Misdiagnosis and delay: the benefit of hindsight

Misdiagnosis and delay: the benefit of hindsight

Coote v Kelly; Northam v Kelly [2016] NSWSC 1447

Misdiagnosis and delay cases in medical negligence provide unique challenges in the way that legal principles are applied.

In the most common medical negligence case, the injured person has to prove that the treatment received caused an injury. In misdiagnosis and delay cases, the injured person needs to prove that the treatment resulted in either misdiagnosis or a failure to diagnose a medical condition. In order to determine what injury arises from that treatment, we need to ask whether the error or delay has led to a worse medical outcome.

Determining what diagnosis should have been made, when the diagnosis should have been made, what treatment option existed at that time and what the likely prognosis would have been, can be a complex factual and medical question for the Court.

The NSW Court case of the late Mr Malcolm Coote demonstrates these complexities well. In September 2009 Mr Coote went to his GP, Dr Steven Kelly, due to pain and discomfort in the sole of his foot. Dr Kelly diagnosed a plantar wart and commenced cryotherapy treatment which continued for nine months.

By January 2011 Mr Coote was still having pain and discomfort. Unable to get an appointment at his usual clinic, Mr Coote attended a different clinic and saw Dr Hiddings. Dr Hiddings also diagnosed a plantar wart and commenced cryotherapy treatment. When the 'wart' did not respond to cryotherapy, Dr Hiddings performed a biopsy which showed that the lump was in fact a melanoma. By the time the melanoma was diagnosed in March 2011, the cancer had spread to different parts of Mr Coote's body. Mr Coote died of his illness on 23 May 2012.

The two main issues in the case were:

  1. Was the lesion cancerous at the time it was diagnosed as a plantar wart by Dr Kelly?; and
  2. Had the cancer already spread by the time Dr Kelly should have diagnosed it as a melanoma?

Wart or cancer

The Court took particular interest in the evidence from lay and medical witnesses as to the appearance of the lesions at the time it was treated by Dr Kelly. The Court considered whether this could have been a plantar wart that turned cancerous, a lump that was always cancerous and was never a plantar wart, or that the melanoma and the plantar wart developed next to each other (i.e. they were both present at the same time).

The evidence of Mr Coote, given before his death at a special bedside hearing, was that the lesion was dark and raised and should have led to the conclusion that the lesion was not a wart, but rather a melanoma, when Dr Kelly was treating it.

Dr Kelly relied on his notes, which were very brief, as he had no recollection of treating Mr Coote by the time he gave evidence at trial. He was adamant that the appearance of the lesion was consistent with a plantar wart, and that had he seen any of the'red flag' characteristics of a melanoma he would have considered that as a potential diagnosis.

The Court decided that it could not conclusively determine that a melanoma was present at the time of Dr Kelly's treatment. The Court found that the lesion had the appearance of a plantar wart at the time it was treated by Dr Kelly, and that the presence of a melanoma could not have been reasonably detected by him at that stage.

The burden of proof

In medical negligence cases, the injured person has the burden of proving that if the treatment had been correct, the ultimate outcome would have been improved. Although the case failed for the previous reason, the Court also found that the evidence did not establish whether or not the cancer had metastasised by May 2010. The plaintiff therefore failed to prove his case.

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