Panagoulias v The East Metropolitan Health Service  WADC 118
While turning on its own facts, the case of Panagoulias v The East Metropolitan Health Service  WADC 118 (Panagoulias v The East Metropolitan Health Service) highlights that a defence of peer professional practice will not be sufficient in cases of delayed diagnosis and treatment where there is not a well-reasoned explanation for the delay based upon best practice and substantial evidence.
This is a decision of the District Court of Western Australia concerning a claim for damages brought by Peter Panagoulias (the plaintiff), through his friend Mrs Panagoulias, in respect of the delayed diagnosis and antibiotic treatment that he received at the Royal Perth Hospital (RPH) for bacterial meningitis, which resulted in severe and irreversible brain damage. The following is a summary of the key issues addressed in this decision, including the court’s application of s 5PB of the Civil Liability Act 2002 (WA) (the Act).
In 2006 and 2007, the plaintiff underwent several unsuccessful surgeries to remove a benign brain tumour. Both surgeries were carried out by Mr Popovic, a neurosurgeon and were not successful in completely removing the tumour. During the second surgery, in September 2007, the plaintiff’s carotid artery was nicked causing the operation to be stopped and the carotid artery was patched up, the sphenoid was filled with a small piece of fat and a small perforation made in the floor of the cranial cavity was packed with a fat graft. The plaintiff’s condition after surgery was unremarkable. At a follow-up appointment on 26 September, Mr Popovic’s notes described a constant discharge of ‘green snot’ as coming from the plaintiff and prescribed a course of antibiotics. At the consultation, Mr Popovic arranged for a follow-up angiogram for 5 October 2007 to further investigate a possible pseudo-aneurysm that he considered the plaintiff might develop. On 5 October, after returning from the RPH for the angiogram, while cooking dinner, the plaintiff sneezed out what appeared to be a ‘lump of tissue stuff’. The plaintiff called Mr Popovic, and the telephone records showed that the conversation lasted approximately 2 and a half minutes. Mrs Panagoulias gave evidence that she heard the plaintiff describe the fatty tissue that had come out and ask what he should do. She gave evidence that she did not hear what was said by Mr Popovic and that the plaintiff told her that he had been told to put the tissue in a jar and bring it to his next consultation with Mr Popovic, but did not mention any other specific advice given by Mr Popovic.
After the call, the plaintiff appeared quite normal to Mrs Panagoulias. Between approximately 2:00am to 3:00am, the plaintiff woke up with a severe headache and took panadeine forte. Throughout the night, the plaintiff’s headache worsened and at around 8:30am, he took more panadeine forte. At 9:07am, Mrs Panagoulias called Mr Popovic and was advised to take him to the emergency department immediately.
The hospital records for 6 October 2007 noted that the plaintiff presented for triage at 9:53am with recorded symptoms including a severe headache and a ‘stiff neck’ and that the ‘neurological registrar was aware’. The triage nurse categorised the plaintiff as a level 2 on the scale of 1-5 that is used in Emergency Departments throughout Australia and New Zealand. Level 2 ‘signifies a potentially life-threatening illness, requiring the patient to be seen by a doctor within 10 minutes of arrival’. There was a nursing note at 10:20am that recorded ‘that the plaintiff was complaining of a “severe throbbing headache – neck stiffness – photophobia’.
The plaintiff was reviewed by Dr Wardman, the resident medical officer, at 10:30am. Dr Wardman recorded an ‘occipital headache increasing overnight (unable to sleep)’, ‘neck stiffness’ and an ‘absence of photopobia’ and referred to the recent neurosurgery undergone by the plaintiff as well as the ‘yellow-green mucus flowing from the patient’s nose since his operation’. Dr Wardman’s notes also recorded a temperature of 37.6 degrees Celsius. Dr Wardman later recorded several ‘alternative diagnoses: subarachnoid haemorrhage and meningitis. Dr Wardman also recorded a plan for treatment ‘including a discussion with both the neurosurgical registrar and the neurosurgeon, the administration of analgesia, fluids and regular medications’. However, the plan did not include consulting with an infectious diseases specialist and nor did it include a ‘CT scan or lumbar puncture’.
Dr Wardman did not speak with Dr Kern, the neurological registrar, for approximately one hour. At 12pm, the notes of this discussion were recorded as follows: ‘advised by Dr Popovic not for CT of the head as unlikely bleed/subarachnoid haemorrhage…and need to exclude meningitis or make a clinical decision’.
Dr Wardman recorded that he spoke with Dr Wilson, the consultant specialist physician in emergency medicine on duty, about the plaintiff and nursing notes showed that Dr Wilson reviewed the plaintiff at approximately 12:15pm. Dr Wilson recorded that the plaintiff had a ‘sudden onset of severe headache’ and ‘mild photophobia and no nausea or vomiting’. The trial judge notes that ‘Dr Wilson observed that the plaintiff was lying in a darkened room and looked unwell. Dr Wilson also recorded a temperature of 38.3 degrees Celsius and ‘clammy’, and observed ‘menigism (involuntary spasm of the neck) on lifting head’.
Dr Wilson’s recorded diagnosis was that ‘subarachnoid haemorrhage needs excluding’ and she recorded that alternatively ‘the fever suggested a differential diagnosis of chest infection or meningitis’. Dr Wilson’s plan for the patient was for a chest x-ray and to discuss the patient with Dr Kern. The notes showed that Dr Wilson paged Dr Kern at this time. However, the discussion with Dr Kern did not take place until approximately 2:15pm. The plaintiff was reviewed again at 2:15pm by Dr Wilson and booked in for a ‘head CT’ at 3pm. The nursing notes recorded that the plaintiff ‘returned from head CT’ at 3:47pm.
Dr Kern’s clinical notes recorded seeing the plaintiff, but did not record the time. The nursing notes recorded that ‘Dr Kern performed a lumbar puncture at 1500 hours.’ Dr Wilson gave evidence that she thought Dr Kern reviewed the plaintiff at around 2:30pm. Dr Kern’s notes recorded the results of analysis of the cerebrospinal fluid (CSF) from the lumbar puncture as ‘LP slightly turbid’. Following this, there was a further recording of a ‘discussion with Dr Christianson infectious disease consultant’ and ‘meropenem 2 g’, followed by ‘CT head – mild HC’ and ‘mild generalised oedema’.
At 5:30pm, the plaintiff was given 2 g of meropenem antibiotic intravenously. Corticosteroids were not given at this time, despite the hospital staff being aware ‘that Mr Panagoulias lacked the capacity to produce cortisone naturally’ as a result of the first tumour removal operation that resulted in damage to his pituitary gland. After being admitted to the ward at 6:40pm, the plaintiff was observed as being ‘ok’ at 8pm, and 8 minutes later he was ‘found unresponsive’ and experiencing ‘hemiplegia’. Shortly afterwards he lost consciousness and an emergency team was called, and he was ‘intubated and ventilated’. By that time, he had suffered ‘severe and irreversible brain damage’.
While there was no culture to analyse, it was common ground between the parties that the plaintiff had bacterial meningitis. It was also accepted by all of the parties that the plaintiff would never work again and would require care for the rest of his life.
The plaintiff brought an action against his treating neurosurgeon, Mr Popovic, and against the RPH. The plaintiff alleged that Mr Popovic, who had performed several surgeries on him to remove a brain tumour, ought to have advised him during a telephone conversation on 5 October 2007 of the probable symptoms of bacterial meningitis and to attend hospital immediately if any arose. The plaintiff alleged that had he been so warned, he would have arrived at the hospital approximately 7 hours earlier and would have been treated earlier.
The plaintiff also alleged that the RPH staff ought to have diagnosed and commenced treatment in a timely manner once he presented at the hospital on the morning of 6 October 2007. The plaintiff alleged that but for this failure he would not have suffered severe brain damage. Both defendants admitted that they owed the plaintiff a ‘duty to exercise reasonable care, skill and diligence in the provision of medical care and treatment’.
The Court found that ‘there was no indolent bacterial meningitis infecting the plaintiff prior to 5 October. It is most improbable that there was any presence of meningitis bacteria in the plaintiff’s CSF prior to late in the evening of 5 October, heralded by the headache in the early morning hours’.
Relevantly, the Court accepted evidence from Professor Braslins that ‘the time it takes for the number of bacteria to reproduce and increase in number by 100%, is 20 minutes. Every hour it is left untreated the total amount of bacteria present would increase eight fold’. Further, the Court accepted the plaintiff’s expert evidence of Professor John Raftos, a senior specialist in emergency medicine in NSW, on the nature and consequences of bacterial meningitis. Professor Raftos described the presentation as typically being ‘progressively worsening headache, fever, neck stiffness, and photophobia…. Delay in diagnosing and treating acute bacterial meningitis is associated with worse outcomes including death and permanent neurological disability’. The Court also accepted evidence of Dr Eisen and Professor Braslins that according to the Therapeutic Guidelines published in 2006, the appropriate response to a case of suspected bacterial meningitis was a lumbar puncture to be performed as soon as possible and if the patient has not received a lumbar puncture within 20 minutes, antibiotics should be commenced.
Plaintiff’s case against Mr Popovic
The central allegation by the plaintiff against Mr Popovic was that Mr Popovic breached the duty of care under section 5B of the Act by:
- failing, following the complications of the second operation and the possible presence of CSF, to ‘appropriately consider the increased likelihood of infection’ and to ‘undertake or arrange further investigations to see if there was a CSF leak’; and
- failing to advise the plaintiff that he should ‘immediately attend the ED of RPH if he developed other symptoms, including a more severe headache, stiff neck, high temperature or photophobia’; and
- failing ‘to contact RPH to advise them of them of the plaintiff’s imminent arrival and his circumstances, Mr Popovic failed to take reasonable steps to ensure that the plaintiff received appropriate treatment at RPH.
The plaintiff alleged that this failure led to the delayed attendance at the hospital and delayed treatment and caused the damage suffered.
Did Mr Popovic breach his duty of care?
The Court rejected the first allegation, applying the peer professional opinion defence under s 5PB of the Act. This was on the basis that only one expert, Dr Atkinson, a specialist neurosurgeon, gave evidence that he would have advised the plaintiff to immediately attend the emergency department after being told that he had sneezed the fatty plug out. Furthermore, the Court accepted expert evidence that a ‘sudden or relatively high volume CSF leak would normally be apparent to the patient and any treating doctor’ and there would have been symptoms such as postural headaches if there was an intermittent leak. The Court was satisfied there was no evidence of this between 14 September and 5 October. The Court also rejected the third allegation, questioning whether Mr Popovic would have had any authority to direct treatment once he was at the hospital and noting that he sent the plaintiff to a modern and well-equipped hospital and he contacted the neurosurgical registrar prior to his arrival.
The Court also rejected the second allegation. The major issue in establishing this allegation was that the only two people with direct knowledge of the relevant telephone conversation were not able to give evidence. Mr Popovic had died in 2011 and the plaintiff was not able to give evidence because of his brain injury. Necessarily, the plaintiff’s argument relied on circumstantial evidence from which the Court was asked to make inferences that Mr Popovic failed to provide the required warning or advice. These circumstances were that following his discussion with Mr Popovic on 5 October, the plaintiff did not tell his wife that he had been advised to watch for any particular symptoms and go to the ED if they arose, that despite having a severe headache throughout the night, the plaintiff did not go the hospital but instead took panadeine forte and that when Mrs Panagoulias spoke to Mr Popovic the following morning, Mr Popovic did not refer to any advice that he had given to the plaintiff to go straight to hospital if he developed certain symptoms. The Court excluded the evidence, noting that this type of evidence fell into the category of ‘implied assertions’ and that the inference in question was of a subjective assertion ‘about the plaintiff’s knowledge of his prior conversation with Mr Popovic’.
Furthermore, the Court considered that even had the evidence been admissible, it would not have led it to draw the inferences asserted. This was based on several factors. Firstly, Mrs Panagoulias’ evidence of the telephone call with Mr Popovic on 5 October was unlikely to have been the full contents of the conversation that telephone records showed lasted approximately 2 and a half minutes. Secondly, the plaintiff’s history of severe headaches, coupled with the evidence of Mrs Panagoulias that the plaintiff seemed ‘fine’ the evening before and the varying descriptions of the headache in the hospital notes led the trial judge to conclude that the ‘true severity of the headache’ became apparent in the morning at which stage the plaintiff recognised that he was ‘experiencing something out the ordinary’ and asked his wife to call Mr Popovic.
Breach of Duty: Royal Perth Hospital
The plaintiff’s central allegation against RPH was that RPH’s staff ‘failed to act in a timely way to treat the plaintiff’s bacterial meningitis’ and specifically by the delayed undertaking of tests, commencing antibiotics when other tests were delayed on the suspicion of bacterial meningitis.
Section 5PB: Peer Professional Practice
The Court considered the application of s 5PB of the Act, which prevents a finding that an act or omission of a health professional is negligent if ‘at the time of the act or omission, [it] is widely accepted by the health professional’s peers as competent professional practice’. Relevantly, s 5PB provides that a practice does not have to be universally accepted and can co-exist with other different practices that are still accepted as competent professional practice amongst the health professional’s peers.
The Court acknowledged that there was ‘unresolved appellate authority’ in Western Australia regarding the question of whether s 5PB is a defence against a finding of a breach of duty or a pre-condition to be satisfied in establishing that a breach occurred. The former would require the defendant to prove that it had acted in accordance with peer professional practice, while the latter would shift the onus onto the plaintiff to prove that the defendant did not act in accordance with peer professional practice. The Court proceeded on the basis that the plaintiff needed to prove that the defendant did not act in accordance ‘with what was widely accepted as competent professional practice’.
Was the delay consistent with peer professional practice?
On the basis of s 5PB of the Act, RPH argued that ‘even acting with reasonable competence, the staff of RPH would not have begun to administer intravenous antibiotics to the plaintiff before 2:30pm on 6 October’. They relied upon Professor John Raftos’ expert evidence that a 2 hour period to do a lumbar puncture and a CT scan was reasonable, and that given Dr Wilson did not see the plaintiff until 12pm, acting reasonably they would not have begun antibiotic treatment until approximately 2:30pm.
Specifically, RPH sought to rely on the differences in expert opinion at trial regarding when to begin treatment for bacterial meningitis. This was based on the evidence given by Professor John Raftos on cross-examination in which he explained that there were several schools of thought: the first requires ‘hard evidence’ of turbidity or bacteria in the CSF after a diagnostic procedure such as a lumbar puncture is carried out, and the second, generally where there is a reasonable suspicion of bacterial meningitis, would administer antibiotics prior to doing a lumbar puncture. While Professor Raftos gave evidence that he would generally take the cautious approach of administering antibiotics on suspicion, he also accepted that the other school of thought was ‘consistent with competent professional practice’.
However, the Court took the view that no school justified delayed diagnosis and treatment without particular reasons for the delays. The Court placed significant weight on the evidence of Professor Raftos that the plaintiff’s rising temperature, other symptoms and presentation were strong evidence of meningitis and that in acting in accordance with the Therapeutic Guidelines, it would have been prudent to give a lumbar puncture as soon as possible. Accordingly, the Court was satisfied that the hospital staff had not acted in accordance with competent peer professional practice, and held that the hospital staff failed to discharge their duty by failing to carry out a lumbar puncture at around 11:38am when the plaintiff’s temperature rose to 38.3 degrees Celsius or by commencing antibiotics prior to doing so. Accordingly, by failing to ‘commence antibiotics and corticosteroids by no later than 12:30pm’ they breached their duty.
The Court then considered the principles of causation under s 5C of the Act. As the case related to omissions, the Court considered the probable course of events had the omission not occurred, in accordance with the authority in Strong v Woolworths Ltd  HCA 5; 246 CLR 182.
Did Mr Popovic’s alleged failure to warn the plaintiff contribute to the plaintiff’s injuries?
The Court, having found that Mr Popovic did not breach his duty of care to the plaintiff, held that the plaintiff’s case against Mr Popovic also failed to satisfy the causation limb under s 5C. Broadly, it did not accept that in the probable course of events, the plaintiff would have presented at hospital any earlier than he did or that the symptoms would have been clear enough to raise concern in the hospital staff had he presented earlier.
Did the delay in treatment cause the plaintiff to suffered long-term harm?
The Court was satisfied that applying s 5C(1), ‘but for’ the failure to provide antibiotics prior to 3:00pm, in the probable course of events, the plaintiff would not have suffered severe long-term damage. This finding was based on an acceptance of the expert evidence provided by Dr Eisen and Professor Braslins respectively, which was based upon a review of medical literature and clinical experience. Dr Eisen gave evidence that the probability of long-term damage being avoided was approximately 60% if antibiotics had been provided by approximately 1pm. The medical literature relied upon by each expert considered the correlation between delayed treatment and adverse outcomes in bacterial meningitis cases in hospitals.
The Court attached greater weight to the evidence of Professor Braslins that the risk of harm was less than 50% if treatment had been commenced at 2:30pm. Professor Braslins’ literature review was more extensive and also considered a study, referred to as the Aronin Study. RPH sought to rely on this study to establish that the stage of the plaintiff’s disease development when he arrived at the hospital was low and that, therefore, delayed treatment was not likely to result in an adverse outcome. Importantly, in cross-examination, Professor Braslins clarified his evidence by opining that while the plaintiff was in the low risk category of patients at the time that he presented at RPH according to the criteria in that study, the study still established correlation between long delay in treatment and adverse outcomes. Relevantly, the plaintiff’s treatment was delayed by an amount of time that placed him in the high risk category of patients in that study.
RPH unsuccessfully challenged both experts as ‘unsatisfactory’ and asserted the limitations of the medical literature that they relied upon, including that the studies related to mortality rather than morbidity, were all ‘retrospective’; did not demonstrate a precise time at which a person would suffer an adverse outcome if not treated; and focused on the duration of symptoms of meningitis rather than the duration of meningitis itself. However, the Court noted that despite this, RPH did not rely on any expert witnesses and did not question the expertise of the witnesses. The Court rejected RPH’s argument that ‘the current state of scientific knowledge does not allow any relevant conclusions to be drawn as to the relationship between belated administration of antibiotics and the adverse outcome suffered by the plaintiff because of his bacterial meningitis’.
The Court also allowed the plaintiff to invoke s 5C(2) of the Act. The Court was satisfied that the factors plead were sufficient to prove factual causation under that provision. In summary, these were that the staff at RPH ‘reasonably suspected’ bacterial meningitis, which they knew was life-threatening; studies showed delayed treatment was associated with adverse outcomes; and the Therapeutic Guidelines required a lumbar puncture and prompt treatment to be carried out as soon as possible on suspicion of bacterial meningitis. Furthermore, there was no defensible reason for the delays in diagnosis and treatment, the plaintiff did not contribute to the harm suffered, and the breach of duty was ‘better characterised as gross’.
The Court awarded damages in excess of $8m to the plaintiff. For loss of income and loss of future income the plaintiff was awarded a daily gross rate of $1,150 from September 2007 until the date of the trial and $1,200 per day until the age of 67 for 225 days per year. This was reduced by 10% once the Court took into account contingencies. The plaintiff was awarded approximately $4.4m for future care and $425,000 for pain, suffering and loss of amenities of life.
This case highlights the importance of timely diagnosis and commencement of antibiotic treatment for suspected bacterial meningitis cases. The weight of expert evidence demonstrated that in situations where there are practical difficulties in undertaking diagnostic tests, the lengthier the delay, the more significant the risk of an adverse outcome for the patient.
Furthermore, the case also provides guidance on the application of s 5PB as a pre-condition to the plaintiff establishing a breach of duty by a health professional rather than as a defence against a finding of a breach of duty. Specifically, that plaintiff must prove that the health professional did not act in accordance with competent peer professional opinion. In particular, it demonstrates that where delays are not justified by evidence, regardless of whether there is a school of professional practice that justifies waiting for the results of diagnostic tests for confirmation of bacterial meningitis, s 5PB will not preclude a finding of breach of duty.