Cancer patient sues GP

Keywords

Negligence – medical negligence – general practitioner and patient – failure to advise – failure to follow up – causation – loss of chance of a better outcome

Facts

The 42-year-old plaintiff suffered from cervical cancer. She sued her general practitioner (the defendant) in relation to alleged failures to advise or inform her to undertake preventative screening by way of pap smears or cervical screening tests over the period 2014-2019.

The plaintiff alleged she was wrongly advised by the defendant that she did not require preventative screening because she was not sexually active. This was in dispute.

The plaintiff contended that the scope of the duty of care owed by the defendant involved an obligation on the defendant to be proactive in reminding, urging, and even arranging for the plaintiff to undergo preventative cervical screening.

The defendant denied the scope of the duty extended in that manner, but in any event, alleged the defendant did everything that was required and appropriate in raising the issue with the plaintiff. By the time of trial, the plaintiff suffered from incurable cervical cancer which limited her life expectancy.

Decision

Judgment for the defendant. Cavanagh J, delivered the decision on 15 May 2024.

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Ratio

His Honour referred to prior case law (including Kite v Malycha (1998) 71 SASR 321 and Tie v Hatziztavrou [1999] NSWCA 306) in which courts have accepted the scope of duty owed by a doctor can include an obligation on the doctor to follow up in circumstances in which the doctor was treating the patient for a potentially serious health problem that was known or suspected by the doctor.

The distinguishing factor here was that the case involved a failure to provide advice about preventative screening and the plaintiff did not present with symptoms at any time until it was too late.

In determining whether a GP might be required to follow up a patient, repeat advice or make further recommendations, His Honour identified this will depend on the particular doctor/patient relationship, having regard to a number of factors including:

• Whether the doctor is the patient’s regular GP, or the patient consults the doctor generally on a range of health issues;
• Whether it should be apparent to the doctor that the patient is seeing the doctor for specific women’s health issues;
• Whether there is something about the patient that would suggest to the doctor the patient may be symptomatic or vulnerable, or the patient may not have understood advice or demonstrated an unwillingness to follow the advice;
• Whether there is a standard, guideline or accepted medical practice which suggests that certain advice should be communicated in a particular way or followed up;
• What information is provided to the doctor by the patient in terms of what the patient had done or intended doing or did not want to do.

His Honour ultimately preferred the evidence of the defendant that appropriate advice about preventative screening was given, as this was consistent with the defendant’s extensive contemporaneous records and the plausibility of what actually transpired.

Even if a breach of duty had been established, causation was not proven because the plaintiff had a history of not following advice by the defendant, providing the defendant with incorrect information and the plaintiff’s failure to action a previous referral for a cervical screening test by the defendant.