Coote v Kelly; Northam v Kelly  NSWCA 192
In this case the New South Wales Court of Appeal dismissed an appeal against the decision made in Coote v Kelly; Northam v Kelly  NSWSC 1447. In that case Mrs Coote (now Mrs Northam) brought an action against Dr Kelly for negligence in failing to diagnose a malignant melanoma on the foot of Mr Coote, which metastasised and resulted in his death. The court found that Dr Kelly had not breached his duty of care to Mr Coote by failing to properly examine and diagnose the lesion.
On 3 September 2009, Mr Coote sought treatment from his local general practitioner, Dr Kelly, complaining of a painful lesion on the sole of his left foot. Dr Kelly diagnosed the lesion as a plantar wart and administered cryotherapy. The lesion proceeded to be treated as a plantar wart by four different medical practitioners for some 18 months until a March 2011 biopsy revealed that it was a malignant melanoma.
The lesion was excised on 29 March 2011, however by that time the melanoma had metastasised and despite further treatment Mr Coote died on 23 May 2011.
On 25 October 2011, Mr Coote commenced proceedings against Dr Kelly for negligence for the failure to diagnose the melanoma before it metastasised. At first instance the trial judge, Schmidt J, held that Dr Kelly had indeed been negligent, however the trial judge was not satisfied that Dr Kelly’s misdiagnosis was shown to have caused metastasis of the melanoma.
Mrs Coote, as executor of Mr Coote’s estate, appealed the decision to the New South Wales Court of Appeal. The Court of Appeal upheld the challenge to the trial judge’s finding on causation and a new trial was ordered.
On 23 May 2016, a second trial commenced in the New South Wales Supreme Court before Davies J. Davies J did not accept Mrs Coote’s evidence that the lesion had a black spot at the time Mr Coote first visited Dr Kelly, and therefore found that Dr Kelly had not breached his duty of care by failing to diagnose the lesion as a melanoma. Additionally, Davies J concluded that had he found negligence on the part of Dr Kelly, causation was nevertheless not established as Mrs Coote failed to prove that the melanoma had not metastasised at the time of Mr Coote’s first consultation with Dr Kelly.
Mrs Coote subsequently appealed the decision to the New South Wales Court of Appeal.
The appeal concerned two main issues:
- with respect to the breach of duty, did Davies J err in failing to accept the evidence of Mrs Coote and her late husband that the lesion had a black spot, or dark pigmentation, at the time Mr Coote first visited Dr Kelly and thereafter; and
- with respect to causation, did Davies J err in failing to find that the melanoma had probably not metastasised during the period Mr Coote was treated by Dr Kelly.
Breach of Duty
The Court of Appeal determined that the essential finding of fact on which the claim for breach of duty turned was the appearance of the lesion whilst Dr Kelly was treating Mr Coote.
Mrs Coote submitted that prior to Mr Coote’s first consultation with Dr Kelly, she identified a black spot on the lesion which she attempted to remove with her fingernail. Mrs Coote claimed that the dark pigmented appearance of the lesion never changed, although it grew in size over time. The description of the lesion’s dark pigmentation was corroborated by Mr Coote’s evidence at the first trial.
Dr Kelly disputed this description of the lesion, submitting that an unusual or dark pigmentation of a lesion on the foot would present a ‘red flag’ indicating a possible malignancy which he would have recorded immediately in his clinical notes. However, Dr Kelly made no mention in his contemporaneous notes regarding the pigmentation of the lesion, which meant that his testimony regarding the appearance of the lesion was supported only by scant notes and his own recollection. The other three doctors who administered treatment to the lesion concurred with Dr Kelly, but had similarly inadequate contemporaneous notes regarding the pigmentation of the lesion.
Ultimately, to satisfy the Court of Appeal that Dr Kelly had breached his duty of care, Mrs Coote needed to prove that each doctor who treated the lesion as a plantar wart independently overlooked its pigmentation and failed to consider a melanoma as an alternative diagnosis when administering treatment. The Court of Appeal found that on the balance of probabilities Mrs Coote’s description of the lesion could not be reconciled with the consensus observation of the four doctors who treated the lesion as a plantar wart in circumstances where it appeared to present no irregular pigmentation or atypical features. The Court was satisfied what was more likely was that Mrs Coote’s initial impression of the lesion was overridden by subsequent events and repeated recall, and that her belief in the pigmentation of the lesion was the result of human fallibility.
As such, it was determined that Davies J did not err in finding that on the evidence Dr Kelly did not breach his duty of care by treating the lesion as a plantar wart, as it could not be proven that the lesion presented any physical characteristics indicating a need for a differential diagnosis.
Despite finding that no breach occurred, the Court of Appeal still gave consideration as to whether a proper diagnosis would have prevented the melanoma from metastasising. To succeed on causation it needed to be shown that the lesion was a melanoma at the time of Mr Coote’s last consultation with Dr Kelly, and that at that time the melanoma had not yet metastasised.
The Court of Appeal noted that it could be inferred from the expert evidence that it was probable that the melanoma had not metastasised as at August 2009 – May 2010, however the consensus of the experts was that on the evidence the question could not be answered reliably. In such circumstances, the Court of Appeal held that making a finding as to when the melanoma probably metastasised was so artificial that the better course was not to address the question of causation.
As such, it was determined that Davies J did not err in concluding that causation had not been made out by the appellant.
On the basis of the above considerations the Court dismissed the appeal.
While in this case the doctor was ultimately not found liable for breach of duty, this case demonstrates the importance of ensuring that medical practitioners take detailed contemporaneous notes, even when performing procedures or examinations that they may consider to be routine. Contemporaneous clinical notes are an invaluable record, particularly where those records are in conflict with evidence given in relation to an alleged misdiagnosis.