Examples of Medical Negligence: Failure to follow up Flashcards
What are the facts of Kite v Malycha?
Mrs Kite had a lump in her breast.
Specialist decided to do an FMA (stick needle into breast and take liquid for analysis).
When analysis was complete, due to mix up in reception, D never actually saw the results, so did not notify Mrs Kite, NOR did Mrs Kite turn up at any point to get results.
Fast forward years later, Mrs Kite has advanced breast cancer with limited life expectancy.
She sues for failure to follow up
What are the main cases?
- Kite v Malycha
2. Tai’s case
What was held in Kite v Malycha?
Held: Doctor was negligent for failing to follow up. He had an inappropriate system of work in sharing his receptionist with another doctor. Had no bring-up system.
He should have followed up with Mrs Kite didn’t turn up as scheduled. Irrespective of any initiative taken by patient, he owed a duty to find out results of the pathological examination.
The DOC owed was that of an ordinarily skilled surgeon specialising in oncology, more particularly breast cancer, who also conducted a substantial practice as a clinician in the same area.
What was held in Kite v Malycha in regards to contributory negligence on the part of Mrs Kite?
“I do not think courts should be quick to find contributory negligence on the part of patients who have put themselves in the hands of competent medical practitioners for advice and treatment.. Furthermore Mrs Kite was ENTITLED to assume that if cytology report was adverse, she would be told about it.
When no communication to that effect was made to her, she not unnaturally assumed that there was no adverse outcome”.
Held: no contributory negligence
What jurisdiction is Tai’s Case?
NSW, so not completely binding on Qld.
What are the fats of Tai’s Case?
D was a gynaecologist.
D was frequently consulted by P who was concerned because a number of P’s family members had died of cancer. She needed to have a diagnostic procedure performed.
Doctor wrote up a referral and gave it to P. P was supposed to walk it over across the road to diagnostics where the nurse would book in P and notify P and D when the appointment was.
P didn’t hear further and assumed that because it was a public hospital, there was a long waiting period and hence did not contact the doctor.
D also continued without checking whether patient was on the list.
Up until day of trial, no record of the referral being processed, on the day of trial they found the referral.
She sued saying she wasn’t diagnosed, and if she was in sufficient time, she wouldn’t have suffered the illness.
What was held in Tai’s case?
Held: Gynaecologist failed to follow up. Similar to Kite’s Case, the doctor knew or ought to have known that it’s a serious matter and has responsibility to make sure patient is seen in a prompt manner.
The doctor had (rightly) considered that in order to diagnose, he should carry out a diluation and curettage and put in train the steps for that to be done. By reason of inadequacy in his own system, the procedure which he CONSIDERED NECESSARY in the P’s interest was not carried out and hence she was not diagnosed.
