Last month (part one) I discussed a ‘delayed diagnosis’ medical negligence case decided in Western Australia involving delay in diagnosing and treating a right median nerve injury.
This month’s article involves a case of delayed diagnosis of cancer, decided by the District Court of New South Wales in April 2016.
Claims of this nature are not unusual and although in the case discussed below, the delay did not compromise the life expectancy of the claimant, sadly this is not always the case with these types of claims.
Freestone v Murrumbidgee Local Health District  NSW DC 53
In January 2004 Ms Freestone was admitted to Wagga Wagga Base Hospital with abdominal symptoms of some severity. A CT scan was performed which demonstrated inflammation in the abdominal cavity. She was treated for acute pancreatitis and discharged on 8 January 2004.
Although the radiologist reported inflammation in the abdominal cavity, an abnormality of the left kidney which was also evident on the CT images was not reported.
In 2007 and 2008 Ms Freestone experienced increasingly frequent urinary tract symptoms and in June 2008, 4.5 years after the abdominal CT scan in June 2004, her GP referred her for an ultrasound and CT investigations. It was at this stage that the abnormality, a lesion, known as a “Wilson’s Tumour,” of the left kidney was reported. The lesion was larger than it had been in 2004.
She underwent surgery to remove the affected kidney, chemotherapy and radiotherapy.
Her claim was against Murrumbidgee Local Health District, (“the defendant”) being the employer of the radiologist involved.
Ms Freestone asserted that the failure of the radiologist to identify and report the abnormality of her left kidney in January 2004 was negligent.
The defendant argued that the appearance of the left kidney on the scan in 2004 was not abnormal.
However the expert evidence relied on by Mrs Freestone was that the lesion was unusual in that it was not commonly found in patients of the age and gender of Ms Freestone in 2004, the lesion was potentially fatal, the abnormality was obvious and clearly visible and it should have been reported. The Court agreed.
The trial judge concluded, based on careful consideration of the expert evidence given at trial, that Mrs Freestone’s surgery to remove the kidney, radiotherapy and chemotherapy would have been necessary even if the lesion had been reported in 2004 and as such she was not entitled to compensation for having to undergo the above treatment.
The trial judge also noted that at trial it had been 7 years since the nephrectomy and Mrs Freestone had not had any recurrence of cancer or ongoing physical symptoms resulting from her cancer apart from some general deconditioning.
The judge therefore had to decide whether Mrs Freestone had suffered any loss at all because of the delayed diagnosis.
Despite the delayed diagnosis not having compromised the ability to treat Mrs Freestone’s cancer, she was ultimately still entitled to a substantial damages award.
In assessing her compensation entitlements, the Court took in to account the fact that:
- During the 12 months prior to diagnosis in July 2008, Mrs Freestone suffered from urinary tract symptoms which increased in frequency over time causing her fatigue, aches and pains in her limbs and pain on the left side of her body. She would not have experienced these if the lesion had been reported in June 2004;
- Following diagnosis in July 2008, Ms Freestone underwent a biopsy during which the needle penetrated her lung causing her significant pain. The Trial Judge concluded that had she been diagnosed sooner, the biopsy would probably have been done by another radiologist who might have more accurately performed the biopsy, without penetrating her lung. The judge therefore found that the injury and pain and suffering resulting from the failed biopsy were causally related to the failed diagnosis;
- The delay in diagnosis caused Ms Freestone considerable anger, depression, anxiety and panic attacks and she was diagnosed with a Major Depressive Disorder. She lost her trust in the medical profession. She worried that the delay in diagnosis would reduce the likelihood of her cancer being successfully treated;
- It had been her ambition to practise as a psychologist providing music therapy to cancer sufferers however her studies at the University of New South Wales were compromised because of her difficulty concentrating, fatigue and depression;
- Although the Court concluded that Mrs Freestone’s psychiatric problems were partly caused by her cancer, (which the defendant did not cause and was not liable for), they were also satisfied that the delay in diagnosis and the failed biopsy were major contributing factors to her ongoing condition and she was therefore entitled to be compensation for same.
She was awarded damages of $609,939.50. The majority of the monies, approximately $328,000 was for her past and future loss of earnings and superannuation benefits.
LLB, GDLP, BA
Tiffany has worked as a solicitor in a number of jurisdictions – Western Australia (Perth), Queensland (Brisbane) and South Australia. She is an extremely experienced solicitor in personal injury litigation and has handled some of the most complex and challenging cases involving brain, spinal and catastrophic injury claims. She is also expert in medical negligence claims. She has experience in the specialist area of claims arising out of serious mining accidents. She also manages motor vehicle accident, public liability and work injury claims.
The information contained in this article is of a general nature only and should not be treated as legal advice. To obtain legal advice regarding your particular circumstances, please contact our office.