Key Points
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Despite the absence of clinical records prepared by the defendant, the matter was successfully defended.
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In reaching this decision the Court had the benefit of another practitioner’s notes.
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The Court was satisfied, where the plaintiff had died from a melanoma in the same place as a lesion diagnosed as a plantar wart, that the diagnosis and treatment was appropriate care in the circumstances.
These Supreme Court of NSW proceeding relate to an alleged failure to diagnose a melanoma on the sole of the foot while the patient received treatment for a plantar wart.
On several occasions in 2009 and 2010, Mr Coote (the deceased) consulted Dr Kelly about a lesion. Dr Kelly diagnosed a plantar wart and treated it with cryotherapy. The plaintiff consulted Dr Wall in September 2010, who provided the same diagnosis and treatment.
In January 2011, the plaintiff consulted Dr Hiddins, who diagnosed the lesion as a plantar wart and treated it with cryotherapy on several occasions. It was not until 24 February 2011 that Dr Hiddins observed pigmentation, growth and a change in appearance. Dr Hiddins therefore performed a biopsy of the lesion in March 2011, which revealed malignant melanoma. Mr Coote later died due to metastatic melanoma in May 2013.
The brevity of Dr Kelly’s note taking of his consultations with the deceased was criticised by the Court. It was also problematic that he could not remember the lesion or consultations themselves, which resulted in the need for Dr Kelly to give evidence based on his usual practice.
Dr Kelly stated that by writing “plantar wart” it was a shorthand way of saying that he had examined the lesion and had been satisfied from the colour, shape, contour and size that it had features of a plantar wart and did not have melanotic features. If there was any change in the size or other features of the lesion, during the nine-month period he treated it, he would have inspected it each time the deceased came in for treatment. Dr Kelly stated that he would not have treated the lesion with cryotherapy if it had been pigmented and for that reason he was satisfied that it was a plantar wart.
Although Dr Kelly’s note taking was inadequate the Court held that it was not a precaution that should have been taken to prevent risk of harm nor was it causally related to the damage suffered by the deceased. Based on the evidence provided, the Court was satisfied that Dr Kelly properly assessed the lesion.
Dr Hiddins’ evidence was entirely supportive of Dr Kelly’s assessment that the lesion was a plantar wart based on her description of it and its lack of pigmentation until 24 February 2011. It was also significant that she examined the lesion under magnification.
The Court accepted the reliability of the evidence of Drs Kelly, Wall and Hiddins that at all times when they saw the deceased until the consultation with Dr Hiddins on 24 February 2011, the lesion did not display pigmentation nor any other indication that it was anything other than a plantar wart. Accordingly, the Court found that the treatment given to the deceased was entirely reasonable in the circumstances.
The Court held that even if a melanoma was present, it was not discernible by the exercise of reasonable care on the part of the doctor. The judge considered that the defendant acted in a manner that was widely accepted by peer professional opinion as competent professional practice.
The case highlights the importance for treating practitioners to ensure adequate note taking to demonstrate proper examination, the exclusion of other possible diagnoses and any changes apparent in subsequent consultations. Although a junior doctor, Dr Hiddins’ notetaking was commended by the Court, which corroborated the evidence provided by Dr Kelly and assisted the Court in reaching a view about the appearance of the lesion. In the absence of Dr Hiddins’ notes the Court may have been less willing to accept the evidence of Dr Kelly, which in the absence of notes and a specific recollection to the consultations, was based on his usual practice.
Post by Monica Pecker and Karen Kumar