Medical Negligence – Case Law Update – Delayed diagnosis – Austen v Tran [2023] ACTCA 44

Medical Negligence – Case Law Update – Delayed Diagnosis Austen V Tran [2023] Actca 44

In the matter of Austen v Tran [2023] ACTCA 44, the plaintiff, Ms Sandra Austen, commenced medical negligence court proceedings against the defendant, Dr Tuan Quoc Trana, seeking damages for personal injuries and losses as a result of injuries suffered by her caused by a delay in the diagnosis of non-Hodgkin’s lymphoma.

On 19 September 2017, the plaintiff was diagnosed with non-Hodgkin’s lymphoma. After a period of remission, her prognosis became terminal, and sadly, after this appeal was heard but before judgment could be given, the plaintiff passed away. The defendant is a general practitioner whom the plaintiff consulted on 17 October 2016 complaining of leg pain. The plaintiff brought a proceeding claiming that the defendant was negligent in the conduct of his examination of her, and in his failure to follow up with her in order to arrive at a diagnosis of the cause of her leg pain. The plaintiff alleged that had the defendant not failed to pursue a reasonable course of examination and investigation, her non-Hodgkin’s lymphoma would have been diagnosed earlier than it was, with the result that it would have been treated to the point that she would be in remission, if not cured.

The plaintiff claimed that a breach of duty of care was constituted by the defendant general practitioner ordering only blood tests and not organising a follow-up appointment.

On 24 May 2022, the primary judge of the ACT Supreme Court gave judgment for the defendant, holding that the defendant did not breach his duty of care to the plaintiff, and alternatively that if there had been a breach, the plaintiff had not established that any negligence of the defendant was a necessary cause of the plaintiff’s terminal prognosis.

The plaintiff appealed the orders of the primary judge, being that judgment be entered for the defendant with costs. The grounds of appeal concerned two topics:

1) errors in findings relating to the first consultation on 17 October 2016; and

2) errors in findings relating to causation.

In regards to appeal ground 1, the plaintiff claimed that the judge erred in failing to find that the defendant breached his duty of care to the plaintiff at the first consultation by providing medical treatment and medical advice to the plaintiff below that expected of a reasonable general medical practitioner. The plaintiff particularised the findings that she claimed should have been made, namely that the defendant breached his duty of care by failing:

(a) immediately to refer the plaintiff to the Canberra Hospital or Calvary Hospital for further investigation;

(b) immediately to refer the plaintiff to a specialist in order to diagnose the cause of appellant’s symptoms;

(c) to accept the plaintiff’s complaints of the level of her pain;

(d) properly to examine the plaintiff;

(e) to take and or record a proper history of the plaintiff’s symptoms;

(f) to explain to the plaintiff the potential seriousness of the plaintiff’s symptoms;

(g) to explain to the plaintiff that if the pain persisted, she should return to him for further investigation; and

(h) after receiving the negative results of the blood tests on 18 October 2016, to implement a plan in order to diagnose the cause of the plaintiff’s symptoms.

In regards to appeal ground 2, there were four sub-grounds of appeal in relation to causation, by which the plaintiff claimed that the judge erred:

(a) by finding that the plaintiff had not proved causation when the evidence supported a finding that a PET scan undertaken in 2016 at Canberra Hospital or Calvary Hospital would have identified the plaintiff’s lymphoma, which at that time if treated, would have led to a complete remission and cure of the plaintiff’s lymphoma;

(b) by finding that the plaintiff had not proved causation when the evidence supported a finding that a PET scan ordered by a specialist in 2016, after a referral from the defendant, would have identified the plaintiff’s lymphoma, which at that time if treated, would have led to complete remission and cure of the plaintiff’s lymphoma;

(c) by finding that the plaintiff had not proved causation when the evidence supported a finding that a PET scan or an MRI scan undertaken early in 2017 at the Canberra Hospital or Calvary Hospital would have identified the plaintiff’s lymphoma, which at that time if treated would have led to complete remission and cure; and

(d) by finding that the plaintiff had not proved causation when the evidence supported a finding that a PET scan or an MRI scan undertaken in about mid 2017 at Canberra Hospital or Calvary Hospital would have identified the plaintiff’s lymphoma, which at that time, if treated would have led to an additional 12 months of remission of the plaintiff’s lymphoma.

The plaintiff also argued that the primary judge erred in failing to consider in their assessment of breach of duty those matters that were required to consider by section 43(2) of the Civil Law (Wrongs) Act 2002 (ACT), which is regarding precautions. On that issue the Court held at [73]: 

We are not persuaded that the judge failed to take account of the matters that she was required to consider by s 43 of the Civil Law (Wrongs) Act. For one thing, the judge prefaced her consideration of whether the defendant’s duty of care was breached by setting out the entirety of s 43 at J[69]. 
 
Ultimately, on 29 November 2023, the Court of Appeal reviewed the evidence and the reasons for judgment by the primary judge, however, the Court of Appeal was not persuaded that the primary judge was in error. The plaintiff’s appeal was dismissed.  
 
Emily Wright and our team are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, including a medical negligence claim, please reach out to Emily Wright and Littles Lawyers today. 
 
Further blogs in relation to medical negligence and personal injury claims written by our Emily Wright can be found on our website. 

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