Baxter & Ors v McCann

A doctor is not negligent merely because a tumour is present but is not detected during an examination. The question is whether the examination was performed to the standard of a reasonably competent practitioner, assessed in the clinical context known at the time. Relevant considerations include the patient’s symptoms, the index of suspicion, the practitioner’s experience, and the tumour’s size, location and other characteristics. A properly performed bimanual examination may reasonably fail to detect an ovarian mass, particularly where the tumour is behind the uterus and the clinical suspicion is low. The claimant must prove breach of duty. Where breach is not established, causation need not be determined; tentative observations on a difficult and speculative causation issue do not form part of the decision.

The claimants, comprising the deceased patient’s children and estate, alleged that Dr Kirsty McCann negligently failed to conduct or competently perform a physical examination at a consultation on 21 March 2001. They contended that a bimanual examination would have detected an ovarian clear cell carcinoma when it was at an earlier stage and that earlier treatment would probably have improved the patient’s survival prospects.

The defendant maintained that she had performed a full pelvic examination, including abdominal, speculum and bimanual examinations, but had reasonably failed to detect the tumour. The principal issues were whether there had been a breach of duty and, if so, whether delayed diagnosis had caused a materially different outcome.

1. Claim dismissed. The court found that Dr McCann had performed a full pelvic examination on 21 March 2001, including a bimanual examination.
2. The examination was reasonably competent. The clinical records, Dr McCann’s established examination routine, her experience, and the surrounding evidence supported her account. The absence of a separately recorded abdominal examination did not establish that no examination had occurred, because the notes were clinical records rather than formal documents and did not routinely record every negative finding.
3. The tumour could reasonably have been missed. Its size in March 2001 was uncertain but was taken, for evidential purposes, to be 5 cm. It was situated behind the uterus. The literature showed that bimanual examinations could miss ovarian masses, and the experts identified size, location, mobility, firmness, patient build and clinical suspicion as relevant factors.
4. The court placed particular weight on the very low index of suspicion. The patient was young, ovarian clear cell cancer was exceptionally rare in her age group, and she had not reported abdominal pain, abdominal extension or urinary frequency at the relevant consultation. The later failure of a specialist examination in September 2001 to detect the mass provided further support for the conclusion that it had not been unreasonably missed in March.
5. It was unnecessary to determine causation because breach had not been proved. The court nevertheless observed that the evidence concerning whether the tumour had already reached stage III by March 2001 was very thin and speculative. The conflicting expert opinions did not justify a finding on the balance of probabilities.