BT v. Oei

[1999] NSWSC 1082
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The case was brought by BT on behalf of herself and on behalf of the estate of her late husband, AT, against the defendant, a general practitioner, who was AT’s doctor from 26 November 1991 to 22 January 1993. The case arose as a result of the defendant’s alleged negligent failure to diagnose AT’s HIV illness, and to counsel him to undergo an HIV antibody test.

Early in 1992, AT was confirmed to have contracted Hepatitis B.  The defendant obtained a history of AT’s sexual encounters wherein AT referred to ‘casual exploits’ as a possible source of the infection. In late 1992, AT returned to the defendant, complaining of fever, aches and pains. The defendant concluded that it would not be necessary for AT to undergo an HIV antibody test, despite the fact that AT, during the period between 1992 to 1993, had experienced a recurrence of symptoms that were consistent with an HIV infection.

When AT received treatment from another doctor in 1994 for his liver condition, he was advised to take an HIV antibody test and was confirmed to be HIV positive. BT who lived with AT as his wife became infected with HIV by AT some time around January 1993.

BT claimed that the defendant, in addition to owing AT a duty of care as the basis of the doctor-patient relationship, also owed her a duty of care.  She claimed that this duty entailed diagnosing AT’s HIV infection, and giving proper counseling and advice to AT as to the need for an HIV antibody test. The duty owed to BT (and any other sexual partner of AT) would be discharged by the diagnosis and proper advice to the patient.

On the issue of whether the defendant owed BT a duty of care, the Court considered the arguments of both the plaintiff and the defendant. BT submitted that considering the defendant’s specialist training and knowledge, he was in a position to know that, in light of AT’s history and symptoms, he was at risk of having contracted the HIV virus and that it was reasonably foreseeable that AT, if HIV positive, would transmit the virus to his sexual partners. The defendant submitted that the class to which BT belonged did not just include all of AT’s potential sexual partners, but also all persons at risk of infection by AT, a group which included health workers and others who might come into contact with AT’s blood. Since the people in this class could not be known or ascertained by the defendant, it was difficult to establish a duty of care. The defendant also relied on a conflict of interest, therapeutic privilege and doctor/patient confidentiality in relation to the broader question of whether it would be appropriate to impose a duty of care on a practitioner in relation to the sexual partners of his or her patient.

On this issue, the Court held that even though the members of the class may not be known to the defendant, a duty of care still existed. In relation to the conflict of interest argument, the Court determined that the defendant’s argument that the duty to his patient would not allow him to place the interest of any person above that of his patient did not hold much force as it was not suggested that the content of the duty required the doctor to warn his patient’s sexual partners. Thus, it was difficult to see how a conflict of interest could arise. The Court further held that confidentiality was of not a concern as there was no suggestion that the obligation on the doctor would extend beyond giving his patient adequate advice.

Thus, considering that (a) there was no conflict between the duty owed by the defendant to AT and BT as the two were coincident, (b) BT was AT’s sexual partner, (c) it was reasonable foreseeable that if AT was HIV positive, he would transmit the virus to a sexual partner, (d) AT was unaware of his HIV status, (e) the defendant’s specialist knowledge and training equipped him to identify the risk that AT had contracted HIV, and (f) and the failure to diagnose and adequately counsel AT to undertake an HIV antibody test, exposed AT’s sexual partner(s) to the real risk of contracting a fatal disease, the Court held that the plaintiff successfully established that the defendant owed her a duty of care.

The Court asserted that the nature and the content of the defendant’s duty to AT and, by extension, to BT was to exercise the reasonable care and skill expected of a general practitioner in 1992.  After hearing expert evidence, the Court stated that it was likely that the defendant did not consider HIV as a possibility at the time of the consultations with AT in December 1992.  The Court therefore considered whether in 1992 a general practitioner of ordinary skill and care should have considered a diagnosis of HIV and advised as to the need for a test, keeping in mind the circumstances of the case in question--a heterosexual male who had Hepatitis B, presumed to have been sexually acquired, and who had a history of recurrent viral illness and a urinary tract infection. The Court determined that, as of 1 December 1992, when AT returned to the defendant suffering from further viral illness, a general practitioner exercising ordinary care and skill would have considered a diagnosis of HIV and counseled the patient for the need for an HIV antibody test. Thus, the court held that the defendant was negligent in failing to diagnose the possibility of an HIV infection and to counsel AT as to the need to undergo an HIV antibody test.

On the issue of causation the Court considered whether the defendant’s negligence materially contributed to the contraction of the virus by the plaintiff, BT. The Court took into account a number of factors, including (1) whether BT contracted HIV as a result of unprotected sexual contact with AT;  (2) whether AT would have undergone an HIV antibody test if counselled to do so; and (3) whether AT would have taken appropriate steps to protect BT from contracting HIV had he known he was HIV positive.

The Court accepted that BT became infected with HIV as a result of sexual contact with AT, that AT would indeed have undertaken an HIV antibody test in 1992 had he been advised by the defendant to do so and that if he had known of his positive status, he would have taken measures to protect BT from the risk of contracting HIV. Thus, the Court held that the defendant’s negligent failure to properly advise AT with respect to a possible diagnosis of HIV and the need for an HIV antibody test, materially contributed to the plaintiff’s HIV infection.

Ultimately, the Court held for the plaintiff in respect of her personal claim against the defendant. BT was awarded damages for pecuniary loss and for general damages.

With respect to the claim made on behalf of AT’s estate, seeking damages for emotional distress, anxiety, depression and nervous shock, the Court held that there was no evidence to suggest that AT’s reaction to the fact that he unwittingly infected his wife with HIV, was anything other than a normal grief reaction in the circumstances of the case.  Furthermore, there was no expert evidence claiming that AT had sustained any recognizable psychiatric injuries.. Thus, the Court found for the defendant in respect of the claim brought on behalf of the estate of AT.

“87 I do not consider that the fact that the members of the class may not be known or be capable of ready identification by the defendant is determinative of there being no duty of care.” Paragraph 87.

“The defendant submitted that there are policy reasons which tell against a duty being owed by the defendant to BT. Firstly, any such duty, it was submitted, may involve a conflict with the duty owed by the defendant to AT. A doctor's duty to his patient does not permit him to place the interests of any person above those of his patient. A conflict, actual or potential, is a strong policy reason, so it was submitted, to hold against the existence of a secondary duty to a person such as BT. Such a submission would have more force if it were being suggested that the content of the duty required the doctor to warn his patient's sexual partners. That is not the case here. The duty is discharged by the doctor providing his patient with appropriate and adequate advice. In such a circumstance it is difficult to see how as a matter of practical reality a conflict could arise.” Paragraph 95.

“I accept Dr Fisher's evidence that the presence of Hepatitis B (believed to have been sexually acquired) should have alerted a reasonably competent practitioner in 1992 to the possibility that his/her patient had contracted other sexually transmitted diseases including HIV. . . . I am satisified that as at 1 December 1992 when AT returned to the defendant's rooms apparently suffering a further viral illness, having regard to the likelihood that the Hepatitis B was contracted as the result of sexual contact and in the light of the earlier history of viral illnesses, a general practitioner exercising ordinary care and skill would have considered a diagnosis of HIV and counselled the need for an HIV antibody test.” Paragraphs 133-134.

“I therefore find that had AT been appropriately counselled as at December 1992 he would have undergone an HIV antibody test. Such a test would have shown he had contracted HIV. Proper advice would have brought home to him the need to protect his partner from risk of infections and the means to do so. The couple would not have engaged in unprotected sexual relations thereafter. In the event, unaware of his HIV condition on an occasion between late January and mid February 1993, the couple engaged in unprotected sexual intercourse and BT thereby contracted HIV. The defendant's negligent failure to properly advise AT with respect to a possible diagnosis of HIV and the need for an antibody test materially contributed to the plaintiff's infection with the virus.” Paragraph 183.