Sullivan Nicolaides v Papa [2011] QCA 257 – more than just monitoring required Sullivan Nicolaides v Papa [2011] QCA 257 – more than just monitoring required

Sullivan Nicolaides v Papa [2011] QCA 257 – more than just monitoring required

9 November 2011 | Health Sector
A recent decision of the Queensland Court of Appeal confirms that sometimes a pathology service needs to do more than just provide accurate test results.

Mrs Papa had been the recipient of an artificial mitral valve. She required lifelong anti-coagulant therapy (warfarin medication) as a result. Sullivan Nicolaides’ Warfarin Care Service had been monitoring the levels of warfarin in Mrs Papa's blood. Warfarin levels were translated into a measure of clotting time (INR) which was advised to Mrs Papa and her general practitioner together with recommendations regarding her warfarin dose. Both high and low INR levels carry significant risks. Mrs Papa's INR levels had been both too high and too low during early 2002, and on 27 February 2002 a pathologist from Sullivan Nicolaides advised Mrs Papa and her general practitioner that Sullivan Nicolaides would no longer monitor Mrs Papa's INR levels. This was apparently because it apprehended that she had not been compliant with its guidelines.

Mrs Papa saw her general practitioner on 28 February. He adjusted her warfarin dose and referred her to another warfarin monitoring service. On 29 February Mrs Papa suffered a stroke that resulted in severe injuries.

The trial judge found that Sullivan Nicolaides should have contacted Mrs Papa and her GP to alert them to the sub-therapeutic INR readings and recommend that additional steps be taken to remedy that issue including investigating alternative forms of anti-coagulation. The judge found that if Sullivan Nicolaides had done this, Mrs Papa would have been referred to her cardiologist and that treatment recommended by him would most likely have prevented her suffering a stroke.

Sullivan Nicolaides appealed. It argued that the claim was one for the loss of a chance of a better outcome and therefore not one in which Mrs Papa could recover damages (as a plaintiff must show it is at least 51% likely they have suffered an injury to recover damages). It argued that the evidence did not support either the liability or causation findings and that the findings were reached relying too much on the benefit of hindsight.

The Court of Appeal rejected these arguments. The majority found there was sufficient evidence to support the findings on both liability and causation. The dissenting judge would have allowed the appeal on the basis it was no more than speculative that Mrs Papa would have undergone the treatment suggested by her cardiologist (which itself carried significant risks).

The case illustrates the issues that may arise where a number of different medical practitioners or services are treating a patient. Sullivan Nicolaides provided monitoring of Mrs Papa’s INR and warfarin dosage recommendations. It probably saw this as its primary role. The court however accepted that although the expert evidence was mixed, something more was required. A ‘business as usual’ approach was in this case, not enough.

Article by Andrew Drynan, Senior Associate.