Kennedy v Frankel

Factual and Procedural Background

The Plaintiff, a retired primary school teacher aged 56, developed a tremor in 2006, prompting her husband, a retired consultant neurologist, to arrange a private consultation with the Defendant, a specialist in movement disorders. The Defendant diagnosed Parkinson's disease and prescribed dopamine agonist medication, which led to the Plaintiff developing impulse control disorder (ICD) and psychosis. The Plaintiff claims clinical negligence against the Defendant for failing to warn her of the risk of ICD and for inadequate response once symptoms appeared. It was later discovered that the Plaintiff did not have Parkinson's disease, though no negligent misdiagnosis is alleged.

The claim concerns losses arising from ICD and psychosis, including treatment, care, increased spending, and costs related to marital separation. The Defendant denies liability, maintaining that treatment was reasonable and that any failure to warn would not have altered the timing of cessation of medication.

During procedural exchanges, the Defendant sought to rely on a recent Court of Appeal decision to argue that psychosis was a coincidental injury outside the scope of duty; this argument was deferred pending resolution of breach of duty and causation issues. The court adopted the parties' suggestion to limit the judgment to breach of duty and causation, deferring quantum and the new argument to a later stage.

Legal Issues Presented

1. Whether the Defendant breached his duty of care by failing to warn the Plaintiff of the material risk of impulse control disorder associated with dopamine agonist medication.
2. Whether the Defendant breached his duty by failing to appropriately respond to the emergence of ICD symptoms, including advising on alternative medication.
3. Whether any breach caused the Plaintiff to suffer losses, including the development of psychosis.
4. The scope of the Defendant's duty concerning the risk of psychosis (deferred to a later stage).

Arguments of the Parties

Appellant's Arguments (Plaintiff)

• The Defendant failed to warn of the risk of ICD, a material risk linked to dopamine agonist medication.
• Had proper warnings been given, the Plaintiff would have ceased medication earlier, avoiding severe side effects.
• The Defendant did not respond appropriately or timely once ICD symptoms appeared.
• The psychosis and consequent losses flowed from the Defendant's failure to warn and manage ICD.

Appellee's Arguments (Defendant)

• The treatment and advice given were reasonable based on the knowledge and information at the time.
• Warnings about ICD were not routinely given before 2013, as the condition was clinically rare and not well understood.
• Even if warnings should have been given, the Plaintiff would not have changed medication earlier.
• Reliance on the Court of Appeal decision in Khan v MNX to argue psychosis was outside the scope of duty (argument deferred).

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the timeline of diagnosis, treatment, and symptom development. It found that the Defendant did not warn the Plaintiff of the risk of ICD at the time ropinirole was prescribed in April 2010, despite evolving knowledge that by then such warnings were mandatory. The court accepted expert evidence that the risk of ICD was material under Montgomery and that the Defendant breached his duty by failing to provide that warning.

However, the court concluded that this breach before October 2011 did not cause any loss because the Plaintiff would have continued the medication until that time regardless, due to well-controlled Parkinson's symptoms and the Plaintiff's reluctance to change effective treatment.

The critical breach was found at the October 2011 consultation. The court accepted the specialist nurse's letter indicating significant ICD symptoms and the Plaintiff's distress. The Defendant should have advised switching to levodopa, which would likely have abolished ICD symptoms without worsening Parkinson's symptoms. Instead, the Defendant increased the dopamine agonist dose, which was unreasonable and breached the duty of care.

The court rejected the Defendant's justification that the ICD was not significant or that the Plaintiff was reluctant to change medication, finding that such reasoning was insufficient given the evidence presented. The Plaintiff would have accepted changing medication had she been properly advised, and this would have prevented the progression to psychosis.

The court noted the unusual involvement of the Plaintiff's husband, a neurologist, but found that this did not reduce the Defendant's duty of care. While the husband was knowledgeable and involved, the Defendant retained responsibility for clinical decisions and advice.

Regarding the development of psychosis, the court deferred the issue of whether it fell within the Defendant's duty, as raised by the Defendant relying on Khan v MNX, to a later stage. The court found the Defendant's handling of the psychosis from July 2012 onward appropriate.

The court assessed the credibility of witnesses, finding the Plaintiff and her husband less reliable due to inconsistencies and motivations, while finding the Defendant and the specialist nurse generally credible. Expert evidence was balanced, with the court favouring the specialist in movement disorders.

Holding and Implications

The court found the Defendant in breach of duty for failing to warn the Plaintiff of the risk of impulse control disorder in April 2010 and, more significantly, for failing to properly advise a change in medication in October 2011.

The breach prior to October 2011 did not cause loss, but the breach at that consultation was causative of the Plaintiff’s subsequent psychosis and losses. The Defendant's failure to recommend switching to levodopa led to the continuation of dopamine agonist medication and the worsening of symptoms.

The court acknowledged the Defendant acted in good faith and noted the difficult circumstances, including the involvement of the Plaintiff's husband and the Defendant's private, unpaid treatment.

The issue of quantum remains to be determined, as does the Defendant's argument based on the scope of duty relating to psychosis. The parties are encouraged to seek agreement on valuation and directions for final resolution. No new legal precedent was established beyond the application of existing principles.