The defendant, a specialist respiratory physician, referred the plaintiff to a cardiothoracic surgeon for treatment of a lung mass following the defendant’s diagnosis of Stage II large cell lung cancer, based on clinical assessment and medical investigations. The plaintiff subsequently underwent left lower lobectomy and lymph node dissection surgery. Post-surgery, analysis of the tissue dissected found that there was no cancer.

Broadly, the plaintiff alleged that the defendant was negligent for referring him to surgery on the bases of a differential diagnoses only of lung cancer, and that further investigations should have been performed prior to referring him.

After considering the facts and evidence on liability, the Court stated at [117]:

“… the documentary evidence and the plaintiff’s oral evidence … does not support a finding that the defendant either advised the plaintiff that lung cancer was a certain diagnosis or advised him to have surgery. Indeed, the plaintiff’s concessions during cross examination, consistent, with the documentary evidence and in particular the Liverpool Hospital admission forms, establish that the defendant arrived at a differential diagnoses of cancer, discussed possible diagnosis of pneumonia and infection with him, and referred the plaintiff to cardiothoracic surgeon …  for diagnostic opinion and determination of whether surgery was the appropriate treatment course. The unanimous opinion of the expert liability witnesses, they being specialist respiratory thoracic physicians and a specialist radiologist, was that the defendant’s referral of the plaintiff … on the basis of the results of investigations obtained … was an act in a manner that at the time the service was provided, was widely accepted in Australia by peer professional opinion as competent professional practice …”

Accordingly, the defendant was found to be not negligent and not in breach of his duty.

To read the decision in Goran Petrovic v Dr Anthony Johnson [2017] NSWDC 205, click here.