The determined few who pushed for Gisborne cancer inquiry

By FIONA BARBER

For lawyer Antonia Fisher, the verdict was a bitter blow. Seldom had a loss in court trespassed so obtrusively on her private life.

Justice William Young had dismissed - by only a narrow margin - her client's bid for exemplary damages against Dr Michael Bottrill, the retired Gisborne pathologist at the centre of the three-month inquiry that wrapped up yesterday.

For Stuart Grieve, QC, the barrister who joined Antonia Fisher in the High Court litigation, losing the case was less severe a blow.

But during a solitary Sunday morning bike ride, he decided that to let the issue end with the High Court decision - or maybe an appeal - was not the right thing to do.

The woman at the centre of the case - known to Herald readers as Jane - recalls the time between the courtroom loss and the decision to launch a fresh offensive.

"On Friday, my advice was 'walk away, that's it, there's nothing more we can do'," she says. But by Sunday the outlook had changed.

"Stuart [Grieve] said 'I think we've got to attack this thing again'."

So it was that, out of the remnants of defeat, a group emerged to press for a wider investigation.

The question hanging over the safety of other women would not be left unanswered.

At regular evening meetings in Antonia Fisher and Mr Grieve's home, they discussed how to push on, despite the court outcome.

In the group were people who, as Jane later described, "having heard in court how appallingly Dr Bottrill practised, their social conscience meant they had genuine concerns for the safety and wellbeing of the community and Gisborne - the people for whom Dr Bottrill had been responsible."

Among them were Dr George Hitchcock, a retired high-ranking pathologist who was an expert witness for Jane during her trial, and Jane's gynaecologist, Dr Andrew McIntosh, who had also testified.

A gynaecologist-turned-lawyer, Murray Jamieson, was also there.

"There was a conviction there was something wrong here that had huge potential for other people," says Mr Grieve, "that really came home to me once we had the first meeting."

Indeed, anyone sitting in Courtroom 8 during the High Court trial might have come to the same realisation.

There in the witness box was a pathologist with a faltering memory but unswerving faith in his own ability to read cervical smears.

Until then, Dr Michael Bottrill had been a faceless opponent, a name on legal papers, ACC forms, disciplinary committee reports.

Jane had wondered if there were other victims of his misreporting, but what she and her lawyers now heard and saw magnified their fears.

Dr Bottrill conceded his short-term memory had been crippled since 1990. He also admitted storing cervical slides in a shed behind his laboratory and to having no system warning him if patients had previous abnormal smears.

When asked why he kept a database of smear histories when he did not, as a matter of course, refer back to them, Dr Bottrill said it was "rather nice, helpful" to go back to old slides when abnormalities were found. Another cited reason was "statistics."

He made other concessions, including admitting he lacked a quality assurance programme. But even more haunting was the knowledge that this man, struggling for clarity, had screened thousands of slides.

Reality check: chances were there more women with misread smears.

"After the judge's decision, I was gutted," Jane later told the inquiry.

"I felt let down by both the medical fraternity and the judicial system, and still Dr Bottrill went unpunished."

She had wanted to walk away - and would have done so if it had not been for the team who continued to work on her case.

"It has been truly humbling to see them hold evening meetings in their own time and in their own homes to research and plan. And all this was going on before any involvement with the HFA or politicians."

Within days of the High Court defeat, Mr Grieve had written a letter to health officials warning them that other women could be affected.

Soon after the trial and its publicity, Alliance MP Phillida Bunkle raised the matter in Parliament.

Janice Hobbs, from the Gisborne East Coast Cancer Society, had also been on a quest for answers and, after the court case, another courageous woman came forward and went public with her story.

More and more Gisborne women were now asking whether their slides, too, had been misread.

Wellington barrister Bruce Corkill began seeing clients with misread smears and he brought in Gisborne lawyer Victoria Anderson. By the time the inquiry's preliminary hearings were held late last year, the lawyers representing women had joined forces. The team was later joined by Auckland lawyer Prue Kapua, who concentrated on issues affecting Maori women.

But Jane's push for accountability would not come without first scaling significant hurdles, some which predated the trial.

It effectively took the courage of one woman to spark a widespread investigation into Dr Bottrill's smear-reading.

It is cold comfort for women whose lives have been blighted or lost through cancer, but no one in power, it seems, had the mandate to push for a wider investigation when the seeds of a public health scandal started to germinate in the mid-1990s.

In the end it was left to Jane, the cancer survivor with misread smear tests, who refused to let the question over the retired pathologist's competence rest in a mire of medical bureaucracy.

Without her and determined others, Gisborne women may never have learned from Australian experts - and from the pathologist himself - that he was simply not reporting enough cancerwarning signs.

By 1995, Jane, a mother-of-three, had already survived the invasive cancer and the harrowing treatments to stall its advance and was ready to act against the pathologist whom she charged with endangering her life.

She turned first to ACC, which ruled medical misadventure and, as then required by law, passed the matter to the Medical Practitioners' Disciplinary Committee.

For the man defending Dr Bottrill, Christopher Hodson, QC, the case which first arrived on the solid desk in his Lambton Quay chambers looked like others referred by the Medical Protection Society.

The only thing which set this one apart was the fact that the plaintiff had two slides which had been read as normal but which, when re-read, showed high-grade abnormalities. (Four slides were questioned in the court case, but the defence maintained only two were true false negatives because they varied by more than one grade from re-read results.)

"I thought it was just awful bad luck for the patient; remember, [the slides] were separated by some years," said Mr Hodson during a break in the inquiry.

The verdict from the disciplinary committee was a low-grade charge of conduct unbecoming - conduct, it decreed, which fell substantially below that expected of a senior consultant pathologist.

Reporting of two slides had been seriously deficient, denying the woman the opportunity of earlier treatment.

Within hours of calling the committee secretary to check details of this case, the Herald received a fax from Dr Bottrill's lawyers, warning, spuriously as it later emerged, that the newspaper was potentially in contempt of High Court proceedings if the findings or any matter relating to them were published.

Later, Mr Hodson described the letter as a tactic he used from time to time to keep his clients' names out of the paper.

"I think by now the media knows better not to accept it," he said.

At the same time, with the court case still pending, Jane's lawyers were also anxious to avoid publicity.

So the case stayed in the background until March last year, when it came before the High Court in Auckland.

During the course of the trial, Jane and Dr Bottrill had their names suppressed.

That meant when Alliance MP Phillida Bunkle tried in Parliament to lift the lid on the mounting health scare in the wake of the trial, she could not name the doctor.

But she did identify Gisborne as the affected region, prompting a defensive strike from East Coast MP Janet Mackey, who later said she was worried about jeopardising any legal appeal by igniting the matter in Parliament.

To be fair, Dr Bottrill never sought suppression, but was granted the cover when Jane's identity was suppressed. Nevertheless, his lawyers fiercely protected it.

After Mr Grieve wrote to health authorities, including the Health Funding Authority, the Royal Australasian College of Pathologists and the Minister of Health (then Wyatt Creech), warning them that more women could have misread slides, Dr Bottrill's lawyer wrote to the judge, saying Mr Grieve had breached the suppression by naming his client.

Looking back, Mr Hodson said he had no problem with the content of the letter, but Mr Grieve should have asked the court first.

"After that it did get completely out of hand - it's unfortunate that it was election year," said Mr Hodson.

And when the Herald, supported by the Health and Disability Commissioner, applied to the court to have name suppression lifted, Dr Bottrill's lawyers objected on 10 grounds, including the assertion that there was "no justifiable element of public interest sufficient for the court to reverse its order."

Mr Hodson said that as soon as it was clear the situation was serious, "we consented to the suppression being lifted."

Indeed, his client revealed himself, several days before the court required it.

All the while, as the scandal was gathering momentum and the Health Funding Authority was under increasing pressure to act, a Royal College of Pathologists of Australasia spokesman, Dr Andrew Tie, was dismissing the need for a mass rechecking of all the slides.

In the end, the HFA turned for advice to an independent advisory group.

In his column in the Spring 1999 edition of the college newsletter, Dr Tie set out his position: "I have attracted criticism for comments about the Health Funding Authority's rationale in investigating matters in Gisborne, but the sporadic news reports mainly seem to confirm the expectation that cervical screening there has not been demonstrably worse than average.

"However, with an election coming up, who knows what will be dreamed up to grab the headlines."

And in another edition: "What has surprised me is the number of people who seem to have swallowed the media noise and jumped to the conclusion that Dr Bottrill was incompetent."

Although some of these comments - raised at the inquiry - were described as a personal view, the college initially opposed the HFA's plans to rescreen almost 23,000 slides, on the grounds that there were better ways of checking.

The pathologists were not alone in their opposition - two inquiry expert witnesses also questioned the wisdom of such a drastic plan.

But, thanks to the re-reading and the follow-up examinations, some women discovered they had undiagnosed cancer. It is possible that lives were saved.

Pathologists who opposed that rescreening included Dr Tie and two of his Wellington colleagues, Dr Clinton Teague and Dr Peter Bethwaite, both expert witnesses for Dr Bottrill at the trial.

In the nature of expert witnesses, Dr Teague had also been a witness for Jane in front of the medical disciplinary committee.

During the inquiry, he said that in 1995 he had advised Dr Bottrill to either get his laboratory accredited or send cervical smears elsewhere.

And in October 1998, months before he was scheduled to testify at the High Court case, he was contacted by a Gisborne GP about another potential case involving Dr Bottrill.

Dr Teague told the inquiry he had exhorted the doctor to bring a complaint to medical authorities and he had tried to confirm the second case.

His next move was to tell Dr Bottrill's lawyers about this new case.

Why?

"Because I thought that it was important that they should know so.

"It may temper what they were going to do with the High Court case, I suppose."

Dr Teague said that on the information available to him at the time, he believed Dr Bottrill's results were within the expected range.

During the inquiry, the pathologists' rationale would be slammed for the most fundamental of reasons - the welfare of their patients.

Gynaecologist Dr Ron Jones declared that if the college of pathologists had put patients first, it should have supported an investigation.

Misplaced loyalty, he suggested, had taken priority.

These were serious accusations from within the medical community, but, as Dr Jones pointedly explained in his submission to the inquiry, he got to see the ghastly results of cervical cancer.

Not just a slide, not just a statistic - just a very sick woman.

On the eve of the inquiry, MP Janet Mackey continued to believe there had been more panic than necessary because the matter was "thrown open in the worst possible public way."

Instead, Mrs Mackey wanted random slide re-reading, to get a better fix on Dr Bottrill's diagnoses.

"What we didn't need to do was to make public an impression that a cervical smear was not worth having."

It now turns out that in Gisborne, at least, some slides were not worth having.

The decision, she said, was possibly a bad judgment call in regard to her own personal profile, but "that would have been the right way to go."

Mrs Mackey was one of 1500 women advised that re-examination of their cervical smears had revealed cell abnormalities.

No doubt, in the sharp glare of hindsight, some of those who urged caution in reacting to the Gisborne situation will be thinking "If only we had known then what we know now."

In the break between inquiry sessions, Mr Hodson, who represented three doctors in the 1987 National Women's inquiry into cervical cancer treatment, described his work defending Dr Bottrill as the "hardest work I've had anywhere."

In the 1987 inquiry, presided over by Judge Silvia Cartwright, Mr Hodson said he had "the privilege" of acting for people who tried to avert a tragedy.

"This time, I'm for the man said to have caused it - it's very different," he said.

"The fact is that Dr Bottrill made mistakes, as has every other doctor in the country, and we will know at the end of the inquiry whether his mistakes are unacceptable or not and whether lessons can be learned from them."

Since then, Dr Bottrill himself has conceded his level of under-reporting was unacceptable.

Accusations that the pathologists closed ranks around one of their own were rebutted by college lawyers, who pointed out that other health professionals also knew the facts.

But, whoever knew, the question remains: should the responsibility for a doctor's competence - and for other patients' safety - fall on the shoulders of the victims?

It was a fact not lost on inquiry panel head Ailsa Duffy, QC, who asked how such concerns could be brought to light in the future without having to resort to expensive legal action.

Herald Online feature: Gisborne Cancer Inquiry

Official website of the Inquiry