Ruling clears way for victim to sue Bottrill

By ANGELA GREGORY

The Privy Council has decided the woman who triggered the Gisborne cervical cancer inquiry is entitled to sue Dr Michael Bottrill, but she still hopes to settle her case against the retired pathologist outside the courtroom.

Because of name suppression, the Auckland woman is only known to Weekend Herald readers as Jane, the mother of three young children who discovered she had developed invasive cancer in 1995.

Dr Bottrill had about 10 years ago misread her regular smear test results, mistaking high-grade abnormalities as normal.

Jane had to have a radical hysterectomy, radiation and other medical treatment which has left her with permanent nerve damage to one leg.

The 33-year-old told the Weekend Herald yesterday she and her family were thrilled with the Privy Council decision.

But after years of legal battles she still hoped the matter could be settled outside a courtroom because of the financial and personal toll.

"I don't want to go back to court ... but if I have to I will ... it was gross negligence."

Jane unsuccessfully sued Dr Bottrill in 1999, before the ministerial inquiry into the mass under-reporting of smears in Gisborne between 1990 and 1996.

Dozens of women developed cervical cancer, and some died.

The inquiry report blamed both Dr Bottrill and the Ministry of Health, but ruled out compensation, since personal injury is covered by ACC.

Jane sought a retrial of her exemplary-damages lawsuit against Dr Bottrill over his repeated slide misreadings.

Justice Young, the trial judge in the High Court at Auckland, agreed to a retrial, but the Appeal Court overturned his decision, ruling there was no evidence that Dr Bottrill had conscious disregard for Jane.

Jane's lawyer, Antonia Fisher, told the Court of Appeal last September she would seek leave to appeal to the Privy Council on the basis that Dr Bottrill's negligence and incompetence were sufficiently serious to justify an award of exemplary damages.

Ms Fisher and fellow solicitor Belinda Clausen-Johns took the case to London in May, and are still awaiting the full decision.

"Until then, we do not know how far-reaching it is," she said.

Ms Fisher said exemplary damages cases against doctors were usually settled out of court, but a psychiatrist was last year successfully sued after developing a sexual relationship with a patient.

She thought the Privy Council decision was unlikely to affect a class action by 41 Gisborne women against health officials and Dr Bottrill for trauma and mental injury as a result of the misread smears.

The women have 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 (since incorporated into the Health Ministry).

Ms Fisher said the Government should meanwhile rethink its decision to abolish the Privy Council.

"We are a small society. I think the independence and objectivity of the Privy Council has a lot to offer."

Dr Bottrill's lawyer, Chris Hodson, QC, is overseas but a spokesman said the retired pathologist was very disappointed at the Privy Council decision, which meant he would face further legal proceedings in court.

Mr Hodson had previously argued Dr Bottrill did not know he was taking a risk in his reading of the slides, because he was confident of his competency.

Mr Hodson had said that to award exemplary damages, a court would have to be satisfied that Dr Bottrill had known he was taking a risk, not merely that he should have known.

In the latter stages of his career, Dr Bottrill had been following general practice and his competency was not questioned until after his retirement.