Jacqueline Lee Freestone V Murrumbidgee Local Health District [2016] NSWDC 53 concerned an abdominal CT scan which made no reference to a kidney lesion. It was not until some 4 years later that the kidney issue was diagnosed and treated.

The defendant did not call the reporting radiologist so the court drew an inference that this evidence would not have assisted the defendant: Jones v Dunkel [1959] HCA 8; 101 CLR 298 (at [27]).

There was a debate between the experts as to the reporting of incidental findings, at [44] – [52]:

  1. Dr Lees said the finding should have been reported because it was rare, untested, and came with a differential diagnosis of a cyst or tumour, one of which could be fatal. It was therefore important to report it, investigate and obtain a final diagnosis.
  2. Dr Jones disagreed. He said he would not report the lesion in the circumstances of acute abdominal symptoms, even in a child. He said the relevant findings in a radiologist’s report were those that related to the clinical presentation.
  3. Dr Jones accepted that tumours were frequently detected incidentally but his concern was that many incidental findings were then investigated to the disadvantage of the patient, at times with fatal consequences. He said it was a matter for the radiologist to determine whether to report an incidental non-significant finding. It was not something that a radiologist was obliged to report.
  4. Dr Lees countered by pointing out that measuring the Hounsfield density of the lesion required no further involvement on the part of the patient and no invasive treatment. Dr Lees and Dr Jones agreed that a non-invasive ultrasound would provide immediate information concerning the nature of the lesion. They agreed that ultrasound examination would have been available at Wagga Wagga Base Hospital in January 2004.
  5. Dr Jones ultimately appeared to accept that the finding of a renal cyst was not common in a patient of the plaintiff’s age. He said, however, that they were common in a radiologist’s daily workload and, although the radiologist would know the age of the patient, a finding of this type was assessed in the same way regardless of age. Taken to an extreme example of a 6 year old, Dr Jones agreed that he would probably report the finding of a cyst but some radiologists would not.
  6. He said that, because this happened, he regarded it as accepted practice. Dr Jones said radiologists were not infallible and, in a busy practice, the failure to report the lesion was not a departure from accepted standards. Dr Jones maintained that it was a matter for the radiologist to determine and that he or she was not obliged to report an incidental, non-significant finding.
  7. In a somewhat contradictory answer to the question of whether he would report a cyst to allow for further investigation, Dr Jones said:

My personal approach is that if I make a – if I carefully elicit the findings of a renal lesion and come to the conclusion that it’s a cyst, I do not ever recommend follow up or any further investigation, so that is predicated on making a careful assessment in the first place and if I get that wrong well clearly that may have consequences, but the starting point is to elicit the features that I’ve described and if at the end of that process I come to the conclusion I am looking at a simple cyst, then I may or may not report it.

I personally would report it but lots of people don’t and if it’s a situation of an acute abdomen where I’ve regarded it as an irrelevant finding, I may not report it. It depends on the circumstances. (Transcript 172.6)

  1. Questioned further to clarify whether he personally reported lesions that he determined to be cysts, Dr Jones said that his general practice was to do so but that he would not have reported the lesion that appeared on the 2004 scans because the concern on that occasion was the cause of the acute abdomen and:

Well, whether I do it or not is only part of the answer. What most radiologists – many radiologists would not, do not. (Transcript 172.37)

  1. Dr Lees said the lesion was obvious, it suggested a differential diagnosis involving a cyst, that was rare, or a tumour that was dangerous. He maintained that, even if the radiologist thought it was a cyst, it should have been further investigated or reported to allow for further investigation.

The majority of medical opinion supported Dr Lees’ opinion that the lesion should have been reported: [62].

The court did not accept that section 5O could be applied: [74].

The claimant succeeded on some but not all causation issues, the claim having been made for a range of physical and psychiatric outcomes.

 

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