Gisborne cervical smear appeal heard in London

By BRONWYN SELL

LONDON - What started as a regular smear test in Gisborne more than 10 years ago ended up in the highest court in the Commonwealth this week as the lawyers of a woman with cervical cancer fought for her right to sue.

The woman, known to London's Privy Council as A and to Herald readers as Jane, sparked a ministerial inquiry when she sued retired Gisborne pathologist Dr Michael Bottrill for misreading slides that should have given her early warning of the cancer.

She lost her case and a subsequent appeal but, after publicity, other Gisborne women with cancer raised the same complaint.

The official inquiry that resulted found that Dr Bottrill and the Ministry of Health should share the blame for the under-reporting of smears that led to dozens of women developing cervical cancer. Many have since died.

This week, Patient A's lawyer, Antonia Fisher, donned wig and gown and asked the five judges of the Privy Council to send the case back to the High Court in NZ for a retrial.

In a panelled courtroom next to 10 Downing St, Ms Fisher argued that her client should be able to seek exemplary damages from Dr Bottrill because his behaviour in misreading slides was "outrageous and flagrant negligence" and that he must have known he was taking a risk when he continued to under-report suspect slides. She said he had failed to keep up to date with developments in his field.

Chris Hodson, QC, for Dr Bottrill, argued that the pathologist did not know he was taking a risk in his reading of the slides, because he was confident of his competency.

Mr Hodson 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.

Mr Hodson said his client had been punished. He was now in his early 70s and in bad health and still faced the threat of medical tribunal action.

Mr Hodson said New Zealand's accident compensation laws were sufficient to cover the appellant's health costs, and an award of exemplary damages would open up the health system and other services and industries to further litigation, in this matter and others.

The country might or might not owe Patient A something, but Dr Bottrill did not, he said.

Ms Fisher said a fear of an increase in litigation had no base in reality in New Zealand and patients did not treat claims for exemplary damages lightly.

"The Dr Bottrill case, one would hope, would never happen again."

Ms Fisher also argued that evidence establishing a history of under-reporting by Dr Bottrill had come to light since the initial High Court trial.

That evidence could have had an impact on the decision, she said.

"Because he was assumed to be competent, a benign view was taken [at the initial trial] of all these failings.

"Now we know he wasn't competent, all his failings show up in a different light, and we begin to see that he was taking very grave risks."

Counsel for Dr Bottrill said the judges were not expected to rule on the case until well into next month.

Feature: Gisborne Cervical Screening Inquiry

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