“Probable not possible”
A review of the High Court decision in Tabet v Gett (April 2010)
This medical negligence case has finally resolved the issue of whether a patient is entitled to be awarded compensation for an injury in circumstances where they are unable to prove, on the balance of probabilities, that the breach of duty of care on the part of the health practitioner was a cause of the injury. It is a case about the standard of proof in negligence cases.
Before examining the facts and the judgement, let’s first revisit the three elements of a negligence case. The onus is on the patient to establish that:
1. The health practitioner (e.g. a dentist) owed him/her a duty of care; and
2. The health practitioner breached that duty of care; and
3. The breach was a cause of damage.
The recent High Court decision in Tabet v Gett deals with the third element. It is a case which decided that compensation cannot be awarded for “the loss of the chance of a better medical outcome”. The court wants evidence of what is probable, not what is possible.
Whilst this case involved a specialist medical practitioner, the decision is relevant to dental practitioners, dental specialists, oral maxillofacial surgeons and indeed, all health professionals in Australia.
Reema Tabet was born in 1984 and at the time of the relevant events was a six year old girl. Dr Maurice Gett is a paediatrician and at the time of the relevant events was a Visiting Medical Officer at a children’s hospital in Sydney. The salient facts are as follows:
• Reema was admitted to hospital on 11 January 1991 and came under the care of Dr Gett. She had a recent history of chickenpox. Both before and after that illness she had suffered from headaches, nausea and vomiting. Dr Gett made a provisional diagnosis that Reema was suffering from chickenpox, meningitis and encephalitis.
• On the morning of 13 January her father told hospital staff that Reema was staring and unresponsive. It was observed that her pupils were unequal and the right pupil was not reactive. Dr Gett ordered that a lumbar puncture be performed.
• On 14 January Reema had a seizure. A CT scan and EEG were performed disclosing a medulloblastoma (brain tumour).
• Surgery to remove the tumour was performed on 16 January. Reema subsequently received radiotherapy.
• Reema suffered irreversible brain damage.
• Reema, through her uncle, sued Dr Gett alleging negligence and seeking substantial compensation.
Elements 1 & 2: Did Dr Gett owe Reema a duty of care and was that duty breached?
The case was first heard in the Supreme Court of NSW. There was no issue that Dr Gett owed Reema a duty of care. Following careful review of the facts and expert evidence the trial judge found that Dr Gett should have ordered the CT scan on 13 January when her neurological condition deteriorated. The failure to do so amounted to a breach of the duty of care he owed to Reema. This finding was not overturned by the Court of Appeal or the High Court.
Element 3: Did the breach cause damage?
The Supreme Court
Having reached the view that Dr Gett had breached his duty of care to Reema, the Supreme Court trial judge then had to decide whether the breach was a cause of brain damage. After hearing all the expert evidence the trial judge found that there were four contributors to the totality of the brain damage:
1. The tumour and associated hydrocephalus
2. The neurological event that occurred on 14 January
3. The surgery on 16 January
4. The post surgery radiotherapy
The lawyers for Reema put two arguments. Firstly, they argued that the breach (failure to order a CT scan on 13 January) caused or contributed to cause her injury, loss and damage. In the alternative, they argued that the breach led to “the loss of an opportunity to avoid injury, loss and damage”.
It was argued that had a CT scan been performed on 13 January the tumour and hydrocephalus would have been diagnosed and appropriate treatment (corticosteroids) administered in an attempt to reduce the intracranial pressure. The lawyers for Reema argued that the failure to act appropriately on 13 January deprived Reema of the chance of a better medical outcome and that she should be compensated for that loss.
The trial judge found that Reema had not discharged her onus of establishing that, on the balance of probabilities, the discovery of the tumour following a CT scan on 13 January would have led to Reema being treated in such a way as would have avoided the seizure and deterioration on 14 January. However, the trial judge decided that as a result of the breach by Dr Gett on 13 January, Reema had lost the chance of a better medical outcome in relation to the brain damage that occurred on 14 January. The trial judge accepted that the failure to relieve intracranial pressure during the 24 hour period prior to the seizure on 14 January was causative of some brain damage. With respect to the loss of chance of a better medical outcome the trial judge stated that the chance was “not so low to be speculative, but was a good chance, although less than a 50% chance”.
The judge assessed the damages referable to her entire brain damage to be around $6 million. He found that her decline on 14 January contributed to her ultimate disabilities and assessed that contribution to be 25%. This had the effect of reducing any award to $1.5 million (25% of $6 million) as Dr Gett was only liable for the damage referable to the breach on 13 January. The trial judge then assessed that the loss of a chance of a better outcome, that is avoiding the damage that was referable to the deterioration on 14 January was 40%. So, the trial judge ultimately awarded Reema around $600,000 in damages representing 40% of 25% of $6 million.
The decision was in keeping with previous decisions in the NSW Court of Appeal (Rufo v Hosking 2004) and Victorian Court of Appeal (Gavalas v Singh 2001). So the judge regarded himself bound by that case law.
NSW Court of Appeal
Dr Gett appealed to the Court of Appeal of NSW. Whilst the Court of Appeal did not overturn the finding of negligence against Dr Gett, it did find that Reema had not discharged the onus to establish that the breach on 13 January was a cause of damage to her brain. Therefore, the Court of Appeal overturned the award of $600,000 in favour of Reema.
Reema Tabet was subsequently granted leave to appeal to the High Court of Australia. The High Court was asked to decide whether Reema should be awarded compensation in circumstances where she could not prove on the balance of probabilities that the negligence of Dr Gett caused damage to her brain but where the evidence indicated that she had lost the opportunity of receiving treatment that may have reduced the intracranial pressure and therefore avoided the further brain damage that occurred on 14 January.
High Court of Australia
All six judges of the High Court dismissed the appeal brought by Reema Tabet and confirmed the decision of the Court of Appeal. In doing so the High Court effectively overturned the earlier cases allowing compensation for loss of a chance of a better medical outcome.
Reema was unable to prove that it was probable that, had treatment by corticosteroids been undertaken earlier, the brain damage which occurred on 14 January would have been avoided. The evidence was insufficient to be persuasive.
Justice Keifel expressed the view that the standard of proof required of the patient is actually relatively low. It does not require certainty or precision. It requires that a judge be persuaded that something was probably (not possibly) a cause of the harm the patient suffered.
Some interesting facts about the High Court of Australia
• Established in 1901 by section 71 of the Constitution. The first Bench comprised three Justices. This increased to seven by 1913.
• The High Court is the highest court in Australia. Prior to 1975 there was an ability to appeal from the High Court to the Privy Council in England.
• Three of the seven current Justices are female. Three of the seven are from NSW, one from Queensland, two from Victoria and one from Western Australia.
• In the last three years the High Court has delivered an average of 57 judgments a year.
Practical application of the decision in dental negligence claims
Commentary by Dr Stephen Harlamb, Endodontist and Peer Advisor, Dental Defence Advisory Service ADA (NSW)
As has been shown in previous High Court decisions (e.g. Rogers v Whitaker 1992), medico-legal situations can be ‘transposed’ to the dental environment. Duty of care (and its possible breach), informed consent and negligence are just as readily applied to the dental scenario as the medical one in which it originally took place. For example, the principles discussed above as it relates to a failed referral could be applied to an endodontic scenario as follows:
Dr A, a general dental practitioner, examined patient B in January. On presentation the patient was complaining of buccal swelling towards the gingival margin and mild discomfort associated with 46. Dr A did not take a radiograph and diagnosed a periodontal abscess based on clinical findings only. The patient was placed on antibiotics (Flagyl 400 mg and Amoxil 500 mg). The patient continued to complain of swelling and periodic episodes of moderate to severe pain and was repeatedly prescribed antibiotics and painkillers. Finally, in April, he was referred to an endodontist who discovered the following:
There was a buccal fistula, the tooth was non-responsive to CO2 while radiographically there was a furcation radiolucency in association with a well-established resorptive defect within the distal root. The endodontist recommended extraction as the prognosis was hopeless and consideration be given to implant placement. A complaint ensued. During the proceedings, experts for the patient established that the dentist breached the duty of care owed to the patient. The patient should have been referred to the endodontist in January. In turn, the patient argued that he had lost the opportunity of saving the tooth. However, of note here is that the experts all agreed that even if referred in January, the tooth would have been lost. The evidence did establish that the patient experienced significant pain and suffering between January and April. The patient had to take time off work, suffered economic loss and needed to purchase repeat pain-killing and antibiotic medication.
In this case, it would be argued that the patient has not discharged the onus of establishing, on the balance of probabilities, that the breach (failure to refer) resulted in the need to extract the tooth and therefore no compensation should be awarded for the loss of the tooth (e.g. compensation for implant replacement). However, the patient may be awarded compensation for the pain and suffering and economic loss suffered as a result of the three-month delay in the performance of the extraction.
Marianne Nicolle, Principal