The court ruling this week in favour of Gisborne pathologist Dr Michael Bottrill provoked considerable criticism. Here we summarise the arguments supporting that judgment and the dissenting view.
Judgment
When the Court of Appeal sat down to consider whether one of Michael Bottrill's patients should have another day in court it was confronted with two important questions.
The first was the purpose of exemplary damages and the second was whether the revelation from a Sydney laboratory audit - that the pathologist had misread hundreds of smear slides - justified allowing the woman, known to Herald readers simply as Jane, to sue him again.
The questions proved vexing for one member of the court. More than half the 70-page judgment is devoted to a dissenting opinion by Justice Edmund Thomas.
For the other members of the court, Justices Richardson, Gault, Blanchard and Tipping, the matters were more clear-cut.
Their judgment began with the rules governing the ordering of a new trial, principles that they said were "well settled." They quoted English authority, Lord Denning: "First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible."
The four judges agreed that the first and third criteria were satisfied but said that at issue was whether, if given at Bottrill's original trial, the Sydney evidence would probably have had an important influence on the result of the case.
The judgment then traversed the trial in which Jane, who had suffered invasive cervical cancer after Dr Bottrill misread her smear test slides, sought exemplary damages of $100,000.
Four smears were taken between November 1990 and December 1994. Dr Bottrill found the first smear, taken when Jane was pregnant, was "outside normal limits" and recommended a post-natal repeat test.
A month later, however, Jane had another test and Dr Bottrill reported "no atypical cells seen." He reported nothing abnormal in a May 1992 test although inflammation was present. When a fourth test was carried out in December 1994 abnormal cells were detected by the pathologist, who recommended a referral for assessment. Three weeks later biopsies revealed cancerous cells and a gynaecologist diagnosed invasive cervical cancer. Jane had a radical hysterectomy and extensive radiation therapy.
A subsequent examination revealed all four smears had been wrongly read. The first three revealed high-grade lesions and the fourth showed invasive carcinoma.
Jane made a successful claim for accident compensation and disciplinary proceedings found Dr Bottrill guilty of conduct unbecoming a medical practitioner. The only punitive sanction was a fineof $400.
The trial judge, Justice Young, had discussed at length the availability to Jane of exemplary damages and applied an existing legal test:
"Exemplary damages for negligence causing personal injury may be awarded if, but only if, the level of negligence is so high that it amounts to an outrageous and flagrant disregard for the plaintiff's safety, meriting condemnation and punishment."
He then turned to the medical background of the case, the development of cervical cancer and the results of tests in which Jane's slides were referred to four pathologists and five laboratories and in two instances were misread. Evidence had been given that up to 20 per cent of slides returned false negatives.
Dr Bottrill was the only examiner of cervical smears in the Gisborne laboratory between 1968 and his retirement in 1996. Between 1990 and 1994 he was examining between 4000 and 5000 slides a year, more than 90 per cent of cervical smears taken in the geographical area.
The judge found that Dr Bottrill's active interest in his own continuing education began to flag; that his health was suspect; that he was genuinely suspicious of the benefits of what are largely document-based accreditation systems; that he was disinclined to participate in quality control systems, partly because of a suspicion of new-fangled ideas, and also a reluctance to incur costs and time in relation to his own professional development, given the comparative imminence of his intended retirement.
The judge also found that at a very general level he also believed that the availability of a recommended quality assurance programme was not appropriate for New Zealand conditions or at least cost-effective for him.
Importantly, in relation to the new trial application, the judge found that there was no evidence before him that suggested any systemic pattern of under- or over-reporting of slides. There was, in fact, no evidence that they were consistently wrong. If Dr Bottrill was persistently and incompetently wrong in his reporting, the judge thought that would have shown up.
However the judge had no hesitation in concluding that Dr Bottrill was guilty of negligence in misreading and misreporting of Jane's slides.
The judge said: "In this case I think that a combination of Dr Bottrill's age, medical condition, lack of focus on his own professional skills and their development and maintenance are at least likely to have contributed to the errors he made. I have to say, however, the literature does support the view that a significant element of false negative reporting is intractable despite all these precautions."
He concluded that in the end, and by a narrow margin, the case did not fall into that very limited category of negligence cases which would warrant an award of exemplary damages.
He gave the following reasons:
* There was no fair suggestion of bad faith, high handedness, or contumelious disregard of the rights of others.
* There is no suggestion that he was acting outside the relevant requirements of his profession or indeed its recommendations, apart from non-participation in the external quality control programme.
* There was no evidence of recklessness in the subjective sense of recognising that failing to go along with these practices would in fact cause an appreciable risk to women.
* He was not satisfied that independent screening, quality control programmes or accreditation would have precluded the errors.
"Although many of Dr Bottrill's procedures could be regarded as sub-optimal," the judge said, "there were no respects in which he can be said to be outside the range of behaviour considered to be acceptable within laboratories.
Accreditation was not compulsory or universal. There was no apparent requirement for random rescreening to be performed by someone who had not examined the original slides.
"While there is controversy as to the extent to which compliance with a body of opinion within the medical profession is a defence to an allegation of negligence, it does seem to me that such compliance will be an answer to a claim for exemplary damages. I think that if Dr Bottrill was seriously incompetent or seriously under-trained this would have become apparent long before now."
After the trial, a large number of Dr Bottrill's slides were sent to Sydney for re-reading. Of 857 slides found to be abnormal, Dr Bottrill had reported 562 of them as normal.
Jane made an application for a new trial.
Justice Young, in considering that application, said: "The evidence which emerges from this re-reading exercise very substantially undermines a significant step in my reasoning in dismissing the claim for exemplary damages. That evidence suggests that Dr Bottrill was not competent, at least in the period under investigation, to read and report on cervical smears.
"In my principal judgment, I proceeded on the basis that it had not been proved that Dr Bottrill was incompetent in that sense. Moreover, although there were deficiencies in the quality control programmes in place in the first half of the 1990s, it seems highly probable that Dr Bottrill's apparent incompetence - his apparent fundamental inability to read and report acceptably on cervical smears - would have been detected had he engaged in the quality control programmes then available."
He stated, however, that even given that evidence he did not believe it likely the test for exemplary damages had been passed because the negligence of Dr Bottrill could not be regarded as amounting to an "outrageous and blatant disregard for the plaintiff's safety."
He saw that recklessness was an essential element of a claim for exemplary damages based on negligence and that, as the new evidence did not establish recklessness (in the sense of a subjective consciousness on the part of Dr Bottrill that he was exposing women to an unacceptable risk of harm), the new evidence did not go far enough to support the application for a new trial.
However, he did not believe that recklessness was an essential element that had to be established before a claim could proceed. It was at least possible that Dr Bottrill had some inkling of questions over his reporting and the judge wasn't prepared to resolve that question before a new trial.
The judge also noted that Jane had already incurred considerable legal costs. There was no offer by Dr Bottrill to meet her legal costs so a new trial was appropriate.
In reviewing the judge's ruling, the Court of Appeal majority decision confirmed that the Sydney evidence did not reveal that Dr Bottrill was actually aware of his deficiencies, let alone that he was misreading Jane's slides and putting her at risk.
"It established only that Dr Bottrill's error rate was abnormally high," the judges said. "It does not support the proposition that at the time he read Jane's slides Dr Bottrill was subjectively aware of the fact that his error rate was abnormally high.
"It does not support the proposition that Dr Bottrill was subjectively reckless in the sense of being subjectively aware of the risk to which he exposed his patients in general, and Jane in particular, by continuing to practise between 1990 and 1994 (the period during which the smears were taken from Jane) or by failing to employ quality control processes.
"Nor does it go to establishing that Dr Bottrill was objectively reckless by ignoring an obvious risk of harm to his patients in general and Jane in particular."
Jane's counsel, Antonia Fisher, accepted that the new evidence did not support a claim of conscious wrongdoing if that was required.
Her submission was that exemplary damages could be awarded where the conduct of the defendant was so grossly negligent it must be characterised as reckless, even though the defendant is unaware of his or her own recklessness.
The question facing the appeal judges was this: Is deliberate or conscious recklessness required before exemplary damages can be considered? The judgment canvassed decisions on exemplary damages over the past 20 years.
The judges found that the principles and legal policy underlying exemplary damages in this country weigh heavily in favour of confining the remedy to those cases where the defendant is subjectively aware of the risk to which his or her conduct exposes the plaintiff and acts deliberately or recklessly taking that risk.
The judges made six points on the nature of exemplary damages.
* The main purpose is to punish the defendant
* The quality of the defendant's conduct, not the action, is the focus.
* There should be no element of compensation in an award of exemplary damages.
* Exemplary damages should not be used to overcome any perceived inadequacies in accident compensation.
* Conduct justifying exemplary damages might be described by epithets such as wilful, wanton, high-handed, oppressive, malicious and outrageous.
* A test of subjective recklessness in exemplary damages cases is similar to the requirement for subjective recklessness in murder cases.
The appeal court felt there were three powerful considerations that pointed strongly against removing the need for conscious appreciation, on the defendant's part, of the risk to the plaintiff.
It would be difficult to draw any line between disregard of risk and simple negligence simply by using words such as "wanton" or "extreme."
Secondly, wherever the line was drawn, the class of potential claimants would still be so wide and the circumstances for consideration so variable that the practical limits of the potential liability for punishment would be very difficult to predict.
The court also felt that expanding the scope of exemplary damages could have major effects on the cost of services and the insurance ramifications for those at risk of being sued.
The court quoted authorities in Australia, Britain, Canada and the United States in support of its view that exemplary damages should be available in negligence cases only where the defendant was aware of the risk to the plaintiff.
The appeal judges were also satisfied that the Sydney evidence could not justify a new trial.
"There is nothing in that retrospective post-trial analysis of his error rate in reading slides to support an argument that at the relevant time, when he was reading and reporting on the plaintiff's smears, he was aware of his deficiencies in that regard, or of failings in instituting and maintaining systems and procedures," the judgment said.
"We cannot see any justification on a new trial application for revisiting those findings on the basis of the new and restricted Sydney evidence as the judge seems to contemplate in his new trial judgment.
"The judge appears to be saying that, because we now know that there were many more errors in reading and reporting on the smears than was previously appreciated, if the case is reconsidered at a new trial we might find that there is evidence not given at the first trial that would put Dr Bottrill on notice of practice failings."
Their majority view was unequivocal: it could not plausibly be argued that Dr Bottrill had a conscious disregard for his patient's welfare.
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