Facts
In the evening on 25 December 2017, the plaintiff presented to the Emergency Department at the Hospital. The plaintiff had central chest pain associated with shortness of breath and nausea. Blood tests and a chest X ray were done. Later that evening the plaintiff was discharged. The plaintiff was told that she possibly had gastro-oesophageal reflux disease or early pancreatitis.
The plaintiff relied on 3 key dates, in the alternative, as the times at which the Hospital was negligent:
1. Immediately after a CT scan on 1 January 2018.
2. Immediately after a CT scan on 6 April 2018.
3. Immediately after a CT scan on 22 April 2018 and an endoscopic ultrasound (EUS) on 26 April 2018.
The plaintiff said that each of those CT scans showed a discrete mass in the pancreas, confirmed on EUS. It was alleged that, because there was a mass, the Hospital should have obtained a surgical opinion. If this had been done, the tumour would have been removed earlier than 11 November 2018.
The Hospital admitted that the failure to obtain a surgical opinion after 26 April 2018 was a breach of its duty of care to the plaintiff but denies that the breach caused any of the injury, loss or damage claimed by the plaintiff. The Hospital otherwise denies that it breached its duty of care to the plaintiff.
Reasoning
The ACT Supreme Court found that none of the CT images showed a clearly visible cancerous lesion. The diagnosis of acute pancreatitis was reasonably open to the treating doctors.
The Plaintiff claimed that the Hospital should have performed an MRI or PET scan to diagnose pancreatic cancer on or after each of the dates above. The preponderance of medical evidence led the Court to decline to find that a PET scan would have made any difference if performed at any of the dates above. This is because PET scan is not often much use in differentiating cancer from pancreatitis. An MRI would likely have shown the cancer but the plaintiff refused to have one when referred. When she eventually had an MRCP, it did not show the cancer.
The Court preferred evidence from Dr Burge in relation to causation, a medical oncologist who subspecialised in gastrointestinal medical oncology.
In Dr Burge’s view, it was not likely that the plaintiff would have avoided a terminal diagnosis if her pancreatic cancer had been diagnosed in April 2018 rather than November 2018. Pancreatic adenocarcinoma carries a dismal prognosis and the vast majority of people who are diagnosed with the disease, die from it.
Dr Burge did not agree with Professor Fox who said that if the plaintiff had been diagnosed with pancreatic cancer in January 2018 she would have undergone a partial pancreptectomy and possibly adjuvant chemotherapy and that, given the small tumour size at that time, it is likely she would have avoided a terminal diagnosis. Dr Burge said that the plaintiff still had pancreatic adenocarcinoma in January 2018, and the prognosis for pancreatic adenocarcinoma is poor.
In addition, Dr Burge said, the plaintiff has a unique, and rare, molecular subtype of pancreatic adenocarcinoma. With such unique biology, he could not be certain of the impact of surgery or adjuvant chemotherapy on prognosis as there is no data looking at this very rare subtype. This clouded his ability to state with any certainty what impact earlier treatment may have had.
If the plaintiff’s pancreatic cancer had been diagnosed and treated earlier in 2018 (including in January 2018) it is not likely that she would have avoided adjuvant chemotherapy because it is routinely used after surgery for pancreatic adenocarcinoma, regardless of stage, as all patients are considered to be at sufficiently high risk of recurrence to warrant chemotherapy.
Professor Morris said that the same procedure would have been done, including the removal of the spleen, regardless of when the operation had taken place. Dr Burge said that the plaintiff would have undergone chemotherapy treatment regardless of when the operation had taken place.
Accordingly the pain and suffering from the operation and the chemotherapy would not have been avoided if the operation had been done earlier.
The Outcome
The plaintiff failed to prove that, but for the alleged negligence she would have undergone her surgery earlier than November 2018. As to causation, the court found that it was not likely that the plaintiff would have avoided a terminal diagnosis if her pancreatic cancer had been diagnosed earlier in April 2018 rather than November 2018. The plaintiff’s negligence claim against the hospital was dismissed.
Implications
This decision highlights the importance of the causation analysis in Courts’ assessments of negligence in the medical context. It is sometimes the case that, even if an alternative treatment is provided earlier, the nature of the disease suffered is such that earlier intervention would not have changed the outcome for the patient. Pancreatic cancer is an example of that serious end of the disease spectrum, allowing (and indeed properly) necessitating reliance on causation arguments to come to the fore.
The consideration of the weight given to different experts’ evidence in this matter and the Court’s preference for evidence from a current practising medical oncologist with clinical experience specifically in relation to pancreatic cancer is also a relevant takeaway. Dr Burge treated many patients with pancreatic ductal adenocarcinoma of all stages in his clinics. Professor Fox (a competing expert and a retired haematologist and oncologist) had not had any relevant clinical experience in treating patients with any form of cancer since 2006. Before that, he was not a specialist in pancreatic cancer. The Court described Dr Burge as having “significantly more experience…as to current issue sin pancreatic oncology” than Professor Fox.
To read the full decision in Alrifai v Australian Capital Territory [2022] ACTSC 48 click here
