Doctor faces Privy Council

A woman who developed cancer after tests were misread by Gisborne pathologist Michael Bottrill has been granted leave to take her case to the Privy Council.

In June, Dr Bottrill won his appeal to stop the woman, known as A, from suing him for a second time.

He had appealed against a High Court decision granting the woman a retrial of her civil claim for exemplary damages.

She developed invasive cancer and had to have a radical hysterectomy and radiation treatment.

Lawyer Antonia Fisher told the Court of Appeal yesterday that A was seeking leave to appeal to the council on the basis that Dr Bottrill's negligence and incompetence were sufficiently serious to justify an award of exemplary damages.

"It raises issues of great public importance," Ms Fisher said.

The test used by the Appeal Court in June when ruling on the question of exemplary damages amounted to an issue of great public importance.

The threshold for such damages was now so high that it virtually ruled out any case of medical negligence being brought in the future.

Ms Fisher said the June decision ruled that if the primary purpose of exemplary damages was to punish, it should be directed to advertent wrongdoing, where the defendant knew the conduct was wrong.

Exemplary damages could be awarded for negligence only when the negligent person knew the risk of what they were doing and carried on either deliberately or recklessly.

"The negligence of Dr Bottrill was extreme. It is hard to imagine a worse case of negligence," Ms Fisher said.

Dr Bottrill's counsel, Rebecca Scott, said he accepted that there was a question of great public importance.

On that basis, he accepted that it could be classified so for the purposes of the appeal.

But the time period for filing documents should be reduced from three months to two months, as Dr Bottrill had been involved in the case for six years now and was in ill health.

The court said leave to appeal to the council was not one of right, and it would not ordinarily be appropriate to grant leave against an interlocutory decision of this kind.

But this was a case of great importance, and leave was granted on condition that security of costs of $2000 was made and papers filed within two months.

After the court hearing, Ms Fisher met Health Minister Annette King and Accident Insurance Minister Lianne Dalziel.

Mrs King's office confirmed the meeting and said there would be further discussions.

Mrs King has in the past expressed sympathy for A, and has said the Government is committed to looking seriously at compensation for all the women who got wrong diagnoses from Dr Bottrill.

Gisborne women have each lodged claims totalling $150,000 - including $50,000 from Dr Bottrill, $50,000 from the Attorney-General (on behalf of the former Health Department and the Health Ministry) and $50,000 from the former Midland Regional Health Authority (which has now been incorporated into the Health Ministry).

Mrs King said in June that she could not pre-empt the cabinet's decision on whether it would offer compensation to avoid a court battle.

"But I have great sympathy for the women and for the fact that we do not have a system in place that allows redress for them."

- NZPA