March 29, 2015

Nancy Mules consulted GP Kaylene Ferguson about neck pain on four occasions in September 2008.
On her fourth visit on 25 September, Ferguson admitted Mules to Cairns Private Hospital for investigation, including for possible meningitis and the next day the diagnosis was confirmed. Unfortunately by then debilitating consequences of the disease were unpreventable and among other disabilities, she was left blind.

On her first presentation on 12 September, she had complained of headaches. She was in much worse condition when she returned on 18 September at which time a CT scan was arranged.

Nancy returned again the following day to discuss the CT results and learned for the first time she had five-disc bulges in her neck.

No physical neck examination was undertaken by the GP on either 18 or 19 September.

She later received medical advice that – on countback – a specialist referral on 19 September would have resulted in treatment no later than 23 September and would most likely have prevented the worst of the infection’s symptoms.

In August 2011 she filed a lawsuit against Ferguson claiming that had she performed a physical neck examination during the consultations of 18 or 19 September, she would likely have been alerted to the possibility of meningitis, for which a specialist referral – then and there – should have been made.

In March 2014 after an 11 day trial, Justice James Henry assessed Nancy’s damages at over $6.7 million but dismissed her claim.

He found Dr Ferguson – by omitting a physical examination and failing to enquire further about the symptoms of headache and facial flushing – failed to act to the standard of reasonable GP and was therefore negligent, but concluded such examination was unlikely at that stage to have prompted a provisional diagnosis of meningitis.

This conclusion was premised on a conclusion that at none of the consultations had “Nancy being holding her neck stiffly”.

He also concluded the GP should be afforded s 22 Civil Liability Act liability immunity on grounds that her conduct did not offend the peer-equivalent standard of professional care because all symptoms Nancy reported on 12, 18 and 19 September were consistent with the disc disorders revealed in the CT scan.

On appeal, Nancy contended that the “facial flushing”reported could never have been associated with the disc condition and that in any event her reported symptoms of headache and neck stiffness were also indicative of the meningitis that was ultimately found to be afflicting her.

And contrary to the trial judge’s findings, she pointed to evidence from chiropractor Dennis Collis and physiotherapist Elsmore that they both observed her holding her neck stiffly during treatment over the period. The same observation – she claimed – should have stood out to Ferguson.

Appeal Justices Margaret McMurdo and David Boddice accepted Nancy’s argument. In their view, had Dr Ferguson examined Nancy’s neck with a “chin on chest test” she ought likely have suspected by 19 September – given her deteriorating condition and the history of headaches and facial flushing – that an urgent specialist neurological referral was prudent.

Cryptococcal meningitis is a rare, insidious infection but after all, is more common in tropical areas like Cairns. It is well known that delay in diagnosis and treatment can have catastrophic results.

In a dissenting judgement, appeal Justice Peter Applegarth ruled that Nancy’s withholding from the GP who symptoms nausea and vomiting; and because by that stage she did not have a raised temperature or sensitivity to light, the doctor could have just as properly provided – as she did – a provisional diagnosis associated with the abnormalities reported on the CT scan.

Although of the view that failure to perform a neck examination was negligent and that had a referral been given of 19 September her disabilities could have been avoided, further history taking and a physical neck exam, could just as likely have resulted in the diagnosis actually provided.

The 2-1 result means the doctor’s insurer must pay up $6.7 million in damages assessed by the trial judge. It also means that an appeal attempt to a higher court is possible.

Mules v Ferguson [2015] QCA 005 Margaret McMurdo P, Applegarth and Boddice JJ 06/02/2015

Categories: Personal Injury , Litigation & Law Practice

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