. They said that when the first defendant arrived he first informed them the cost of the home consultation would be $100 and enquired whether they were agreeable, which they were. The first plaintiff said she probably told the first defendant of the deep pain in the middle of her chest followed by nausea, when he arrived. According to the second plaintiff he did not speak to the doctor on the telephone on the Saturday at any time. He only spoke to the surgery once when he phoned on the morning to arrange a home visit. Both plaintiffs said that the second plaintiff never left the room where the first plaintiff and the first defendant were at any time during the first defendant’s visit. The plaintiffs said the first defendant did not take the first plaintiff’s blood pressure or pulse during the visit on the Saturday. Both said they were never told of the possibility of a heart attack or advised to take the first plaintiff to hospital for tests. Nor were they told to come to the surgery the next day. Rather the first defendant indicated he would look in on the first plaintiff the next day.

18. [18]
    There is no reference in the first defendant’s notes to giving advice to the plaintiffs’ about heart attack possibly being a cause of symptoms, of advising the first plaintiff to go to hospital (or his surgery) for tests to exclude heart attack or of the plaintiffs declining to accept his advice. He could have included such a reference when making the notes if he had given that advice, or even if he had not. That there is no note is at least consistent with his evidence that at that time it was not his practice to include such materials in notes. When the first defendant and the receptionist, Ms Caulter, were asked about it during the trial it was said to be due to the practice at that time not being accredited, apparently a reference to a set of minimum guidelines for general practices in Australia produced by the Royal Australian College of General Practitioners (see a reference to these in Exhibit 1).

19. [19]
    The taking of blood pressure is not something that may be readily missed by a patient, as with the taking of pulse. I did not form the view that the plaintiffs at any stage of their evidence were engaged in deliberate misrepresentation. However, on balance I am not prepared to find that the first defendant neglected to take pulse and blood pressure during his first visit on the Saturday.

20. [20]
    I accept the second plaintiff’s evidence that he only made one call to the practice on Saturday 26 June at about 10.00-10.30am. I find that when the first defendant visited the first plaintiff on 26 June 1999, she told him of the pain like severe indigestion of short duration followed by nausea which had persisted. She also told him of taking the anti-inflammatory medication and of some past indigestion. I find that after listening to the first plaintiff’s chest and heart, and taking her pulse and blood pressure, the first defendant concluded the most likely cause of the symptoms was in the digestive tract exacerbated by the anti-inflammatory medication the first plaintiff had been taking. I do not accept that he alerted the plaintiffs’ of a heart attack being a possible cause of her symptoms or advised the plaintiffs’ to go to the hospital. Nor do I accept that he advised them in that context to come to the surgery for an ECG. Despite the first plaintiff’s nausea, I do not believe that the plaintiffs’, if advised the cause of the first plaintiff’s symptoms could be due to a heart attack and that a check should be done, would have ignored that. They did not impress me as such people. Their behaviour on the Monday afternoon was not consistent with that. Nothing in the material before me about the first plaintiff’s medical history supports that.

21. [21]
    The plaintiffs’ pleading also asserted that at about 2.00pm on 27 June 1999 the first defendant again visited the plaintiff’s home where she described to him that she was suffering from deep pain in both her arms and had been experiencing the pain since the previous evening.

22. [22]
    According to the first defendant, when on completion of surgery on Sunday he visited the plaintiff’s home, he asked why they had not come down to the surgery for investigations, to which the first plaintiff smiled. He asked the first plaintiff how she was feeling and was informed she was feeling better but still had severe nausea and mentioned something about shoulder pain earlier that morning. He examined her. Findings were normal apart from a little tenderness in the epigastrium. He provided some acupuncture. He explained she could still have had a heart attack, that an ECG needed to be done, that could be done at a hospital but if she did not want to go to a hospital, irrespective of how she felt, she should come to his surgery the next day for further investigation. According to M/s Caulter the plaintiff did not contact the surgery on Sunday.

23. [23]
    According to the plaintiffs’ evidence, in the early hours of Sunday morning, the first plaintiff experienced an attack of deep pain in her upper arms. By later that morning, the pain had gone. The nausea remained continuously throughout. The second plaintiff telephoned the surgery on Sunday morning to check that the doctor was coming and was told by the female person on the phone the visit was arranged. I find the second plaintiff did telephone the second defendant early on Sunday morning, to ensure the doctor was coming. When the first defendant arrived at about 2.00pm the first plaintiff told him about the pain in her arms during the previous night. The first defendant administered acupuncture and told the plaintiff to take another effervescent tablet.

24. [24]
    I find that on this occasion also the first defendant did not advise the possibility of a heart attack being a cause of the plaintiff’s symptoms or of a need to go to hospital or his surgery for tests for that.

25. [25]
    I find that on the Sunday night, the first plaintiff again had pain in her arms and began to experience some breathing difficulties. On Monday morning the breathing difficulties persisted. The second plaintiff phoned the second defendant at about 7.30am and asked for a doctor to visit again. The evidence of the second plaintiff, the first plaintiff and Ms Caulter differed about the conversation that occurred. I find the second plaintiff’s account of what was said is more likely to be correct. After the call the plaintiffs waited for the doctor to visit. By 3.00pm when he had not arrived, the second plaintiff again phoned the second defendant. He was connected to the first defendant. He told the first defendant the first plaintiff was having difficulty breathing. The first defendant told him to bring the first plaintiff to the surgery immediately. I find that on this occasion the first defendant told the second plaintiff of the possibility of a heart attack. The plaintiffs’ came to the surgery immediately.

26. [26]
    I accept the plaintiffs’ evidence about the first defendant coming into the surgery through the front door shortly after their arrival and saying words to the effect “ I have just been around to your house, see how important you are”. An examination and an ECG were performed and the first plaintiff was told that she’d had “a little heart attack”. An ambulance was arranged and the first plaintiff was transferred to the Nambour Hospital. The first defendant also took a blood sample from the first plaintiff which he provided to the ambulance officers.

27. [27]
    Evidence was put before me by two general practitioners: Dr Stanley-Davies in the plaintiff’s case and Dr Carter in the defendant’s case. In part, the evidence of each consisted of a written report: exhibits 1 and 7. In producing the reports both doctors had been asked to assume a factual situation put to them by the respective parties. Each also gave oral evidence. Evidence was also put before me by two cardiologists, Dr Hetterich in the plaintiffs’ case and Dr Colquhoun in the defendant’s case. There was also documentary material from a general practitioner who had treated the first plaintiff in the past, Dr Moulding, a thoracic specialist Dr Oliver, and the records of the Nambour base hospital regarding the first plaintiff.

28. [28]
    The medical evidence revealed the following matters. About 30% of heart attacks do not produce classical symptoms of ischemia. Some produce no symptoms. Moreover, symptoms may vary widely from the classical sudden onset of severe pain in the chest which is prolonged. A patient with a myocardial infarction may present with a range of symptoms. Sudden onset of severe mid-chest pain which is prolonged may be a stronger indicator of an ischemic event, than other possible descriptions. However pain may be reported both higher and lower in the body than the chest or in the back. There may be a report of deep feeling pain in upper-arm or arms. Apparent shortness of breath may be associated with any of the above. On going nausea/vomiting associated with sudden onset of severe pain in the chest area may be reported.

29. [29]
    I think it likely a number of things combined to contribute to what eventuated. It was the weekend. There was a focus on the persisting nausea suffered by the first plaintiff which overshadowed the sudden occurrence of severe pain in her upper-body like a bad indigestion, which seemed to spread to her back but which went away after a few minutes. There was some prior history of reflux and indigestion and of recent arthritic pain in her knee for which she had recently commenced taking Arthrotec, an anti-inflammatory medication which can cause problems manifesting in pain in the upper digestive tract. The first plaintiff was not a regular patient and was being seen not at the surgery but during a home visit at the plaintiffs’ request occurring at the conclusion of the first defendant’s Saturday morning surgery.

30. [30]
    After reviewing all of the evidence I have come to the conclusion on the balance of probabilities that after his examination on the Saturday morning, the first defendant thought that the cause of symptoms was a digestive tract problem. Despite his notes written on Monday, I think that on Saturday and Sunday he never really considered a heart attack was a cause, for if he had I think he would have done something like what he said in evidence he did. He clearly did on the Monday afternoon when he was told of the first plaintiff’s continuing illness and her difficulty with breathing.

31. [31]
    The standard of care required by the law to be observed by a person with a special skill or competence, such as a medical practitioner in general practice, is that of the ordinary skilled person in that field exercising and professing to have that special skill.

32. [32]
    There is a tendency, I think, to expect doctors to be infallible so that if a mistaken diagnosis occurs, the doctor is therefore blameworthy. Moreover, the tendency to consider a doctor blameworthy may understandably be more acute in a person who with the benefit of hindsight considers a doctor has not diagnosed their condition correctly and thus provided appropriate treatment. However, doctors like everybody else are fallible. Diagnoses, at least until other investigations are done, are based on information provided by a patient and what an examination reveals. In some types of cases and the evidence illustrates heart attack is one of them, accurate diagnosis based solely on that type of information can be difficult. Symptoms may vary widely from what might be described as classical symptoms to no overt symptoms at all. Everybody is of course wiser with hindsight. The question in issue must be considered, however, without that advantage. It comes down to whether the first defendant in not considering a myocardial infarction in this 67 year old plaintiff was a real possibility and in not advising her (and her husband) it was necessary to urgently undergo further testing to exclude that, fell below the standard of care required of the ordinary skilled medial practitioner practising in general practice.

33. [33]
    At 67 years of age the first plaintiff was in a higher risk category for heart attack. I accept the evidence of Dr Stanley-Davies that because of the potentially serious consequences of heart attack, a general practitioner of ordinary skill and competence should be always alert that myocardial infarction can result in varied symptoms not necessarily classical and that a history of symptoms such as sudden pain even of short duration suffered in the region of the chest and ongoing nausea should be approached by taking steps to exclude myocardial infarction as a cause because its consequences may be so serious. Moreover, relatively simple steps can be taken to exclude it. At the first level is firm advice that a heart attack is a possible cause of the symptoms and that further tests which can only be done at a hospital or at the surgery are required as a matter of urgency. The tests themselves, a blood test and/or an ECG, are readily available and not expensive. An ECG can be done at the surgery. A blood test on the weekend could at least be done at the hospital and so could an ECG. Each of these steps had a high probability of revealing a myocardial infarction.

34. [34]
    Whilst it is understandable that the first defendant thought that the likely diagnosis was a digestive tract problem exacerbated by anti-inflammatory medication, I find that consideration should also have been given to the risk that a myocardial infarction could have been the cause and appropriate advice given. I find that the first defendant’s treatment of the first plaintiff on the Saturday and Sunday fell below that reasonably to be expected of the ordinary skilled medical practitioner in general practice.

35. [35]
    It does not simply follow from that finding that the first defendant has caused the plaintiffs damage. It is necessary to consider whether if the first defendant had advised of the need to undergo urgent investigation, the chance of a better outcome for the first plaintiff would be improved. That calls into question when the infarction occurred. It is necessary to consider whether the evidence establishes on the balance of probabilities when the myocardial infarction occurred.

36. [36]
    The relevant evidence is that of the cardiologists, the records of the Nambour Hospital and to a lesser extent the evidence of Dr Stanley-Davies.

37. [37]
    It appears it is possible to say that myocardial infarct occurred within a range of time before a particular sample of blood was taken by comparing the level of enzymes produced by dying heart muscle in that sample, with the level of those enzymes in a sample or samples taken at a later time. By comparing the enzyme level present in a sample taken at the hospital at the time of admission on 28 June 1999 and a sample taken later, an estimation may be attempted. Thus it was possible to speak of an estimate that myocardial infarction had occurred in the region of “ few days” or “within a period of 24 – 36 hours” “which could be longer or shorter” before the taking of the first sample of blood, at about 7pm on 28 June 1999. If say 24 – 36 hours is strictly applied, myocardial infarction occurred between early Sunday morning and Sunday night.

38. [38]
    Dr Colquhon observed that the information available in the hospital records about cardiac enzymes was not the best data to attempt to date a heart attack. It is no doubt possible that on the Saturday morning the first plaintiff suffered a digestive tract problem producing an attack of epigastric pain followed by continuing nausea, and that she first suffered a heart attack in the early hours of Sunday morning when she had an episode of pain in her arms or even Sunday night and Monday morning when she experienced breathing difficulties or that she had a completely silent heart attack and the symptoms of trunk pain, nausea, arm pain and difficulty breathing, were due to other pathology. However, I find that the probabilities are that the sudden pain in the region of her chest of short duration, on Saturday morning, and continuous nausea thereafter were caused by myocardial infarction of a left-anterio blood vessel. As time passed this was further manifested by arm pain and shortness of breath.

39. [39]
    I have found that the first defendant should have advised the first plaintiff that as a matter of urgency testing should be done to exclude heart attack. There were two options for testing. One was to advise the first plaintiff to come to the surgery immediately for an ECG, which on my findings would have confirmed a myocardial infarct. The other was to advise to immediately arrange to attend at Nambour hospital for testing and if required assist in those arrangements.

40. [40]
    There was some evidence that if the plaintiff had presented to Nambour hospital with a history of sudden pain in the chest area, like a bad indigestion pain which spread to her back and lasted 2 or 3 minutes and thereafter persisting nausea together with a history of reflux in the past and of recently commencing anti-inflammatory medication, hospital staff in the emergency section would have treated the matter as a digestive tract problem and would not have tested for heart attack. In other words, even if the first defendant had advised and arranged hospital treatment on Saturday it would not have made any difference to the outcome.

41. [41]
    Regarding this I prefer the evidence of Dr Hetterich and Dr Stanley-Davies. I find that the probability is that medical staff in the emergency section at Nambour hospital would have had blood testing and an ECG done.

42. [42]
    A treatment scenario on Saturday would have been immediate attendance at Nambour hospital. However, it could not be said it would have been unreasonable in the circumstances for the first defendant to advise the plaintiffs to come back to his surgery with him so an ECG could be done. The circumstances suggested a likely diagnosis was a digestive tract problem, although an ischemic event was a possibility which should be excluded as a matter of urgency. If the latter course had been followed myocardial infarction would probably have been confirmed followed by transport to hospital. In this scenario arrival at hospital may have been later than if the first plaintiff went there directly from her home. However, a more definitive diagnosis would already have occurred.

43. [43]
    I have found that the probability is that the first plaintiff suffered a myocardial infarction at about 7.30am on Saturday. I find that nothing communicated to the second defendant through M/s Caulter or to the first defendant prior to the first defendant’s visit to the plaintiff’s house could be found to have required as a reasonable response by the second defendant, M/s Caulter or the first defendant, that anything more urgent needed to be done than the house visit when the Saturday morning surgery was completed. It is an unfortunate circumstance that the plaintiffs’ opted for a home visit. As I have indicated, I accept that M/s Caulter sought to persuade the second plaintiff to bring the first plaintiff to the surgery but that the second plaintiff considered she was too sick.

44. [44]
    The earliest time at which it might reasonably be found that the first defendant should have advised the first plaintiff of the need for tests to exclude a heart attack as a matter of urgency and provided assistance in arranging for that testing was after he had completed his examination of her on Saturday. I find this was probably in the vicinity of 1.30pm, some 6 or so hours after the event at about 7.30am.

45. [45]
    If it be supposed that, after that, the first plaintiff was transferred to the Nambour hospital emergency section by ambulance, I find that the probabilities are that tests revealing myocardial infarct would not have been completed until at the earliest about 2.30pm and quite possibly later than that. If it be supposed that the first plaintiff had gone to the first defendant’s surgery for an ECG and then to the hospital, the outcome would probably have been similar. A decision about thrombolytic treatment would not have been taken until after 2.30pm at the earliest.

46. [46]
    If thrombolytic treatment is not contra indicated (and there is no evidence that it is in the first plaintiff) at best it has an 80% chance to dissolve the blockage in the heart blood vessel. There is about a 20% chance even in optimal conditions it will not work to dissolve the blockage. There is about a 1% chance of the treatment causing bleeding of a blood vessel into the brain, usually fatal. The best result from treatment is obtained the closer to the time the blockage occurs the treatment is applied. Recognising that it is not possible to be precise, up to the first 4 hours after a blockage occurs there is an 80% to 70% chance of thrombolytic treatment succeeding. After that up to 8 hours there is only about a 50% chance of success and after 8 hours only a 20-30% chance of success.

47. [47]
    I have not specifically dealt with the conflict in the evidence about telephone conversations between the second plaintiff and M/s Caulter and the first defendant on the Monday. There is no point in pursuing this aspect of the evidence any further. The findings I have made and the medical evidence suggest that even by Sunday the first plaintiff’s present condition was probably already a foregone conclusion.

48. [48]
    There was a plea of contributory negligence by the defendants. However, the findings I have made mean that it must fail.

49. [49]
    The plaintiff’s heart now has about a 20% ejection fraction, that is the fraction of blood ejected from the heart during the contraction stage. The probability is it has been reduced to that from about 60% (a normal fraction) by myocardial infarct.

50. [50]
    I find that as a consequence of the reduced ejection fraction the first plaintiff’s activity capacity has been reduced. Ordinary things she used to be able to readily do without tiring now tire her and she must rest. Her husband, the second plaintiff, has taken over most domestic activity from her. Whilst I think that she can still do the sorts of things the second plaintiff now does instead, after a reduced period she must rest. The more strenuous the activity the less time she can undertake it before rest is required. Understandably her confidence in her ability to do things has been knocked. The bottom-line is that the quality of both her and her husband’s life has reduced.

51. [51]
    In assessing damages it must be kept in mind that the first plaintiff had a heart attack irrespective of the first defendant. She would therefore have been hospitalised and incurred expense such as pharmaceutical expenses which she now incurs. It is not possible on the evidence to conclude whether expense associated with these events would have been less if say the heart attack had been diagnosed at the hospital within 4 hours of its occurrence, to example the best outcome from thrombolytic treatment.

52. [52]
    It seems to me the plaintiff’s damages are confined to general damages and to satisfy a need for the provision for some care and assistance. And what must be assessed is the value of the plaintiff’s chance for a better outcome than actually obtained in these areas had the plaintiff arrived at the Nambour hospital on Saturday and thrombolytic treatment provided reasonably promptly thereafter.

53. [53]
    When Dr Hetterich performed an angiogram the blood vessel was totally occluded and he concluded was therefore probably totally occluded at earlier material times. The resulting total loss of perfusion of that part of the heart muscle results in its death. Successful thrombolytic treatment would have allowed blood to perfuse that part of the muscle again. According to Dr Hetterich, whose evidence I accept about this, if thrombolytic treatment had been administered at 7-8 hours after the ischaemic event, and was successful, the first plaintiff’s ejection fraction would probably have been 10-15% better than the 20% she now has. According to the doctor, at a 30% ejection fraction, there would be a reasonable amount of improvement in her capacity. Even so, I think her confidence would have still taken a knock but not as severely if her activity capacity was greater. And of course the chance of a successful outcome of thrombolytic treatment had reduced to about 50% by the time 7 or 8 hours had elapsed.

54. [54]
    Damages must be assessed against the evidence that expectation of life with a 20% ejection fraction has been reduced: see the evidence of Dr Hetterich about that. I propose to assess damages as if that expectation refers to a period post trial.

55. [55]
    I assess an amount of $15,000 for the reduction in the first plaintiff’s capacity for activity and in her quality of life from a 20% ejection fraction rather than a 30% ejection fraction. One third of that amount relates to the period pre-trial. In arriving at damages for pain, suffering and loss of amenities I have reduced the sum by 50% to take account of the matters I have referred to. I assess the sum of $7,500. I assess interest at 2% which I round off in the sum of $113.

56. [56]
    So far as damages for a need for care and assistance are concerned, the parties were agreed on the following hourly rates:

• to September 1999 - $11.61;
• thereafter to July 200 - $13.30;
• thereafter - $13.60.

57. [57]
    I find the first plaintiff’s reduced physical capacity now has created an actual need for care and assistance which may be satisfied by an average of 1 ½ hours per day which is ongoing. The second plaintiff may well provide a greater amount of care and assistance than that but I think that is by choice rather than to satisfy an actual need. The need may have been greater when the first plaintiff first returned from hospital, but I intend to apply 1 ½ hours per day throughout.

58. [58]
    Application of the above figures to judgment results in a sum which I round off at $15,618. I have applied a 50% reduction to this amount and assess damages under this head in an amount of $7,809 to judgment. I allow interest at 2% rounded off in an amount of $355.

59. [59]
    For the future I will base an assessment on a 4 year period. I assess an amount of $14,800.

60. [60]
    The damages the second plaintiff claims are “for the material consequences of the loss or impairment of (his wife’s) society, companionship and service in the home” and elsewhere. In Johnson v Nationwide Field Catering Pty Ltd [1992] 2 Qd R 494, Demack J sets out a useful analysis of the law relating to this sort of claim.

61. [61]
    The first plaintiff now does very little of the things she used to do for both herself and the second plaintiff. As I have found she tires more easily and must rest and her confidence had taken a knock. As I observed above, her confidence would probably have taken a knock even if the outcome of her heart attack had been better but I think it would have been less if activity did not tire her so easily. The second plaintiff now attends to all those domestic activities. He prefers to do them so as not to have the first plaintiff tire and have to rest which deprives him of her company. Some things they used to do together frequently, such as walk, now do not occur. The second plaintiff walks alone. I accept the first plaintiff can go for a walk. Indeed so long as she didn’t over do it, it would probably be good for her. However it tires her and it is understandable that is of concern.

62. [62]
    I find that there has been an impairment of “the society, companionship and services” of the first plaintiff and that it is due in part to the outcome achieved after the heart attack. I assess an amount of $2,500 damages for this.

63. [63]
    I give judgement for the first plaintiff against the first defendant for $30,577.

64. [64]
    I give judgement for the second plaintiff against the first defendant for $2,500.

65. [65]
    I give judgement for the second defendant against the plaintiffs’.