June 25, 2019

An Ipswich GP who allowed a patient to make his own way to the P.A. Hospital emergency room rather than call an ambulance to conduct the transfer has been ordered by a court to defend the patient’s out-of-time injury compensation claim for a severe spinal injury that resulted from delayed surgery to relieve his condition.
Steve Walker was under treatment from GP Susan Mogg for unexplained back pain but on 11 October 2013 presented to Dr Clive Tucker at another Ipswich medical practice with agonising pain in his upper back and paraesthesia in both legs.

An on-site CT scan revealed a possible tumour very close to his thoracic spine. The GP armed the patient with a referral to the Princess Alexandra Hospital emergency department and sent him on his way.

Perhaps not appreciating the urgent need for neurological intervention, Walker arrived at Ipswich Hospital emergency some time later, courtesy of a friend who had collected him from his home.

From there he was transferred to the PAH as an urgent case where a MRI was performed prior to surgery about 3 hrs 20 mins after his arrival, unfortunately too late to prevent permanent damage to his spinal cord from the tumour pressing against it.

In the course of Walker’s 2016 lawsuit against Dr Mogg and the Ipswich Hospital that alleged them accountable, two medical experts – in referring to Dr Mogg’s care of the patient – raised questions as to whether Dr Tucker could also have done better.

GP specialist Jenny Downes-Brydon was of the view that a patient presenting with progressive back pain and sudden neurological symptoms should have been treated as a medical emergency justifying immediate ambulance transport to an appropriate hospital.

And Professor John Raftos thought the patient ought to have been transported by ambulance no later than 3:30pm direct from the surgery to a neurosurgical centre of excellence, namely the PAH.

On the other hand Dr Lynch – the GP expert who was asked to advise specifically as to the appropriateness of Dr Tucker’s conduct – cleared him of any mistakes, that is until he had a change of heart in October 2017.

Lynch’s about face – more than four years after the incident – branded as negligent, Tucker’s failure to call an ambulance to his surgery to transport the patient to the PA Emergency.

Based on the new “material fact of a decisive nature” – constituted by Dr Lynch’s altered opinion – Walker issued fresh proceedings against Dr Tucker in July 2018 and applied to the court for an extension of the 3-year limitation period that applied.

Walker’s extension application came before Justice Sue Brown in Brisbane’s Supreme Court in December 2018.

To support his application, Walker tied in the opinion of neurosurgeon, Professor Noel Dan who reported in 2014 that – among other things – the paraplegia would likely have been avoided if surgery had been performed between 7pm and 8pm on the night of the transfer.

The only issue for the court’s determination was whether the alteration of Dr Lynch’s opinion in July 2017 was a material and decisive fact in the case of potential negligence against Dr Tucker for failing to call an ambulance.

Tucker’s insurers argued that the information or the opinion that was forthcoming from Dr Lynch in 2017 had been more or less already conveyed as early as 2014 by Dr Downes-Brydon and Professor Raftos.

Justice Brown however was of the view that Dr Lynch’s changed opinion was in the circumstances, a material decisive fact.

“Until that point in time he did not have evidence supporting a right of action against Dr Tucker that had reasonable prospects of success,” she ruled. The questions raised by the other doctors in 2014 were “was opinions that Dr Tucker had failed to reach the requisite standard of care”.

Mr Walker had been “positively advised,” she observed, that Dr Tucker had done what a reasonable and prudent general practitioner would have done and “made a deliberate decision not to commence proceedings against him based on” the available opinions.

But was Dr Tucker prejudiced by providing statements to Walker’s lawyers on the specific assurance that he would not be the subject of a claim?

Maybe so, but Justice Brown concluded – after careful consideration – such conduct “has [not] caused significant prejudice to him so as to preclude a fair trial”.

Thus Mr Walker will have his day in court against Dr Tucker in the coming months.

Walker v Tucker [2019] QSC 141 Brown J, 4 June 2019

Categories: Litigation & Law Practice , Civil procedure , GP Negligence

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