South Eastern Sydney Area Health Service & v King [2006] NSWCA 2

Summary

• Medicine is constantly evolving as time progresses with new discoveries and treatments and the law takes this into account. Turner Freeman Lawyers acted for Monique King who was successful in this medical negligence claim involving radical treatment by paediatric oncologists, studies about this treatment which caused her quadriplegia and the duty of doctors to keep up to date with the latest treatment information.
• Monique was 13 years of age at the time of the negligent treatment and 29 at the time of her hearing in 2005 before the NSW Court of Appeal. Monique had a tumour partly in the spinal canal which was partially removed and found to be malignant. Accordingly, she was referred to Professor O’Gorman-Hughes for treatment of her cancer. The estate of Professor O’Gorman-Hughes, specialist paediatric haematologist and oncologist was sued since he died before the trial in 2000.
• Professor O’Gorman-Hughes consulted other paediatric oncologists at the Prince of Wales hospital and based his treatment plan of Monique partly on a protocol known as “IRS-II” which is based mainly in the United States of America. A specific study using this protocol was carried out between 1978 and 1984 and Professor O’Gorman-Hughes came to know about this protocol in 1987 when it was published in a medical journal. He thought this protocol which related to malignant tumours in the skull was relevant to treating tumours in the spinal area (like Monique’s).
• A new protocol known as IRS-III was put into practice between 1984 and 1991 with a different group of patients and on 5 June 1987 an important change to the protocol was published which documented neurological complications suffered by one patient who was treated with the previous version of the protocol (IRS-II) and by six patients treated in accordance with the IRS-III protocol. The IRS group stated that it was unknown what factor/s caused these complications but it felt that doses of prophylactic intrathecal chemotherapy should be cut back.
• In 1998, Dr White, head of the paediatric oncology department at the hospital received a number of documents from a meeting of the paediatric oncology group in Florida in April 1998 (“the Orlando documents”) which included changes to the IRS treatment protocols. If these changes had been provided to Professor O’Gorman-Hughes, Monique would not have had the treatment which caused her quadriplegia. The difference in Monique’s treatment, if the more current Orlando documents had been considered, included having less frequent triple intrathecal therapy and does of cytosine arabinoside (“Ara-C”).
• At the first trial, the Judge decided that the hospital was vicariously liable (i.e. legally responsible) for the negligence of Dr White who breached his duty of care by failing to ensure he was aware of the latest IRS protocols as outlined in the Orlando documents, or if he knew about this information, by failing to have a system to provide this information throughout the department, including to Professor O-Gorman Hughes. The Judge found that it was entirely reasonable for Professor O’Gorman-Hughes to expect that Dr White would advise him of any relevant protocol changes since IRS-III but that he had not been advised of the changes by Dr White and that this breach of duty of care caused Monique to receive outdated treatment which caused her injuries. Accordingly, the Judge found that the hospital was negligent and ordered the hospital and Professor O’Gorman-Hughes’ estate to pay Monique $7 million in compensation for her damages.

NSW Court of Appeal

• The estate of Professor O’Gorman-Hughes and the hospital did not agree with the initial court’s decision that they were negligent. Accordingly, they appealed this judgment and argued, among other things, that there was no reasonable basis for Professor O’Gorman-Hughes to expect Dr White to give him any relevant information from the Orlando documents because these documents were given to Dr White on a personal basis, for a general purpose of providing him with a better understanding of another oncology group in which he had an interest. This appeal was decided on by the NSW Court of Appeal which noted that everyone was at a bit of a disadvantage in relation to the evidence (or lack of evidence) about what Professor O’Gorman-Hughes would have done and the extent to which he relied on Dr White to provide him with updated information about protocols since he died before the trial and therefore could not tell the court and give evidence about these matters.
• The Court of Appeal agreed with the initial Judges’ decision that Dr White did owe a duty of care to forward current information about oncology protocols and treatment (including the Orlando documents) and that his failure relating to this was negligent. The court found that the clear inference from all the evidence is that Dr White took part in regular weekly meetings of the paediatric oncology group and that he knew that his colleagues (like Professor O’Gorman-Hughes) needed information which he obtained from his overseas connections about treating patients.
• The court noted that Professor O’Gorman-Hughes was in a somewhat unusual position in treating Monique as he was relying on an overseas protocol including a radical, experimental and controversial procedure. The court noted that part of a doctor’s duty includes a duty to take reasonable care to keep informed before starting treatment of the kind in this case (radical, experimental and controversial) and that the whole nature of this treatment, which involved injections directly into Monique’s spinal canal and therefore her central nervous system, indicated that it was reasonably foreseeable that there might be some form of neurological complication.
• There were other issues which the Court of Appeal considered but it ultimately agreed with the finding by the initial Judge. The Court of Appeal confirmed the Judgment in favour of Monique for $7 million.

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This case highlights some of the complicated legal and medical issues involved in these claims, including the circumstances in which medical studies are legally relevant, the legal expectation of doctors to keep up to date with the latest treatment information and how to overcome gaps in the evidence due to a doctor passing away before the trial. In order to understand these complicated issues and have the best chance of winning, it is crucial to have lawyers with the right experience and knowledge who are prepared to go to a trial if a reasonable settlement cannot be achieved.

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