Kennedy v Malhotra [2024] NSWSC: GP Cervical Screening Negligence

Kennedy v Malhotra [2024] NSWSC 576

In the matter of Kennedy v Malhotra [2024] NSWSC 576, the plaintiff, Ms Athena Kennedy, commenced medical negligence court proceedings against the defendant, Dr Deepika Malhotra, seeking damages from the defendant, arising out of alleged failures by the defendant to advise or inform her that she should be undertaking preventative screening in the nature of pap smears or cervical screening tests (“CST”) during the period 2014 to 2019.

In this matter, the plaintiff alleged that her general practitioner (the defendant) failed to advise or inform her of the need for cervical screening, and that as a result of a delay in such screening she developed cervical cancer. It is notable that in this case the plaintiff says not just that the defendant failed to remind, inform or advise her of the need for such preventative screening, but that, according to the plaintiff, when the plaintiff raised the issue with the defendant, (which she says she did on a regular basis) she was informed that it was not necessary for her to undergo such preventative screening because she was not sexually active (that is currently at the time when the issue was raised).

At the time of the filing of the statement of claim and the preparation of the plaintiff’s evidentiary statement, the notes, and records of the consultations between the defendant and the plaintiff were not available. The medical practice where the defendant had consulted with the plaintiff, Forum Medical Centre, had shutdown. Only through investigations of the solicitor for the defendant and a subpoena issued to an IT company which had previously been engaged by the medical practice did the medical records become available.

The defendant’s response to the plaintiff’s allegations was to reject them. The defendant says that she did not give such medical advice; she never has and never would. The defendant points to her notes and records as being inconsistent with and contrary to that essential allegation raised by the plaintiff. Her notes record her telling the plaintiff about the need for cervical screening and the plaintiff responding (at times) to the effect that she’d undertaken such screening.

The judge did not accept that the defendant gave the medical advice for the following reasons [at 171]:

(1) The defendant is a very experienced general practitioner with expertise in women’s health. It is improbable and implausible that she would have given such advice because it is so obviously contrary to the Commonwealth government protocol and recommendations, contrary to the very purpose of cervical screening and inconsistent with what must be well-known as to when and how cervical cancer develops.

(2) Such statements are inconsistent with and quite contrary to the defendant’s medical notes. The plaintiff does not say that the notes are concocted or generally inaccurate. It was not put to the defendant that she attended on other occasions (not mentioned in the notes). It was not put to the defendant that the plaintiff used to come in two or three times a year and asked whether she needed a Pap smear.

(3) Because the defendant’s note of 28 April 2014 records only “Pap smear discussed”, it is possible that the defendant gave the advice the plaintiff suggested but such advice would be inconsistent with the defendant’s general practice in advising on the need for Pap smears and inconsistent with what the defendant described as her knowledge as to the need for Pap smears.

(4) Further, and of most importance, is the entry for 1 April 2015 of “Pap UTD”. It was not suggested that the defendant simply made up that note, or mis recorded what she was told. That note could only be a reference to the defendant being told by the plaintiff that her Pap smears were up to date, meaning she had had one at some stage in the past. As I accept that the defendant knew as of April 2014 that the plaintiff had not a Pap smear, hence leading to the discussion about the need for a Pap smear, it must be that a statement by the plaintiff a year later that she was up-to-date would mean that she had had a Pap smear. This record cannot sit with any part of the plaintiff’s primary case.

(5) The plaintiff’s evidence that she regularly asked the defendant about the need for a Pap smear every year and was always told that she did not need to have one is inconsistent with the record of the consultation on 1 April 2015 that records the plaintiff saying she had had one rather than asking the doctor whether she needed to have one.

(6) Similarly, the plaintiff’s statement that she was regularly told she did not need one is inconsistent with the doctor’s notes of the consultation on 31 August 2019, “Pap last year not sure will check regarding same”. Again, this is the plaintiff telling the doctor something, that is, she had had the Pap smear or at least thought she had a Pap smear.

(7) Further, the notes do not record these allegedly regular visits to the defendant and discussions (3 or 4 times a year) about pap smears. For example, the plaintiff only saw the doctor once in 2017.

(8) There was nothing about the defendant’s evidence or the way she answered questions in cross-examination which would tend to suggest that she was an unreliable witness or that she was simply not telling the truth to protect her position. Although the defendant was herself stressed by the situation, that is the plaintiff being in dire circumstances and attributing responsibility to her, she gave evidence in a considered way and made concessions when it was appropriate to do so, but maintained her overall position that her conduct, advice, treatment and follow-up was consistent with proper and competent professional practice.

(9) No explanation was put forward by the plaintiff (by that I mean the plaintiff’s legal representatives) as to why the defendant would have given advice which was plainly wrong over and over again. Mr Toomey SC raised the prospect of a misunderstanding or the patient not understanding the advice being given, and whether the defendant had considered that. It may be possible that the plaintiff did not understand the advice when first given in April 2014. It may be possible that the defendant did not follow her usual practice at that time. Indeed, cross-examination of the defendant tends to suggest that she may not have followed precisely her usual practice but it does not follow that she must have given advice in such a confusing way that the plaintiff did not understand it. In any event, even if that be so, the doctor would not have known that she did not understand it and would have believed that she could understand it, because when the plaintiff returned in April 2015 the effect of what she said to the defendant was that she had had a Pap smear, albeit the defendant did not enquire when and from whom.

(10) Finally, the plaintiff’s suggestion that even when the defendant was informing her of the discovery of HPV, the defendant reminded her that she had said she did not need to have a Pap smear seems absurd. If it was meant to be an expression of admission, I reject it. I reject the plaintiff’s assertion that the defendant reminded the plaintiff that she did not need a Pap smear.

(11) In the end, I prefer the defendant’s version, supported as it is by the extensive contemporaneous records and the plausibility and probabilities of what occurred.

As to causation, the New South Wales Supreme Court provided that the drawing of an inference that the plaintiff would have undertaken a papsmear at any time when the precancerous and cancerous changes might have been detected and treated is difficult in the particular circumstances of this case. That is because all of the evidence points in one direction, which is towards the inference that the plaintiff did not want to or chose not to have one for reasons which may be personal to her.

Ultimately, on 15 My 2024, the New South Wales Supreme Court made judgement for the defendant, and the plaintiff was not successful. The Court further ordered that the plaintiff is to pay the defendant’s costs.

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