When Is A Psychiatric Injury Foreseeable?

The Facts

In April 1996, Angela Panagiotopoulos saw Dr Rajendram, complaining of left-sided chest pain and two menstrual cycles in a month. After reviewing blood test results, the doctor advised the patient to undergo further blood tests. In June 1996, she complained to the doctor of vaginal discomfort and pain on sitting. As pain precluded a rectal examination, he referred her to a general surgeon. However, he neither informed the surgeon of the earlier blood test results, nor ordered further blood tests as previously foreshadowed. In October 1996, the patient was diagnosed with primary colorectal cancer, from which she died in March 1999.

The patient's husband commenced proceedings in the District Court of New South Wales, alleging the doctor's negligence resulted in psychiatric injury to him, arising out of his wife's pain and suffering.

Negligence was found proved by the trial judge. Even so, it was found there was no realistic prospect of cure if the cancer had been diagnosed shortly after Dr Rajendram's initial consultation. Even though there was a finding of negligence, unless Mr Panagiotopoulos could also establish that his wife's cancer would have been diagnosed but for this negligence, his case must fail. The court was unable to find this link. In addition, the court was not satisfied the husband had suffered a psychiatric injury. Mr Panagiotopoulos was therefore unable to establish two of the three elements necessary to succeed. The husband appealed to the New South Wales Court of Appeal

Decision

Basten JA (with whom both Tobias and McColl JJA agreed) dismissed the husband's appeal. His Honour stated that whether a psychiatric injury is foreseeable to a defendant, is based upon a person of normal, reasonable or ordinary fortitude, unless there is knowledge of particular susceptibility to injury. Where the defendant is a medical practitioner, expert evidence may be of assistance, but not decisive, in determining what injury was foreseeable.

His Honour thought it significant that the doctor's negligence led to only a three month delay in diagnosis and that, at most, the patient lost the chance of a longer life. However, there was no evidence to establish how long she would have lived had the cancer been diagnosed earlier. His Honour also agreed with the trial judge that there was insufficient evidence to demonstrate that alternative treatment by the doctor would have led to an earlier diagnosis.

His Honour noted that the husband's psychiatric injury had to be causally linked to the doctor's negligence. A mere belief on the part of the husband that the doctor was in some way responsible for his wife's death or hastened death, was irrelevant, unless it could be demonstrated that his wife's death was actually hastened by the doctor's negligence. Any psychiatric injury for which the doctor would be responsible, must flow primarily from pain and suffering caused by the failure to diagnose the cancer at an earlier time.

Mr Panagiotopoulos' claim was also dismissed, because His Honour found he could not establish the threshold that he had suffered a diagnosable psychiatric condition. The Court of Appeal endorsed the trial judge's decision to reject the opinion of the treating psychiatrist (that Mr Panagiotopoulos did suffer from a diagnosable psychiatric condition), as this opinion was based on false and misleading information.

Implications

Although this case did not proceed under the Civil Liability Act 2002 (NSW), the regime for determining recovery for psychiatric injury under that Act is similar.

The case reinforces the need to consider carefully, the necessary elements for maintaining and defending a claim, based upon psychiatric illness arising out of injury caused to another, by reason of a defendant's negligence. Particular attention must be given to whether the psychiatric injury was reasonably foreseeable and the relationship between negligence and psychiatric injury. It may be considerably more difficult to link negligence with psychiatric injury where there are other potential causes of psychiatric distress, for example a death, which do not arise out of negligence. Even though the loss of a loved one may cause grief, and a doctor's management could perhaps have been improved, this case highlights that the elements of a claim for psychiatric injury require a much more rigorous analysis.

Kerrie Chambers
Partner - Health
Ebsworth & Ebsworth Lawyers