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Treating docotors providing expert testimony

Newsletter 21 August 2012

Jordon v Lee [2012] WADC 74


The plaintiff, Daniel Jordon, was 11 years old in 1996 when he was diagnosed with a brain (thalamic) tumour with leptomeningeal metastases.

He was referred to Mr Michael Lee, neurosurgeon, who advised that at that time the risks of surgery to remove the tumour outweighed any benefits. Mr Lee referred the plaintiff to Dr David Baker, oncologist for adjuvant therapy which was provided between 1996 to 2000 at Princess Margaret Hospital in Perth.

In 1998 the plaintiff’s parents requested a second neurosurgical opinion from Mr Wayne Thomas. Mr Thomas essentially gave the same advice as Mr Lee namely that the prospect of a total or subtotal resection of the tumour carried with it the substantial risk of the plaintiff’s condition deteriorating such that his best interests would not be served by resection.

In 2000 (the year he turned 15) the plaintiff’s condition deteriorated. Consequently, in May of 2000 Mr Lee attempted a decompression of the tumour which, for reasons unrelated to this surgery, was not completed.

In June 2000 the plaintiff was referred to Dr Charlie Teo, a neurosurgeon based in Sydney. He resected 98% of the tumour with a good result.

Dr Teo reported to the plaintiff’s solicitors that the resection should have been performed earlier including 1996, 1998, 1999 and 2000.

The plaintiff’s parents alleged that Mr Lee and Dr Baker negligently failed to advise them that resection of the tumour was the first choice for curative treatment of the tumour and there were other neurosurgeons who, acting reasonably, would have performed the resection during 1996, 1998, 1999 and 2000. It was claimed that if the plaintiff had undergone surgery earlier he would have avoided years of unnecessary surgery (including a shunt procedure and cyst aspiration) and adjuvant therapy as well as residual disabilities.
Mr Lee and Dr Baker argued that resection was not appropriate in 1996, and at that time the tumour was best treated in other ways, but by 2000 it was appropriate to decompress the tumour. This argument was supported by a number of experts including Mr Thomas.

Proceedings were filed in the Perth registry of the District Court of WA in 2006. Mr Lee retired in 2007 and Dr Baker retired in 2008.

The trial was conducted over 4 days in November and December 2011 and the decision of Judge Goetze of the District Court of Western Australia was handed down on 25 May 2012.

Expert Evidence

Dr Teo was the only expert to provide testimony on behalf of the plaintiff.

The defence called 6 expert witnesses, namely 4 neurosurgeons, 1 oncologist and 1 neurologist. The neurosurgeons were Mr Thomas (from whom a second opinion was sought in 1998), Dr Myron Rogers who practiced in Victoria, Professor Bryant Stokes who is based in Perth and Professor James Drake from Toronto Canada.

Dr Teo prepared 2 reports at the behest of the plaintiff. He expressed the opinion that the plaintiff’s tumour should have been resected from 1996 onwards and that a large body of surgeons would have recommended that procedure. However, during his oral evidence he conceded the reasonableness of not resecting thalamic tumours and further, volunteered that he did not disagree with conservative neurosurgeons not operating.

Dr Teo’s evidence was ultimately not accepted on the basis that he had not explained the underlying basis, from his field of specialized knowledge, which gave rise to his opinion that the plaintiff’s tumour should have been resected at all times from 1996 onwards. Further a finding was made that the literature did not support Dr Teo’s claim that he and other (unidentified) surgeons in the USA were operating on thalamic tumours of the type suffered by the plaintiff between 1996 and 2000.
Judge Goetze undertook some discussion of the issue that Dr Teo was both a witness of fact (as a treating doctor) and an expert witness at paragraphs 779 to 786 of the 176 page judgment. No criticism was made of this, just as no criticism was made of Mr Thomas giving expert evidence; albeit on behalf of a treating doctor as opposed to his patient.

However, Judge Goetze did note that the giving of evidence as a treating surgeon is a different process to that of a highly skilled medical expert giving expert evidence requiring independence and objectivity with a primary obligation to the court when giving such evidence.

At paragraph 786 of his judgment Judge Goetze stated:

“Dr Teo is clearly passionate about the resection of brain tumours as providing the best chance of a cure. It seems however, that, on this occasion, Dr Teo has allowed his passion and his subjective involvement in Daniel’s treatment to interfere with his objectivity and impartiality as an expert witness when writing his reports in that they are not balanced reports given his concessions in oral evidence. Further, his passion for the cause of resection and his involvement with Daniel has caused him to exaggerate Daniel’s neurological condition in 1996 with gross intracranial pressure, dying and being in extremis, so as to justify his call for resection from then onwards.”

The evidence of the defense experts was accepted and the claim against both Mr Lee and Dr Baker failed.

Treating doctors providing expert testimony

There is no express prohibition against treating doctors providing expert evidence. However, witnesses giving expert testimony are duty bound to assist the court, and that duty overrides any obligation the witness may have to a party.

Clearly the giving of expert evidence by a treating doctor incurs the risk of a challenge to that expert evidence on the basis that the objectivity and impartiality of the witness is tainted.

Consequently, a treating doctor who is approached to give expert testimony should give thoughtful consideration to such a request, and only agree to provide that evidence if they believe that it will stand up to forensic scrutiny.

Katharine Philp, Partner

Newsletter 21 August 2012
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