Court makes rare finding of contributory negligence against a patient: Peterkin v Tadros
Although findings of contributory negligence in medical negligence cases are rare, the NSW Supreme Court has found a patient bore some responsibility for his adverse outcome because he failed to disclose persistent symptoms or act on referrals.
The plaintiff, Mr Ross Peterkin, who was 39 years of age at the relevant time, claimed damages against the defendant, his general practitioner Dr Abram Tadros. Mr Peterkin alleged that Dr Tadros failed to properly investigate his symptoms at a consultation on 23 August 2022 (August 2022 Consultation), and that a delay in diagnosing his rectal cancer resulted in the cancer being incurable, with a reduced life expectancy.
Mr Peterkin alleged that Dr Tadros failed to take an adequate history, properly investigate his reported symptoms, appropriately perform clinical examination and refer him for specialist review.
The trial judge was asked to determine liability, causation and contributory negligence only. [1]
Key facts and chronology
On 23 August 2022, Mr Peterkin presented to Dr Tadros reporting symptoms of rectal bleeding, pain on defecation, bloating, abdominal pain and an urgent but often unsuccessful need to defecate (tenesmus).
Dr Tadros recorded the symptoms and, following visual inspection, he formed a differential diagnosis of haemorrhoids. No digital rectal examination was performed. He prescribed suppositories, supplied an information pamphlet and advised review if symptoms persisted.
Dr Tadros was not Mr Peterkin’s usual general practitioner at the medical centre. In several subsequent presentations with his usual general practitioner, Dr Etemad, Mr Peterkin did not raise his continuing bowel symptoms.
On 8 October 2023, Mr Peterkin saw Dr Etemad, requesting a new script for haemorrhoid cream. During that consultation, Dr Etemad made enquiries and took a full history. Mr Peterkin reported experiencing rectal bleeding a few times a week for around 12 months. Dr Etemad offered differential diagnosis of internal haemorrhoid, polyp, inflammatory bowel disease and cancer, and referred Mr Peterkin to a colorectal surgeon, Dr Hamilton.
On a further consultation on 22 February 2024, Mr Peterkin was still bleeding and had not made his appointment with Dr Hamilton. He had now developed a new symptom of sensation of pressure in his anal area, and this new symptom made Dr Etemad consider cancer as likely. She advised Mr Peterkin to book with Dr Hamilton ‘ASAP’, as a colonoscopy would be required.
Mr Peterkin saw Dr Hamilton on 7 March 2024, and a colonoscopy was expedited by Dr Hamilton, being performed 13 days later.
Given the hospital wait time, Mr Peterkin underwent a surgery on 15 May 2024. He was diagnosed with stage 3B mucinous rectal adenocarcinoma with signet ring cells. Lymph nodes were involved and the disease later progressed to incurable stage 4 cancer.
Key findings on breach
The trial judge addressed the evidence presented by both Mr Peterkin and Dr Tadros. Although unreliable on dates, the trial judge accepted Mr Peterkin’s evidence where supported by contemporaneous messages and records. By contrast, the trial judge found that Dr Tadros’s oral evidence represented reconstruction of evidence from his clinical notes and usual practice, as he had no independent recollection of the August 2022 Consultation.
Both parties adduced evidence from expert GPs. Both GP experts agreed that the presentation called for further inquiry, including standard questions about symptom duration, bleeding and pain. Where the GP experts’ opinion deviated, the trial judge found that Dr Tadros’s GP’s supportive opinion was formed by relying on factual assumptions he was asked to presume. Accordingly, there was no peer professional opinion in support of Dr Tadros’s conduct.
The court found the burden of precaution was slight, in that Dr Tadros was only required to make enquiries about how long the symptoms of rectal bleeding with tenesmus had been ongoing. The failure to do so represented a departure from the accepted standard of care.
Causation
The trial judge addressed the causation aspects in a substantive manner. Using his actual conduct as the most reliable guide, and allowing for delay in obtaining specialist review and colonoscopy date, the court found that proper questioning and referral in the August 2022 Consultation would probably have led to diagnosis by about February 2023.
The parties adduced evidence from expert oncologists to provide evidence on the stage of the rectal cancer hypothetically in February 2023 as opposed to the actual diagnosis in May 2024. While both experts provided compelling evidence, the trial judge preferred the evidence of Mr Peterkin’s expert, in that, by February 2023, the cancer would have been stage 3B but much smaller and less bulky than at diagnosis in May 2024. Earlier diagnosis would still have required neoadjuvant therapy and surgery, but likely without the pre-treatment colostomy and with a substantially better prognosis.
Given that an intra-operative perforation occurred during the surgical resection of the rectal cancer, the trial judge accepted the evidence of the oncologist expert that the larger, more advanced tumour increased that risk. The perforation materially contributed to early pelvic recurrence, which was unlikely to have occurred if Mr Peterkin had undergone surgery in early 2023.
The court concluded that the negligent delay by Dr Tadros reduced Mr Peterkin’s life expectancy from about February 2032 to about mid-2027, ie a reduction of approximately 4.75 years.
Contributory negligence
This aspect of the judgment is of most interest. The court found that Mr Peterkin, in failing to see a doctor in the months before the August 2022 Consultation, failing to have regard to the informative pamphlet provided by Dr Tadros, failing to mention his gradually worsening symptoms at the consultations between August 2022 and October 2023 and delaying an appointment with Dr Hamilton for 137 days after the October 2023 consultation, failed to take reasonable care for his own health.
Those failures contributed to the delay in diagnosis from February 2023 to May 2024. The trial judge held that Mr Peterkin was contributorily negligent, with the percentage to be determined at a later time.
Key takeaway
Although findings of contributory negligence in medical negligence cases remain rare because of the inherent power imbalance and specialised knowledge gap between patients and healthcare professionals, this decision emphasises that patients may nonetheless bear some responsibility for adverse outcomes where they knowingly fail to disclose persistent symptoms or act in a timely manner on referrals.
[1] Peterkin v Tadros [2026] NSWSC 1185.
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