finding of inquest...4 1. introduction 1.1. these are the findings of the court in respect of an...

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CORONERS ACT, 2003 SOUTH AUSTRALIA FINDING OF INQUEST An Inquest taken on behalf of our Sovereign Lady the Queen at Adelaide in the State of South Australia, on the 7th day of July 2016, the 8th day of August 2016, the 13th day of September 2016, the 9th day of December 2016, the 21st, 22nd and 28th days of February 2017, the 17th and 26th days of May 2017, the 17th day of August 2017, the 20th, 21st and 29th days of September 2017 the 7th, 8th, 13th, 14th, 15th, 16th, 20th, 21st, 23rd, 24th, 27th, 28th, 29th and 30th days of November 2017, the 1st, 5th, 6th, 7th, 8th and 11th days of December 2017, the 7th, 8th, 9th, 10th, 11th, 14th, 16th, 17th and 23rd days of May 2018, the 1st, 20th, 21st and 27th days of June 2018 and the 22 nd day of March 2019, by the Coroners Court of the said State, constituted of Anthony Ernest Schapel, Deputy State Coroner, into the deaths of Joanna Pinxteren, Christopher McRae, Bronte Ormond Higham and Carol Anne Bairnsfather. The said Court finds that Joanna Pinxteren aged 76 years, late of 1 Valley View Drive, Highbury, South Australia died at the Royal Adelaide Hospital, North Terrace, Adelaide, South Australia on the 23 rd day of June 2015 as a result of e-coli bacteraemia secondary to refractory acute myeloid leukaemia.

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Page 1: FINDING OF INQUEST...4 1. Introduction 1.1. These are the findings of the Court in respect of an inquest into the cause and circumstances of the deaths of four individuals. They are

CORONERS ACT, 2003

SOUTH AUSTRALIA

FINDING OF INQUEST

An Inquest taken on behalf of our Sovereign Lady the Queen at Adelaide

in the State of South Australia, on the 7th day of July 2016, the 8th day of August 2016, the

13th day of September 2016, the 9th day of December 2016, the 21st, 22nd and 28th days of

February 2017, the 17th and 26th days of May 2017, the 17th day of August 2017, the 20th,

21st and 29th days of September 2017 the 7th, 8th, 13th, 14th, 15th, 16th, 20th, 21st, 23rd,

24th, 27th, 28th, 29th and 30th days of November 2017, the 1st, 5th, 6th, 7th, 8th and 11th days

of December 2017, the 7th, 8th, 9th, 10th, 11th, 14th, 16th, 17th and 23rd days of May 2018,

the 1st, 20th, 21st and 27th days of June 2018 and the 22nd day of March 2019, by the Coroner’s

Court of the said State, constituted of Anthony Ernest Schapel, Deputy State Coroner, into the

deaths of Joanna Pinxteren, Christopher McRae, Bronte Ormond Higham and Carol Anne

Bairnsfather.

The said Court finds that Joanna Pinxteren aged 76 years, late of

1 Valley View Drive, Highbury, South Australia died at the Royal Adelaide Hospital, North

Terrace, Adelaide, South Australia on the 23rd day of June 2015 as a result of e-coli

bacteraemia secondary to refractory acute myeloid leukaemia.

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The said Court finds that Christopher McRae aged 67 years, late of

2 McArthur Street, Vale Park, South Australia died at Mary Potter Hospice, 89 Strangways

Terrace, North Adelaide, South Australia on the 22nd day of November 2015 as a result of acute

myeloid leukaemia.

The said Court finds that Bronte Ormond Higham aged 68 years, late of

Daw House Hospice, Goodwood Road, Daw Park, South Australia died at Daw Park, South

Australia on the 7th day of August 2016 as a result of acute myeloid leukaemia.

The said Court finds that Carol Anne Bairnsfather aged 70 years, late

of 18 Mayall Avenue, Kensington Gardens, South Australia died at the Royal Adelaide

Hospital, North Terrace, Adelaide, South Australia on the 17th day of February 2017 as a result

of acute myeloid leukaemia.

The said Court finds that the circumstances of their deaths were as

follows.

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Table of Contents

1. Introduction .................................................................................................................... 4

1.29. Legal representation ......................................................................................... 11

2. A brief overview of the course of treatment and of the longevity of the four

deceased persons following diagnosis ......................................................................... 12

3. Consolidation chemotherapy for AML – an overview ................................................ 14

4. The RAH AML consolidation chemotherapy protocol ............................................... 17

5. The FMC AML consolidation chemotherapy protocol ............................................... 20

6. The promulgation of the erroneous protocol at the RAH ............................................ 22

7. The promulgation of the erroneous protocol at the FMC ............................................ 33

8. The patients are administered consolidation chemotherapy pursuant to the

erroneous protocol ....................................................................................................... 66

8.6. The circumstances relating to the underdosing of Mrs Pinxteren .................... 66

8.26. The circumstances relating to the underdosing of Mr McRae ......................... 71

8.40. The circumstances relating to the underdosing of Mrs Bairnsfather ............... 74

8.50. The circumstances relating to the underdosing of Mr Higham ........................ 77

9. The error is discovered................................................................................................. 81

10. The error is acted upon at the RAH ............................................................................. 91

11. The discovery of the error at the FMC......................................................................... 97

12. The circumstances relating to the underdosing of Mr Knox ...................................... 106

13. Was Mrs Pinxteren ever advised of the error? ........................................................... 114

14. Mr McRae is advised of the error .............................................................................. 121

15. Mrs Bairnsfather is advised of the error .................................................................... 124

16. Mr Higham is advised of the error ............................................................................. 125

17. Mr Knox is advised of the error ................................................................................. 127

18. The evidence of Professor Peter Bardy ...................................................................... 130

19. The evidence of David Swan ..................................................................................... 132

20. The expert witnesses - causation................................................................................ 135

21. The evidence of Professor Boddy .............................................................................. 138

22. The evidence of Associate Professor Wei ................................................................. 149

23. The evidence of Professor John Gibson..................................................................... 159

24. The evidence of Dr Stephen Vaughan ....................................................................... 172

25. The literature .............................................................................................................. 180

25.22. Conclusions from the literature ...................................................................... 189

26. Conclusions regarding causation ............................................................................... 190

27. Recommendations ...................................................................................................... 196

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1. Introduction

1.1. These are the findings of the Court in respect of an inquest into the cause and

circumstances of the deaths of four individuals. They are as follows:

• Johanna Pinxteren aged 76 years who died on 23 June 2015

• Christopher McRae aged 67 years who died on 22 November 2015

• Bronte Ormond Higham aged 68 years who died on 7 August 2016

• Carol Anne Bairnsfather aged 70 years who died on 17 February 2017

1.2. The cause of Mrs Pinxteren’s death was e-coli bacteraemia secondary to refractory

acute myeloid leukaemia (AML). She was originally diagnosed with AML in

November 2014 at the age of 75. She was treated at the Royal Adelaide Hospital (the

RAH).

1.3. The cause of Mr McRae’s death was AML. He was originally diagnosed with AML in

May 2014 at the age of 66. He was treated at the RAH.

1.4. The cause of Mr Higham’s death was AML. He was originally diagnosed with AML

in November 2014 at the age of 66. He was treated at the Flinders Medical Centre (the

FMC).

1.5. The cause of Mrs Bairnsfather’s death was AML. She was originally diagnosed with

AML in October 2014 at the age of 68. She was treated at the RAH.

1.6. All four deceased persons died of or from the complications of AML.

1.7. All four deceased persons had been accurately diagnosed as suffering from AML. An

individual patient’s prognosis following diagnosis may be affected by a number of

factors, the presence or absence of which are known to potentially affect treatment

outcomes. I shall describe those factors in the course of these findings. It should be

understood that left untreated, AML will cause the death of the afflicted person usually

within a matter of months.

1.8. Following diagnosis all four deceased persons were treated by way of chemotherapy.

In the first instance the chemotherapy in respect of each patient was delivered by way

of what is known as induction therapy. In each instance complete remission was

induced in the patient. Following the achievement of complete remission all four

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persons underwent consolidation chemotherapy, otherwise known as post-remission

therapy, the purpose of which I shall briefly explain in a moment.

1.9. The duration of remission in each instance varied, but in due course all four patients

experienced a relapse of AML and then underwent varying regimes of further treatment.

Ultimately, however, they succumbed to the disease.

1.10. There is no suggestion other than that each of the four deceased persons had received

induction therapy that was in correct accordance with chemotherapy protocols as they

existed at the time of their treatment.

1.11. It should be borne in mind throughout that there is nothing extraordinary about a relapse

following appropriate chemotherapy. The fact of relapse will not of itself bring into

question the quality and nature of the chemotherapy that was delivered as part of a

patient’s treatment.

1.12. However, there is no doubt that early relapse can carry serious implications in terms of

the patient’s life expectancy from that point forward. Professor John Gibson who is an

independent expert in the field of haematology gave evidence which I accept that an

early relapse is an unfavourable circumstance and that even if a person attains a second

remission, the second remission will generally be less robust and of shorter duration

than the first. Thus the ideal treatment outcome is a long first remission1.

1.13. I now turn to the issue of consolidation chemotherapy. It was explained to the Court

that even with complete remission of AML, a majority of patients who receive no

further treatment will subsequently relapse due to residual disease which cannot be

detected within the body. However, in order to reduce the likelihood of relapse

occurring, consolidation chemotherapy is offered to the AML patient and is

administered as soon as possible after the achievement of complete remission.

Consolidation therapy can be and is offered to both the young and the elderly.

1.14. The evidence before the Court is that the idea underlying consolidation is to

‘consolidate’ remission by way of the administration of further cycles of chemotherapy,

the purpose being to gradually eradicate the leukaemic cells in the body or to diminish

the number of cells to a level that the body’s own immune system can control and,

perhaps, to provide a cure for the patient. In essence the purpose of consolidation is to

1 Transcript, page 268

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reduce residual disease, to reduce the likelihood of relapse, to prolong remission and

possibly to effect a cure.

1.15. There are a number of differing consolidation therapy protocols that dictate the nature

of the chemotherapy administration regime in an individual patient. The evidence is

that the consolidation therapy pertaining to the four deceased persons is usually

administered in two separate cycles of chemotherapy. The regimen in question

consisted of the administration of chemotherapy over five days. The drug cytarabine,

otherwise described as ‘Ara-C’, was administered on the first, third and fifth days. The

drug idarubicin was administered on the first and second of those days. Both drugs

were administered intravenously (IV) over a number of hours.

1.16. The four deceased persons underwent consolidation therapy after the achievement of

complete remission in each case. There was some doubt expressed during the inquest

as to whether Mr McRae achieved complete remission, but in my view the evidence

demonstrated that he did and I so find. Mr McRae and Mr Higham underwent two

cycles of consolidation therapy. Mrs Pinxteren underwent one cycle of consolidation

therapy. She did not recover well or quickly after this cycle. She relapsed before a

second cycle could be administered. Mrs Bairnsfather underwent one cycle of

consolidation therapy. Mrs Bairnsfather experienced poor bone marrow recovery

following her one cycle of consolidation. As well, following that one cycle it was

thought that she had reverted to an underlying myelodysplastic syndrome and a

differing regime of treatment was undertaken instead of a second cycle.

1.17. The consolidation therapy in the case of each deceased person miscarried because it

was undertaken not in accordance with the consolidation therapy protocol that had been

determined to be appropriate for those persons. What happened was that the first cycle

of consolidation therapy in each case involved the provision of once daily

administrations of cytarabine over the three alternate days when the intended protocol

called for administration twice daily over three alternate days. The miscarriage of

treatment was the result of an error that was contained within the written protocol

pertaining to the consolidation treatment for these patients. The error was due to the

inclusion of the word ‘ONCE’ instead of the word ‘twice’, or the expression ‘bd’ which

is well understood medical terminology indicating twice daily administration. It had

been intended that the protocol should specify twice daily administration. The

circumstances in which this error occurred were the subject of detailed inquiry during

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the course of the inquest. The evidence is that the error originated within the

Haematology Department at the RAH and was replicated at the FMC which had

adopted the erroneous RAH protocol. The error was the result of woefully inept clinical

governance at both hospitals.

1.18. Each of the single cycles of consolidation therapy administered to Mrs Pinxteren and

Mrs Bairnsfather respectively at the RAH were delivered in accordance with the

erroneous protocol.

1.19. Both cycles of the two consolidation therapies each administered to Mr McRae at the

RAH and to Mr Higham at the FMC were delivered in accordance with the erroneous

protocol.

1.20. The four deceased individuals were not the only persons who received consolidation

chemotherapy for AML that was not in accordance with the correct protocol for

administration. Six other patients also underwent consolidation chemotherapy that was

delivered pursuant to the terms of the erroneously worded protocol. Two of those

additional patients underwent their treatment at the RAH. Four of them underwent their

treatment at the FMC. In all a total of ten patients, five patients in each of the two

hospitals, were the subject of the incorrect administration of consolidation

chemotherapy for AML pursuant to the same erroneous protocol. As indicated, this

inquest relates to the deaths of four affected persons. The Court has also examined in

detail the circumstances surrounding the treatment of one of the surviving persons

affected by the protocol error. That person is Mr Andrew Knox. Mr Knox was treated

at the FMC. He underwent successful induction chemotherapy as well as two cycles of

the erroneous consolidation chemotherapy. Ultimately Mr Knox also relapsed but has

since undergone further treatment. The evidence as to the details of his matter was the

subject of objection on the grounds that the evidence was not relevant in any

consideration of the cause and circumstances of the deaths of the four individuals or

any of them. The objection was taken by the legal representatives of a number of

medical practitioners (hereinafter referred to as ‘the doctors’) who had various

involvements in the promulgation of the chemotherapy error or with the treatment of

the affected patients. I overruled that objection and admitted detailed evidence in

relation to the circumstances surrounding the treatment of Mr Knox. I delivered written

reasons for that decision. The relevance of the evidence relating to Mr Knox’s

treatment will become readily apparent. It has also been necessary to refer to certain

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facets of the treatment of four of the other individuals. It is not necessary to refer to all

of those individuals by their full names. They are a Mr G who was treated at the RAH,

a Ms MR who was also treated at the RAH, a Ms Mc who was treated at the FMC and

Ms Jennifer Crannage who was treated at the FMC. Ms Crannage was represented by

counsel at the inquest.

1.21. The evidence is that the protocol error was discovered and recognised as such at the

RAH no later than Monday 19 January 2015. I say no later than 19 January because

there is no doubt that on that day the error in the actual protocol document was

recognised. However, the error was discovered as the result of the identification of a

prescription discrepancy on Friday 16 January. The discrepancy was discovered within

the prescription for consolidation chemotherapy for the patient Ms MR at the RAH. It

was identified by an RAH pharmacist when he noticed that one doctor had prescribed

once daily therapy but another more senior doctor, correctly, had prescribed twice daily.

In my opinion there is no question but that the discrepancy could and should have led

to the protocol error being identified on the Friday. Moreover, the error should also

have been communicated to the FMC on the same day. The error would not be

recognised at the FMC until the end of January 2015. If the error had been identified

at both hospitals on Friday 16 January 2015, there is a case for concluding that the

underdosing of Mrs Pinxteren in respect of her third alternate daily administration of

therapy on Saturday 17 January at the RAH probably would have been avoided.

1.22. Similarly there is a case for concluding that if adequate procedures had been in place

for the reporting of adverse incidents across the entire South Australian public health

system, the underdosing of Mr Higham on the afternoon of 16 January and on

18 January 2015, during his second cycle of consolidation therapy, probably would

have been avoided.

1.23. I have already referred to a surviving patient, Mr Andrew Knox, who had been treated

at the FMC. The circumstances surrounding the treatment of Mr Knox are unique in

that Mr Knox was the only patient who was treated in accordance with the erroneous

protocol at a time after the error had positively been identified at the RAH on 19 January

2015. Had the error also been recognised at the FMC on the same day, the underdosing

that occurred in his second cycle of consolidation therapy would have been avoided

altogether.

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1.24. In the course of these findings I will deal with the manner in which the protocol error

was promulgated and also with the issue as to the circumstances in which the error was

discovered and was sought to be rectified at both the RAH and the FMC.

1.25. This inquest investigated a number of matters connected with the cause and

circumstances of the death of the four individuals including the following:

• The nature of the disease of AML and its usual course of treatment, particularly as

it related to elderly patients.

• The courses of treatment of the four deceased patients and to Mr Knox.

• The circumstances in which the protocol error was promulgated within the RAH

protocol.

• The circumstances in which the protocol error was promulgated within the FMC

protocol.

• The circumstances in which the erroneous consolidation therapy came to be

administered to the four deceased patients and to Mr Knox.

• The discovery of the error at the RAH and the timeliness of the error being rectified

at that hospital.

• The discovery of the error at the FMC and the timeliness of the error being rectified

at that hospital.

• Whether more timely rectification of the error at each hospital had any

consequences for any of the deceased patients or Mr Knox.

• Whether the quality of clinical governance at either hospital or across the South

Australian public health system impacted on the promulgation of the error and/or

on its failure to be discovered and rectified in a timely manner.

• The manner of and timeliness of the communication of the erroneous treatment to

the affected patients and to their general practitioners.

• Whether the erroneous treatment that was administered pursuant to the erroneous

protocol contributed to the deaths of the four deceased patients.

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1.26. It will be seen therefore that this inquest was principally concerned with the cause of

the deaths of the four deceased patients, and in particular whether any error in treatment

contributed to their deaths, or at least contributed to outcomes that were more adverse

than what they would have been if a treatment error had not occurred. The Court also

of course examined the circumstances surrounding their deaths, and in particular how

it was that erroneous chemotherapy treatment was provided to them. The Court was

unable to deal in a fulsome manner with broader issues such as the fine detail of adverse

incident reporting systems and that of open disclosure policies and manners of

implementation. I have dealt in these findings with some aspects of those topics, but to

a limited degree only. In this regard I am aware of the fact that prior to the holding of

this inquest other independent inquiries had been conducted including a review

conducted by a panel headed by Professor Villis Marshall AC. As well, I am aware of

a review conducted by a panel headed by Mr Kieran Pehm, former Health Care

Complaints Commissioner New South Wales, under the auspices of the Australian

Commission on Safety and Quality in Healthcare. As a result of both inquiries certain

recommendations including those relating to matters including adverse event reporting

and open disclosure were made. I should add that unlike the public inquiry that this

Court has conducted, the reports of the inquiries to which I have referred for the most

part de-identify the relevant participants in the affair except by reference to their

occupations and positions within the institutions to which this inquest relates.

1.27. I add that the findings of fact that I have made have been made solely on the evidence

that has been presented in this inquest.

1.28. There is one further general matter that I should mention. Having regard to the

importance and public notoriety of this matter and of the issues that I have identified in

the preceding paragraphs, in my view this matter should have been the subject of a

commission of inquiry pursuant to the Royal Commissions Act 1917. Such a

commission of inquiry would have had the ability to thoroughly inquire into not only

the causes and circumstances of the deaths of the four individuals with which this

inquest is concerned, but also into the circumstances surrounding the underdosing of

all of the six other individuals who were treated both at the RAH and the FMC. With

appropriately crafted terms of reference, such a commission of inquiry would not have

been distracted, as this inquest was, by unnecessary and time consuming argument

about the Court’s jurisdiction and arguments about, for instance, the relevance of the

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circumstances surrounding the treatment of Mr Andrew Knox, all of which arguments

I carefully considered and ultimately dismissed with detailed written reasons. It goes

without saying that a commission of inquiry would have been furnished with greater

resources than this Court could possibly muster. When considering the resources that

this Court can bring to a matter of this complexity it has to be remembered that the

Court and its officers including counsel assisting the Court are required to perform other

duties quite apart from the duties that were occasioned by this inquest. I should add

that it is remarkable that counsel assisting the coroner, Ms Naomi Kereru, without the

assistance of other counsel assisting or without the benefit of an instructing solicitor,

was able to conduct this inquest with the conspicuous competence with which she

conducted it when all the while she was concurrently burdened with her duties as

counsel assisting the coroner in other complex coronial matters. I place on record my

indebtedness both to Ms Kereru and to the lay staff of the office of the State Coroner

who assisted her in the conduct of this matter.

1.29. Legal representation

• In the inquest Ms Naomi Kereru was counsel assisting the Coroner.

• Mr Mark Griffin QC was counsel for the following:

• Mr William Pinxteren who was the husband of Mrs Pinxteren;

• Mrs Ricki Higham who was the wife of Mr Higham;

• Ms Rebecca Emery who was the daughter of Mr McRae;

• Mr Andrew Knox;

• Ms Jennifer Crannage.

• Mr Darrell Trim QC and Mr Tom Besanko were counsel for the following (the

doctors):

• Associate Professor Ian Lewis;

• Associate Professor Briony Kuss;

• Dr Douglas Coghlan;

• Associate Professor Agnes Yong;

• Dr Devendra Hiwase;

• Dr David Ross.

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• Mr Ralph Bonig was counsel for the following:

• Mr Russell Baldock;

• Mr Abhi Phatak;

• Ms Kirsty Scarborough;

• Associate Professor Peter Bardy;

• Ms Kailin Teh;

• Dr Naranie Shanmuganathan.

• Ms Joanne Cliff was counsel for the following:

• Dr Ashanka Beligaswatte;

• Professor Alex Gallus.

• Mr Michael Tilley was counsel for the following:

• Mrs Che To;

• Professor Luen Bik To.

• Mr Todd Golding was counsel for the following:

• The Minister for Health;

• The Chief Executive of SA Health, Mr David Swan.

I express my gratitude for the assistance provided by all counsel and those instructing

them.

2. A brief overview of the course of treatment and of the longevity of the four

deceased persons following diagnosis

2.1. I have found that all four deceased persons have died of or from the complications of

AML.

2.2. All four deceased persons were above the age of 65 years at the time of their respective

diagnoses. Mr Knox was 65 years and 11 months at the time of his diagnosis.

2.3. All four deceased persons achieved complete morphological remission following

induction chemotherapy. They all underwent consolidation chemotherapy. In due

course all four persons relapsed and ultimately died.

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2.4. Mrs Pinxteren was diagnosed on 19 November 2014. Complete remission following

induction chemotherapy was confirmed on 31 December 2014. Mrs Pinxteren’s date

of relapse was 2 March 2015. Mrs Pinxteren died on 23 June 2015. Mrs Pinxteren’s

duration of complete remission was approximately 62 days. Mrs Pinxteren’s duration

of survival from diagnosis was approximately seven months and four days.

2.5. Mr McRae was diagnosed on 13 May 2014. Complete remission following induction

chemotherapy was confirmed on 9 July 2014. Mr McRae’s date of relapse was

confirmed by way of a bone marrow biopsy on 10 March 2015. Mr McRae died on 22

November 2015. Mr McRae’s duration of complete remission was eight months.

Mr McRae’s duration of survival from diagnosis was approximately 18 months and

nine days.

2.6. Mr Higham was diagnosed on 7 November 2014. Complete remission following

induction chemotherapy was confirmed on 4 December 2014. Mr Higham’s date of

relapse was 18 April 2016. Mr Higham died on 7 August 2016. Mr Higham’s duration

of complete remission was approximately 16 months and 14 days. Mr Higham’s

duration of survival from diagnosis was approximately 21 months.

2.7. Mrs Bairnsfather was diagnosed between 15 and 17 October 2014. Complete remission

following induction chemotherapy was confirmed on 14 November 2014. Bone

marrow examinations in January and February 2015 suggested that Mrs Bairnsfather

was no longer in remission. However, a further conclusion was reached based on a

bone marrow result later in February that she had not relapsed but that she may have

reverted to pre-existing myelodysplasia which had led to her leukaemia in the first

place. Ultimately it was confirmed that Mrs Bairnsfather had relapsed as of 28

September 2016. Mrs Bairnsfather died on 17 February 2017. Mrs Bairnsfather’s

duration of complete remission was approximately 22 months and 14 days.

Mrs Bairnsfather’s duration of survival from diagnosis was approximately two years

and four months.

2.8. In relation to Mr Andrew Knox who has survived, Mr Knox was diagnosed on

26 November 2014. He achieved a complete remission following induction treatment

on 22 December 2014. Mr Knox’s relapse was confirmed by bone marrow biopsy on

15 December 2016. Mr Knox’s duration of complete remission was approximately 23

months and 23 days.

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2.9. It will be seen that the remission durations and survival durations of the four deceased

persons varied. Mr Knox, while having relapsed following a period of complete

remission, has survived.

3. Consolidation chemotherapy for AML – an overview

3.1. It was universally accepted within the evidence taken before the Court that an untreated

individual who is diagnosed with AML would survive for approximately two months.

It is therefore obvious that all four deceased persons and Mr Knox positively responded

to cytarabine induction chemotherapy insofar as it resulted in a complete morphological

remission in each case and a period of survival beyond that period of two months. This

is so despite what in some cases were adverse prognostic features that I will discuss. I

have already alluded to the fact that in each of the five cases to which these findings

relate induction chemotherapy was administered in accordance with the correct

induction protocol. There is no suggestion that the induction treatment of any of these

five patients in any way miscarried.

3.2. An individual AML patient’s prognosis may be affected by a number of factors. These

include the age and performance status of the patient at the time of diagnosis, the

presence or otherwise of predisposing myelodysplasia, medical and psychological

comorbidities, the presence of significant extramedullary disease and cytogenetic risk.

There is also the influence of molecular factors such as mutations which have a bearing

on the treatment outcome of a patient. This particular factor might be viewed on the

one hand as a prognostic factor, or on the other as a factor that might render

chemotherapy treatment less effective in the case of a particular patient. It is

worthwhile observing at this point that Mr Knox had a number of factors that operated

in his favour. They included the fact that he was of a slightly lesser age than the other

patients; he was approaching his 66th birthday at the time of diagnosis. As well, he did

not have predisposing myelodysplasia. His cytogenetic factors were favourable as were

his molecular factors. Mr Knox had no comorbidities other than a known history of

raised blood pressure which does not appear to have had any influence on his treatment

or prognosis. The evidence satisfied me that at diagnosis Mr Knox in particular had a

reasonable expectation of a favourable outcome and a long remission, and possibly even

a cure of his disease. Nevertheless, as indicated, Mr Knox ultimately relapsed after a

period that was just short of two years remission. In the period of time since his relapse

Mr Knox has undergone transplant therapy in Victoria. As will be seen, Mr Knox

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underwent two flawed cycles of consolidation chemotherapy, the circumstances

surrounding the second cycle being especially egregious.

3.3. Having undergone induction therapy in each instance, and having achieved complete

morphological remission in each case, the four deceased persons and Mr Knox

underwent consolidation chemotherapy. Consolidation chemotherapy is administered

to the patient as soon as possible after the achievement of complete remission. The

evidence suggested that an ideal timeframe for the commencement of consolidation

chemotherapy would be four weeks since the beginning of induction therapy. However,

the timing of the commencement of consolidation chemotherapy will depend upon the

degree of a patient’s recovery from the effects of induction chemotherapy, and in

particular the recovery of red blood cell, white blood cell and platelet counts,

recognising of course that chemotherapy has a toxic and destructive effect not only on

leukaemic cells, but also on normal cells. Mrs Pinxteren did not recover well from her

single cycle of consolidation as will be seen.

3.4. The duration and frequency of administration of consolidation chemotherapy, and its

dosage, is designed to strike a balance between efficacy and its anti-leukaemic effect

on the one hand, and on the other the toxicity that the treatment presents to the patient.

The strategy is to subject the body to the maximum possible exposure to the active

chemotherapy drug but balancing the need to limit the toxic effects of the drug upon

the individual. A body of evidence suggested that a once daily administration of

cytarabine chemotherapy on alternate days would not provide the ideal exposure of

leukaemic cells to the drug. In this sense, the drug was said to be ‘schedule- dependent’.

It is a drug the efficacy of which is dependent on matters such as the frequency at which

it is administered and on the duration between administrations.

3.5. As seen earlier, Mr McRae and Mr Higham underwent two cycles of consolidation

chemotherapy. Mrs Pinxteren underwent one cycle of consolidation chemotherapy.

Mrs Bairnsfather underwent one cycle of consolidation chemotherapy. For reasons I

will mention in due course, a differing regime of treatment was undertaken instead of a

second cycle in her case. Mr Knox whose original induction therapy had also induced

complete remission, underwent two cycles of consolidation chemotherapy during the

course of his remission.

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3.6. Throughout the evidence, and in particular the expert evidence that was adduced in this

inquest, differing regimens of consolidation chemotherapy for AML were described. I

heard much oral expert evidence about this. The issue is also referred to in the

voluminous amount of medical literature that was tendered to the Court. It was

common ground during the course of the inquest that consolidation therapy might well

be administered once daily. However, when this occurs it is administered daily over a

number of consecutive days, possibly five or six, not on alternate days as was the case

here. There is no question but that the protocol that should have been followed in

respect of each of these patients is a well-recognised protocol for the administration of

consolidation chemotherapy. I was satisfied that the correct protocol had a sound

scientific basis. I was not satisfied that the incorrect protocol had such a basis.

3.7. The one matter that the expert evidence in this inquest clearly did demonstrate was that

a protocol in which cytarabine is administered once daily for a period of three hours on

alternate days 1-3-5 was not known to chemotherapy medicine. Any suggestion that

there could have been sound clinical grounds for administering the consolidation

therapy in the manner in which it was administered to these patients must be rejected.

And it is worthwhile noting that, subject possibly to one aspect within the treatment of

Mrs Pinxteren that I will expand on in due course, the once daily administration of

cytarabine on three alternate days was not prescribed on clinical grounds. It was not

due to any conscious clinical decision to deviate from the norm by administering once

daily and not twice daily therapy. As will be seen, the deviation occurred simply due

to the fact that the prescribing clinicians mechanically followed the incorrectly worded

protocol. Put simply, the protocols at both hospitals were wrong and the patients’

treatments were wrong.

3.8. The evidence satisfied me that such a regime of treatment would be wrong in scientific

and medical principle and in general terms would be less efficacious than protocols that

included the administration of cytarabine twice daily on alternative days, or once daily

on consecutive days. However, the evidence did raise a question as to whether or not,

due to a number of factors that were discussed in the course of the expert evidence,

consolidation chemotherapy will be as effective in the elderly as it is in younger

persons. An associated question is whether or not there is an identifiable minimal

dosage regime that is effective in the elderly.

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4. The RAH AML consolidation chemotherapy protocol

4.1. The various chemotherapy treatment regimens for AML that were utilised at the RAH

were contained within a database maintained by SA Pathology. In fact, the consultant

haematologists employed both at the RAH and at the FMC were employees of SA

Pathology. The haematologists had computerised access to the protocols.

4.2. Tendered in evidence was the RAH protocol for AML chemotherapy that had been in

existence prior to the promulgation of the erroneous protocol in July 20142. This

protocol was dated 17 May 2012. It purports to have been authorised by Associate

Professor Ian Lewis who was the senior haematologist at the RAH at all material times.

This protocol, insofar as it provided for consolidation chemotherapy, was age based. In

the case of patients up to 65 years of age the protocol called for the administration of

3gm of cytarabine per square metre of body surface area to be administered

intravenously twice daily on days 1, 3 and 5. Patients between the ages of 66 and 70

years were administered 2gm of cytarabine per square metre at the same frequency of

delivery. Patients over 70 years were administered with cytarabine at 1.5gm per square

metre to be administered once a day on six consecutive days. It will be noted that each

of these three age based regimens called for six individual doses of cytarabine.

Importantly, there was no consolidation regime that called for the administration of

cytarabine once daily on days 1, 3 and 5 which naturally would involve three doses

only. The administration of idarubicin was not part of any of these age based regimens.

4.3. Against that background, it is necessary to explain how and why the amended AML

consolidation chemotherapy protocol came into existence in 2014. Evidence was

provided to the Court about the activities of the Australasian Leukaemia and

Lymphoma Group (ALLG). Associate Professor Wei who is the Head of Human

Molecular Pathology at the Alfred Hospital in Melbourne gave evidence about these

activities and how they resulted in suggested modifications to existing consolidation

chemotherapy regimens for AML. Associate Professor Wei told the Court that he was

in charge of the acute leukaemia practices within his hospital and that his duties include

the determination of treatments that should be used. He also operated the clinical trial

program at the Alfred Hospital. He also practices in the field of acute leukaemia

treatment with a heavy focus on patients with AML. Associate Professor Wei explained

2 The original protocol is Exhibit C9b

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that as half of the patient population fell into the age category of 60 years and over, a

large part of his practice was directed towards the treatment of patients with AML who

were ‘older than the age of 60-65’3.

4.4. Associate Professor Wei explained that it had been identified in the early part of this

decade that patients over the age of 50 experienced a much higher toxicity from high

dose cytarabine, that is to say delivery of 3gm per square metre twice per day. Among

other considerations was a recognised desire to include idarubicin in consolidation

chemotherapy. In addition, some consolidation regimens involved differing high dose

cytarabine administration such as the 3gm and 2gm twice per day regimens. Associate

Professor Wei also explained that a new trial for the introduction of a maintenance

chemotherapy regime following consolidation therapy had been contemplated. This

trial was referred to as the M15 study. The maintenance therapy would involve the

repeated administration of oral lenalidomide. Associate Professor Wei explained that

the lenalidomide maintenance therapy was thought to have involved an augmentation

of the immune system to help eradicate residual leukaemia after the completion of

chemotherapy. To this end patients would be invited to participate in the lenalidomide

trial for 12 months in order to determine if this would further augment the existing

chemotherapy outcome. Participation in the trial would be provided to patients between

the ages of 18 to 65. Patients over the age of 65 would not be included in the trial

because according to Associate Professor Wei it was well known that outcomes for

patients above the age of 65 were substantially worse than in younger patients, meaning

that it would be very difficult to establish the benefit of maintenance therapy in a cohort

of older patients. Nevertheless, it was considered that for the sake of uniformity

patients over the age of 65 would also receive the same new consolidation therapy4.

4.5. In order to set up the trial it was considered desirable that consolidation therapy practice

for AML should be uniform. The heterogeneity in consolidation practices was

problematic. One can readily understand that trial results would have limited utility if

the therapy leading up to the trial had not been standard.

4.6. Another consideration that was taken into account in altering the consolidation regimes

was emerging literature to the effect that a dose of cytarabine above 1gm per square

3 Transcript, page 2765 4 Transcript, page 2772

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metre was unlikely to be beneficial and that dosages in excess of that were only serving

to increase toxicity in the patient.

4.7. A group of experts from around Australia conferred in teleconferences and workshops

and ultimately a consensus was reached as to the most appropriate treatment to be used

for older patients. It was agreed that in line with international practice, two cycles of

consolidation chemotherapy involving an intermediate dose of cytarabine at 1gm per

square metre twice a day on days 1, 3 and 5 would be optimal and would be standard

for patients of or above the age of 56 who were not patients with core binding factor

(CBF) AML 5. This therapy would be combined with the administration of idarubicin

on days 1 and 2 of this five day cycle. None of the five patients with which this inquest

is concerned were CBF patients. Thus, this new chemotherapy regime, that would

become known as HiDAC 2 – Ida, was the regime that would have been administered

to the affected patients but for the error.

4.8. Associate Professor Ian Lewis of the RAH gave evidence in respect of the introduction

of the revised protocol at that hospital. Associate Professor Lewis explained that each

individual teaching hospital in South Australia was autonomous in respect of the

manner in which clinical services were delivered. This meant, for instance, that the

FMC decided on the content of chemotherapy protocols independently of the RAH.

The same applied in respect of The Queen Elizabeth Hospital which used chemotherapy

protocols promulgated by an entity known as EviQ. I add here that the erroneous

protocol was not adopted at The Queen Elizabeth Hospital because they followed the

EviQ chemotherapy regimens which did not contain an error.

4.9. Associate Professor Lewis explained that when a protocol change had been

recommended or a new investigation had become available, protocol issues at the RAH

would be discussed at multidisciplinary team meetings. Associate Professor Lewis was

the lead haematologist for the RAH acute leukaemia team as well as for the bone

marrow transplant team. He was member of the ALLG as of 2014. Indeed, Associate

Professor Lewis was the Chair of the Bone Marrow Transplant Group at ALLG and in

2014 was elected as the Deputy Chair of the Scientific Advisory Committee. He was

5 CBF AML is a reference to the disease accompanied by what is termed the core binding factor. It is generally regarded as a

favourable prognostic factor. None of the patients who were the subject of this inquest, nor Mr Knox, had core binding factor AML.

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not a member of the distinct sub-group within ALLG for AML, although he attended

their meetings.

4.10. Naturally Associate Professor Lewis became aware of the pilot study to explore the

efficacy of lenalidomide in maintenance therapy for AML sufferers.

4.11. In another section of these findings I will discuss the circumstances in which the

amended and ultimately erroneously worded protocol came into existence at the RAH.

5. The FMC AML consolidation chemotherapy protocol

5.1. Although the haematologists at both the RAH and the FMC were employees of SA

Pathology which maintained the chemotherapy protocols database, the FMC had

autonomy from the RAH in terms of protocol maintenance and content. This

circumstance is odd in that a patient’s consolidation chemotherapy for AML might vary

depending upon the hospital at which it was administered, even though the medical

practitioners administering it were employed by the same government entity, namely

SA Pathology. Nevertheless, that was the position in 2014.

5.2. Unlike the SA Pathology maintained protocols, the FMC maintained its protocols on

chemotherapy templates that were created and maintained by the FMC haematology

pharmacists, although the content of the templates was dictated by medical

practitioners. As at July 2014 at the FMC there were a number of AML consolidation

chemotherapy templates including templates for high dose cytarabine administration

twice daily on days 1, 3 and 5.

5.3. A chemotherapy template not only housed the relevant protocol but it also operated as

a proforma computerised document that could be completed depending upon an

individual patient’s consolidation chemotherapy needs. The resulting completed

document, that is to say completed on the computerised template, would serve as the

patient’s prescription for consolidation chemotherapy.

5.4. The nature of this documentation, how an individual template was created and how in

turn an individual patient’s prescription was created was explained in the course of the

evidence by Ms Kailin Teh who was a pharmacist within the Haematology Department

at the FMC. Ms Teh had worked fulltime as a clinical pharmacist within that

Department since March 2014. Ms Teh explained to the Court that she had an

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occasional responsibility in relation to the creation of protocols and in particular she

had a role in relation to the checking of protocols that had been promulgated by medical

staff. In 2014 the chemotherapy protocol templates were maintained on the

haematology server that was peculiar to the FMC. Although she had access to the RAH

created protocols via the SA Pathology website, the FMC used its own templates as

already described. In respect of the creation of new templates, Ms Teh explained that

this would be based on the contents of a reference document that was provided by the

requesting medical practitioner. This information would be populated on an Excel

spreadsheet and would be sent back to the requesting doctor for checking of content

accuracy. If accurate it was then saved on the server and would then act as the basis

for patient prescriptions.

5.5. As an aside at this point, I understood from the evidence as a whole that this system is

akin if not identical to a system that has for some years been advocated as a fail-safe

prescription system that should be adopted across the board in this State, namely a so-

called electronic prescription system. Ms Teh made it plain, as did another witness,

Professor Peter Bardy who was the Clinical Director of Cancer Services at the RAH,

that the accuracy of electronic prescriptions is only as good as the accuracy of the

templates that they are based upon, which in turn is only as good as the information that

was originally provided when the template was created. Thus the fact that the

prescription may be electronically generated is of itself no guarantee of accuracy of the

patient’s chemotherapy regimen. In this regard, the scientific adage ‘garbage in,

garbage out’ readily springs to mind. As we will see, what happened here classically

illustrates the point.

5.6. In the course of the oral evidence given by Associate Professor Bryone Kuss who is the

Head of the Haematology Department at FMC, and therefore Associate Professor

Lewis’ RAH counterpart, she produced a series of AML consolidation chemotherapy

templates that had been in use prior to July 20146. Two such templates, namely

HiDAC2 and HiDAC3, called for twice daily administration of cytarabine on days 1, 3

and 5. The respective therapies called for high doses of 2,000mg and 3,000mg per

square metre of body surface area. There was no existing regimen that involved once

daily cytarabine administration on alternate days. The new protocol was designed

among other things to reduce the dosage of cytarabine with the addition of idarubicin,

6 Exhibit C50, pages 13-17

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but maintaining the twice daily administration of cytarabine. As will be seen, when

in July 2014 the FMC altered its consolidation chemotherapy template to align with

what the RAH was doing at that time, the requirement for twice daily administration

was erroneously not included.

5.7. In another section of these findings I will discuss the circumstances in which the new

and erroneous consolidation chemotherapy protocol that had been created at the RAH

was adopted at the FMC.

6. The promulgation of the erroneous protocol at the RAH

6.1. I have already referred to Associate Professor Ian Lewis. In 2008 Associate Professor

Lewis was appointed Head of the Clinical Haematology Unit at the RAH. Shortly after

that appointment SA Pathology was created. This became the entity that had

overarching responsibility for government pathology services in South Australia. It

also employed the haematologists at both the RAH and the FMC. In 2014 Associate

Professor Lewis was appointed Clinical Director of the Haematology Directorate of SA

Pathology. This position was based at the RAH. SA Pathology had the delivery of

laboratory haematology services as one of its principal responsibilities. In terms of the

provision of those clinical services those responsibilities devolved to individual

hospitals in South Australia. Each hospital had its own Head of Haematology to

oversee the provision of clinical services. In the case of the RAH that person was

Associate Professor Lewis. Professor Luen Bik To was appointed Clinical Director. In

2014 there were approximately nine full time haematology consultancy positions

distributed over a group of thirteen such haematologists. There were a number of

registrars. There were two haematology teams, the dichotomy being based on whether

or not a patient would undergo bone marrow transplantation. All of the consultants had

specific interests within haematology, including of course in AML. Associate Professor

Lewis was the lead haematologist for the acute leukaemia team as well as the bone

marrow transplant team. As I understood the evidence bone marrow transplantation

was not available at the FMC.

6.2. In his oral evidence Associate Professor Lewis told the Court that he presented the

ALLG M15 study to the RAH haematologists to determine its level of interest and

whether it was thought appropriate that the RAH should participate in the study.

Associate Professor Lewis’ presentation occurred in September 2011 and was based on

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an ALLG pilot study of June of that year. A decision was made at the RAH to proceed

with the study. Associate Professor Lewis explained that the study needed to be

submitted to the RAH Ethics Committee which involved submitting a number of

documents including the trial protocol and other documentation. Ultimately the Ethics

Committee approved the study. Associate Professor Lewis told the Court that informal

discussions among clinicians at the RAH who were also members of the ALLG took

place. These discussions occurred within the monthly RAH AML multidisciplinary

team meetings in which patient cases were discussed and protocols were canvassed in

an ‘ad-hoc informal manner’7. The proposition that high dose cytarabine was not

adding any benefit over and above intermediate dose cytarabine was well accepted at

these meetings. The high dose of 3gm per square metre did not appear to provide any

extra anti-leukaemia efficacy but was associated with increased toxicity. Following

these informal discussions Associate Professor Lewis set about implementing the

appropriate protocol changes.

6.3. In his evidence Associate Professor Lewis identified the protocol8 that was in force

between 2012 and 2014 prior to its alteration. I have already explained the nature of

the pre-existing RAH protocol and the manner in which it was maintained.

6.4. Mrs Che To is a registered nurse who had worked in intensive care and in haematology

at the RAH. At all material times she was a project officer which was principally an

administrative position within the hospital. As part of her responsibilities she would

receive protocols from the doctors and would format them, amend them as required and

upload them onto the SA Pathology system. Mrs To is the wife of Professor Luen Bik

To, the Clinical Director of Haematology at the RAH.

6.5. On Saturday 12 July 2014 Associate Professor Lewis sent an email to Mrs To

concerning the need for the AML protocol to be altered9. In his email Associate

Professor Lewis described the changes as ‘reasonably significant’. The email makes

reference to the fact that Associate Professor Lewis had made manuscript changes on a

copy of the existing protocol and would leave that document with his secretary.

Attached to the email was the ALLG summary of AML induction and consolidation

7 Transcript, page 1881 8 Exhibit C9b 9 Exhibit C49, page 143

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regimens, adding ‘hopefully our protocols will be aligned’. The attached

documentation10 set out in a clear format that for AML consolidation chemotherapy in

non-CBF patients over 55 years the regimen would involve the administration of

cytarabine at 1,000mg per square metre of body surface area ‘BD', meaning twice a

day, on days 1, 3 and 5. As well, idarubicin would be administered on days 1 and 2.

6.6. Associate Professor Lewis did not keep a copy of his handwritten changes as set out on

a printed copy of the existing protocol. Nevertheless I was satisfied that it had been

Associate Professor Lewis’ clear intention that the reconstituted non-CBF AML

consolidation protocol would make a reference to the need for cytarabine to be

administered twice daily. I would add here that as seen earlier the existing 2012

consolidation regimens already provided for twice daily administration of cytarabine in

those regimens where the chemotherapy was administered on alternate days, namely

days 1, 3 and 5. Thus any alteration from twice daily to once daily within such a

consolidation protocol would have been, and ought to have been regarded as, a radical

change and have raised eyebrows as to whether such a radical change was intended. As

we know it was not intended. There were other significant changes that were intended

including a reduction in the actual dosage to 1gm from 2 or 3gms, the introduction of

idarubicin and the deletion of the age stratification in the elderly group. The actual

content of Associate Professor Lewis’ email to Mrs To did not in terms identify the

changes except that there was oblique reference to idarubicin and to a change of another

associated drug that is of little relevance. That said, the changes were, I find, clear

enough on the handwritten altered document that Associate Professor Lewis left with

his secretary as well as within the attachment to the email that summarised the ALLG

changes. This email was sent to Mrs To on a Saturday afternoon.

6.7. As things transpired Mrs To was due to go on leave during the course of the following

week, her last day at work being Wednesday 16 July 2014.

6.8. In her evidence Mrs To acknowledged that she received the email of 12 July 2014. She

said she had no appreciation of the reason why the alterations were being made.

6.9. On Tuesday 15 July 2014 at 5:16pm Mrs To sent an email to Associate Professor Lewis

attaching the modified protocol documents for his review. One of those documents was

10 Exhibit C49, page 146

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a version of the AML protocol draft containing the alterations that Mrs To believed

Associate Professor Lewis wanted, based upon the handwritten document that had been

provided to her. As I understood the evidence this amended version of the existing

2012 protocol, as sent by Mrs To to Associate Professor Lewis, did not in fact

incorporate the intended amendments to the relevant age based consolidation protocol,

but simply put lines through the three different age based regimens.

6.10. However, on the same day at 9:46pm Associate Professor Lewis sent Mrs To an email

thanking her for her work and setting out what he described as ‘minor changes’ to the

AML protocol. It stated:

'Change aged based cytarabine consolidation to cytarabine 1 g/mʌ2 d1, 3 & 5, idarubicin

12 mg/mʌ2 d1, 2, x 2 cycles' 11

It will be noted that this regimen is silent one way or the other as to whether the

cytarabine should be administered once daily or more than once daily on days 1, 3 and

5. However, in the absence of any specific instruction the lay reader might well have

inferred that a reference to administration on days 1, 3 and 5 would mean nothing other

than once daily administration. Clearly that was not Associate Professor Lewis’

intention. His intention was to indicate that the administration should occur twice daily

on days 1, 3 and 5. The instruction within his email should have said twice daily, or in

the abbreviated form ‘BD'. It did not.

6.11. Late in the afternoon of the following day, namely Wednesday 16 July, Mrs To

presented the amended AML protocol, that included a number of changes including the

changes to the relevant AML consolidation chemotherapy regimen, to Associate

Professor Lewis for his approval. Mrs To’s amended protocol12, as presented to

Associate Professor Lewis, stated as follows:

'3.6. HiDAC 1 - Ida Consolidation

Chemotherapy

Idarubicin 12 mg/m2 IV bolus over 10-15 minutes ONCE daily Day 1, Day 2,

Cytarabine IV 1 g/m2 ONCE daily Day 1, 3, 5'

It will be noted that once daily administration of cytarabine might be considered not to

be inconsistent with the instructions given within Associate Professor Lewis’s email of

11 Exhibit C149, page 175 12 Exhibit C9a

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the evening before, but was clearly inconsistent with the ALLG summary document

that Associate Professor Lewis provided Mrs To as an attachment to his email of

12 July 2014. I am not certain how or whether the reference to once daily corresponded

with Associate Professor Lewis’ handwritten alterations that he made available to

Mrs To through his secretary. That document is no longer available. Mrs To told the

Court that she disposed of this document.

6.12. In the course of her evidence Mrs To was examined closely about the circumstances in

which she came to present this erroneous document to Associate Professor Lewis on

Wednesday 16 July 2014. She took the amended protocol to Associate Professor Lewis

at his clinic room at around the time of the conclusion of Associate Professor Lewis’

outpatient clinic. Mrs To was going on leave as of that evening. She told the Court

that there was an urgency involved with the authorisation of the protocol because she

was going on leave for ten days and wanted to get it done and finalised before starting

her leave. In her evidence Mrs To acknowledged that it was inappropriate to have

presented the document to Associate Professor Lewis in this rushed fashion.

6.13. In cross-examination by Mr Griffin QC who represented Mr Knox, Ms Jennifer

Crannage and members of the families of some of the deceased persons, Mrs To stated

that Associate Professor Lewis examined the document for about 15 minutes while

apparently checking it. She sat quietly during this process. He gave it back to her and

said that the document was fine and so she concluded that she would be able to

promulgate the document. In her cross-examination Mrs To stated that although she

was not responsible for the error given that Associate Professor Lewis had

responsibility for checking the document and had ostensibly checked it to his

satisfaction, she felt that morally she had made a mistake by hurrying Associate

Professor Lewis in the carrying out of that process. Mrs To acknowledged that she had

not been under any pressure other than that placed upon her by herself13. She said it

had not been stipulated that the document had to be promulgated on the last day of her

work before leave was taken. I pass no judgment on those matters.

6.14. As to how the error crept into the draft that Associate Professor Lewis approved, the

answer is not certain but it may be that Mrs To inferred from Associate Professor

Lewis’ email of Tuesday evening 15 July 2014 that the absence of any reference to

dosage frequency per day meant that only once a day administration was intended. On

13 Transcript, page 931

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the other hand, in her evidence Mrs To seemed to reject this possibility because as she

asserted, ‘even is once daily it should be written as once daily’14. Mrs To stated that

she should have checked the frequency in any event. She went on to say that the very

omission within Associate Professor Lewis’ emailed instruction of any reference to

dosage frequency per day should have provided the necessary stimulus for her to have

performed that check.

6.15. As for Associate Professor Lewis’ involvement in the promulgation of the protocol, he

acknowledged that the lack of any reference to the frequency of dosage as being once

daily or twice daily in his email of the evening of 15 July 2014 was ‘likely to be an

oversight or an omission on my part’15. He acknowledged, as he must, that there should

have been such a reference within his email. He stated that he was aware that Mrs To

was about to go on leave. He said that when Mrs To presented the draft to him he spent

about 5 to 10 minutes scrutinising the document and he stated to the Court that he was

feeling under pressure to get it done because she was about to embark on her holiday.

6.16. I find that Associate Professor Lewis was presented with a draft that was erroneous in

that the frequency was stated to be once daily and not twice daily as he had intended,

and as had been set out in the ALLG summary document that he had attached to his

original email of 12 July 2014. I find that Mrs To, believing that the approved

document accurately reflected Associate Professor Lewis’ intentions, then promulgated

and distributed the erroneous document as an official protocol. She uploaded it to the

SA Pathology server where it would remain and be used in the prescriptions of RAH

AML patients until January 2015.

6.17. Associate Professor Lewis told the Court that he accepted responsibility for the error.

He acknowledges that the error occurred because of a number of shortcomings

including his imprecise instructions to Mrs To, a failure to perform appropriate due

diligence when checking the final version of the protocol, not presenting the amended

protocol in an appropriate clinical forum and by not having a second clinician check

the protocol. In Court Associate Professor Lewis without prompting publicly said as

follows:

'This error was a significant error and I would like to express my sincere apologies for the

error. The error has caused significant implications for large numbers of people. First and

foremost I would like to offer my profuse apologies to the patients and their families who

14 Transcript, page 928 15 Transcript, page 1886

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have suffered as a consequence of this error. AML is a devastating disease and to receive

treatment on a protocol and receive the less than intended dose of chemotherapy is truly

devastating and I realise that this will have effects on your lives for a long period of time

and I just cannot imagine how that's made you feel so please accept my apologies. The

error has also impacted on many of my professional colleagues who I respect and they

have become involved in this episode because of my error and so I would also like to

express my apologies to my fellow consultant haematologists, haematology registrars,

pharmacists, nursing staff and administrative staff.' 16

6.18. At 5:59pm on Wednesday 16 July 2014, which I find was after Mrs To had presented

the amended protocol to Associate Professor Lewis and after he had approved it,

Mrs To sent an email to a number of persons within ‘Health’17, the subject being

described as ‘New AML (excluding APML) protocol uploaded’ and attaching the

uploaded and erroneous consolidation protocol which called for the administration of

cytarabine only once daily on days 1, 3 and 5. In her email Mrs To simply referred to

the fact that ‘significant changes’ had been made to the protocol. Her email asserted

that Associate Professor Lewis himself would send an email to highlight the changes.

Included among the recipients of Mrs To’s email, of which there were in excess of fifty,

were Associate Professor Lewis himself, Professor Peter Bardy, Dr Ashanka

Beligaswatte, Dr Douglas Coghlan, Dr Devendra Hiwase, Dr Noemi Horvath,

Dr Naranie Shanmuganathan (a Registrar), Associate Professor Agnes Yong and

Dr Luen Bik To. They were clinicians at the RAH. It was also circulated to doctors at

the FMC including Professor Alex Gallus, Dr David Ross (who also worked at the

RAH) and Associate Professor Bryone Kuss who was Associate Professor Lewis’

counterpart at the FMC. A number of these doctors would have an involvement with

the treatment of the patients under discussion. With the exception of Associate

Professor Agnes Yong, none of these practitioners would identify the error in the

circulated protocol. Ultimately Associate Professor Yong was responsible for

identifying the error, but not until January 2015. That the error was not identified

earlier owes itself to a number of circumstances as will be discussed, including the fact

that this and other emails were not read by the medical practitioners to whom they were

circulated and secondly to an imperfect understanding of the scientific principles

underlying the administration of consolidation chemotherapy using the agent

16 Transcript, pages 1887-1888 17 That is, SA Health

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cytarabine. On the part of some, there was also a perplexing level of apparent

insouciance in relation to the whole affair.

6.19. On the subject of emails, there is a measure of arrogance and self-importance

underlying the tacit if not express proposition advanced by some that it is somehow

acceptable within the profession in question not to read emails as and when they are

received. The reverse side of this is the equally unacceptable notion that one can

assume that when an individual sends an email he or she has little or no expectation that

they will be read. The other aspect of the manner in which emails were sent and

received is that they tended to be sent to multiple recipients who were members of a

large distribution list that included different types of professionals, some of whom had

little or no interest in the content, with the result that their importance was lost on the

persons who really had to take the content of these emails on board.

6.20. As predicted by Mrs To in her email of 16 July 2014, on Saturday 19 July Associate

Professor Lewis sent an email which set out a summary of the changes to the new AML

protocol which had been uploaded. The email was sent to all of the persons whom I

mentioned in the previous paragraph and also to Mrs To herself. Associate Professor

Lewis’ email, insofar as it related to changes to consolidation therapy for non-CBF

AML in respect of patients of or greater than 56 years of age, stated that the therapy

had been changed to:

‘Cytarabine 1g/mʌ2 bd d 1 3 5 plus idarubicin 12mg/mʌ2 d1 and 2 for 2 cycles (replacing

age based cytarabine consolidation).’ 18 (the emboldening and underlining of ‘bd’ is that

of the Court)

It will immediately be noted that this description of the altered regimen included

reference to the fact that cytarabine would be administered twice daily as represented

by the letters ‘bd'. While this was in fact correct, it did not reflect the erroneous content

of the protocol that Mrs To had uploaded and distributed by email on 16 July. What

the email of Associate Professor Lewis does do though is confirm beyond doubt that he

had intended the protocol to reflect twice daily administration. It also serves to indicate

that he either misread the draft protocol when it was presented to him by Mrs To on the

Wednesday afternoon or did not notice reference to the erroneous ‘ONCE’ in

connection with that regimen. It is also clear that when Mrs To circulated the amended

protocol in her email of the evening of Wednesday 16 July 2014, Associate Professor

18 Exhibit C49, page 197

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Lewis did not trouble to read the circulated and uploaded amended protocol at that

point, no doubt on the assumption that it corresponded with what Mrs To had presented

to him earlier that afternoon and which he had approved.

6.21. As indicated earlier Mrs To commenced her leave on Thursday 17 July 2014. In her

evidence she stated that she had the ability to check emails while on leave and on

weekends. As far as Associate Professor Lewis’ email of Saturday 19 July is

concerned, she told the Court that she either did not read the email if she saw it at all or

would not have seen it on 19 July 2014 as she was attending a camp cooking for

university students and had been thinking about other things. In any event when she

returned from leave and read the email it did not dawn on her that she had made a

mistake in the uploaded protocol. I find that Mrs To either did not notice within the

body of Associate Professor Lewis’ email that the regimen called for twice daily

administration, or if she did notice that, it did not occur to her that the protocol that she

had uploaded said something different. I infer and find that no person drew the error to

the attention of either Associate Professor Lewis or of Mrs To at any time prior to the

early part of the following year.

6.22. In cross-examination by counsel assisting, Ms Kereru, Associate Professor Lewis

stated, somewhat surprisingly, that there were no formal processes in place to govern

protocol changes such as occurred here19. It was pointed out to him that he had

acknowledged in the course of the investigation into this affair conducted by the

Australian Health Practitioner Regulation Agency (AHPRA) that the changes were not

of such a magnitude as to require formal presentation at either a unit protocol meeting

or to the AML sub specialty group. However, he said that ‘in retrospect’ he should

have presented the protocol at either the unit protocol meeting or at the AML

multidisciplinary team meeting. He conceded in cross-examination that he no longer

held the view that he had expressed to AHPRA that the changes were of not such a

magnitude that they did not require formal presentation to the entities concerned20.

Associate Professor Lewis also acknowledged that in respect of his responsibility to

manage and document a process of consensus among specialists as to what an agreed

consolidation treatment for AML should consist of, he did not discharge that

responsibility to an adequate standard21. He also agreed that he did not discharge his

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responsibility to ensure that changes to an RAH protocol were accurately transcribed

and recorded to an adequate standard22.

6.23. In answer to me, Associate Professor Lewis asserted that if prior to promulgation the

defective document had been presented to his colleagues within the forums that he

described, he would have expected the error to have been detected23. In cross-

examination by Mr Griffin QC, Associate Professor Lewis was asked who of his RAH

colleagues would have been the most appropriate person to have checked the accuracy

of the amended protocol. In answer he stated that this person would probably have

been Associate Professor Agnes Yong24. It is appalling, and of course tragic, that an

experienced collegial resource such as Associate Professor Yong was not brought into

the promulgation process at least as a checker. It was Associate Professor Yong who

would identify the irregularity of once daily administration when it came to her

attention for the first time in January 2015. I have no doubt that had she been consulted

about the matter in July 2014 when the altered protocol was promulgated, Associate

Professor Yong would have identified the irregularity and have brought it to Associate

Professor Lewis’ attention. Quite apart from the failure to present this altered protocol

to the relevant entity that should have approved it, checking by at least one of Associate

Professor Lewis’ peers should undoubtedly have occurred.

6.24. I accept and acknowledge all of Associate Professor Lewis’ self-criticism. I make

specific findings that all of that criticism is accurate and valid.

6.25. Unfortunately protocol changes that were contemplated were not routinely discussed at

Heads of Unit meetings that from time to time were attended by the Heads of

Haematology at the different tertiary hospitals. So, for instance, Associate Professor

Lewis’ counterpart at FMC, Associate Professor Bryone Kuss, would not routinely have

been made aware of contemplated changes to RAH protocols or have been asked to

pass any comment in respect of such contemplated change or changes25, and this would

be so notwithstanding the fact that the various Unit heads were all employees of SA

Pathology.

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6.26. I make the following findings:

• The process by which the RAH consolidation chemotherapy protocol was altered

was sloppy, ad hoc and prone to introduce error. The introduction of the error was

caused by poor communication as between Associate Professor Lewis and Mrs To.

The error was introduced to the document by Mrs To.

• Associate Professor Lewis failed to properly check the protocol draft. He did not

allow himself sufficient time to enable a proper check of the document to take place.

He should not have been asked to check the document while either he or Mrs To

were under pressure for time.

• Associate Professor Lewis should have presented the protocol at either a Unit

Protocol meeting or at the AML Multi-disciplinary team meeting before it was

promulgated.

• Associate Professor Lewis did not discharge to an adequate standard his

responsibility to manage and document a process of consensus amongst specialists

as to what an agreed consolidation treatment for AML should consist of.

• Associate Professor Lewis should have at the very least asked a responsible

colleague to check the final draft. Associate Professor Yong would have been the

most appropriate person in that regard. I find that Associate Professor Yong would

probably have identified the error if she had been asked to check the final and

erroneous draft.

• Email was an inappropriate and clumsy way of advising professional people of

important information. Mrs To’s email and attachment and Associate Professor

Lewis’ email in effect contradicted each other as to the required frequency of

administration of cytarabine. The contradiction could only have been identified if

a recipient of both emails compared the content of the protocol alteration within the

protocol itself with the content of Associate Professor Lewis’ email. No person

identified the contradiction.

• The introduction of the error into the RAH protocol was directly the cause of the

erroneous protocol being applied to the consolidation chemotherapy for Mrs

Pinxteren, Mr McRae and Mrs Bairnsfather at the RAH and was also responsible

indirectly for the erroneous protocol being applied to the clinical treatment of Mr

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Higham and Mr Knox at the FMC. As will be seen, there were further missed

opportunities for the error to have been identified at the FMC.

7. The promulgation of the erroneous protocol at the FMC

7.1. I have already referred to the fact that each of the public hospitals at which

haematological services were provided had complete autonomy as far as the content of

its chemotherapy protocols was concerned. The fact that FMC utilised templates which

served as the basis of a patient’s prescription meant that there was no actual need for a

clinician to check the actual protocol that existed on the SA Pathology database when

prescribing consolidation chemotherapy. Thus the fact that the RAH had altered that

protocol did not of itself mean that the alteration would be drawn to the attention of

other hospitals or that the alteration would in any other way be identified by

haematology staff at the FMC.

7.2. In the event it would be a medical practitioner concurrently working within the

Haematology Departments of both the RAH and the FMC who was the instrument in

introducing the new and erroneous protocol at the FMC. That medical practitioner was

Dr Ashanka Beligaswatte.

7.3. Dr Beligaswatte obtained his basic medical degree from the University of Colombo, Sri

Lanka in 2000. Following the receipt of his degree he entered into the physician

training program in Sri Lanka. He obtained a Doctorate of Medicine in 2005. He

worked within a number of hospitals within Sri Lanka. Dr Beligaswatte came to

Australia in 2007. His aim in coming to Australia was to undergo training in clinical

and laboratory haematology. He began work at the RAH as a resident medical officer

and in 2009 entered into the advanced training program in haematology. He completed

his training over the next four years, ultimately obtaining fellowships in the Colleges

of Pathology and Physicians in 2012 and 2013.

7.4. In 2013 Dr Beligaswatte began working as an Acute Leukaemia Fellow at the RAH and

later in that year obtained a locum consultant position part time at the FMC. During

the course of 2014 he worked between the RAH and FMC Haematology Departments,

for the most part working at the FMC. Early in 2015 he had a 0.1 appointment at the

RAH which was devoted to ward service. His last working day at the RAH was

30 January 2015. Thereafter he worked at the FMC as a consultant haematologist on a

0.9 basis. His principal area within the field of haematology is in respect of malignant

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conditions of the blood and his special interest is in acute leukaemias. Dr Beligaswatte

told the Court that at the FMC he was considered to be the clinical lead for acute

leukaemia. This meant that he would take the lead in developing protocols and would

also be the principal investigator for any acute leukaemia trials that might be activated

at the FMC. These claims came as a surprise having regard to his relative inexperience.

However, as at July 2014, when he still had a substantial involvement within the

Haematology Department of the RAH, he had not been involved in protocol

development26. Dr Beligaswatte said that in 2014 he was a member of the ALLG and

that in late July 2014 he became a member of the ALLG’s acute leukaemia group which

is the entity within the ALLG that assists in the designing of clinical trials.

Dr Beligaswatte told the Court that being in the early stage of his career as a

haematologist, he began to become involved in the activities of that group27.

Dr Beligaswatte acknowledged that between July 2014 and February 2015 he was a

relatively junior haematologist28.

7.5. Dr Beligaswatte gave evidence at considerable length. He was represented by

Ms Joanne Cliff of counsel.

7.6. Dr Beligaswatte told the Court that in 2014, in his capacity as a Fellow in the

Haematology Department of the RAH, he became aware that consideration was being

given to developing new AML protocols. His understanding was that the protocols

were being developed as a result of consultation among national AML experts.

Dr Beligaswatte himself was not privy to any of those discussions, but was aware that

AML protocols were to be revised on the basis that exposure to cytarabine should

probably be reduced because of a perception that higher dosages were causing

unnecessary toxicity. As well, it was contemplated that idarubicin would be

incorporated into consolidation treatment regimens.

7.7. On 16 July 2014 at an FMC ward meeting attended by his haematology colleagues,

Dr Beligaswatte participated in a discussion along the lines that it would be desirable

to synchronise the approach of FMC to that of the RAH given that the RAH was the

State’s stem cell transplant centre and that the FMC would be likely to refer patients to

the RAH for that treatment. It was thought that it would be reasonable to align the FMC

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consolidation chemotherapy protocols with those of the RAH. Dr Beligaswatte

asserted that to that end an in-principle decision to adopt the RAH standard

consolidation protocol was made at that meeting. Dr Beligaswatte believed that

Ms Kailin Teh, the FMC haematology pharmacist I have referred to earlier, was present

at this meeting and that perhaps Dr Douglas Coghlan, an FMC haematology consultant,

was also present. Dr Beligaswatte did not suggest that Associate Professor Bryone

Kuss who was the Head of the Haematology Department at the FMC was present at this

meeting, but it is clear that he and she had been involved in some earlier discussion

about the matter. In fact Associate Professor Kuss was on leave on 16 July and did not

return to work at the FMC until Monday 21 July 2014, the events of which day have

some significance in terms of the introduction of the error into the FMC chemotherapy

regimen.

7.8. Dr Beligaswatte said that although he did not have any understanding about the manner

in which the FMC dealt with the introduction of protocols, he had personally advocated

for the RAH protocols to be adopted at the FMC. To his knowledge this was the first

occasion on which a new protocol had been developed since he had started work at the

FMC in November 2013. He said he had no understanding of the procedure for such

development. In his evidence-in-chief Dr Beligaswatte was asked whether anyone at

the 16 July ward meeting had suggested that the adoption of a protocol needed to take

place via a formal FMC process for the development of FMC protocols. He said that

he could not recall any discussion on this but suggested that if such a process had been

drawn to his attention he would have complied with it. As will be seen, Associate

Professor Kuss suggested in her evidence that there was such a process, although not

documented at that point in time.

7.9. One matter is reasonably clear and I so find is that Dr Beligaswatte did not raise with

Associate Professor Lewis at the RAH the idea of harmonising consolidation therapies

as between the two hospitals. Associate Professor Lewis said in evidence that he had

no recollection of any proposed harmonisation process that would involve the FMC

adopting RAH protocols and in particular anything based on the ALLG M15 study.

Associate Professor Lewis said that Dr Beligaswatte never told him that he was going

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to uplift the RAH protocol and have it adopted at the FMC29. Dr Beligaswatte did

expressly not assert otherwise.

7.10. I find that in July 2014 and for the rest of that year Associate Professor Lewis was

unaware that the FMC were using the new protocol that he had instigated at the RAH30.

However, I am not certain that even if Dr Beligaswatte had told Associate Professor

Lewis of his intentions regarding the adoption of the protocol at the FMC that it would

have prevented the error being reproduced in any revised FMC chemotherapy regimen.

This is so because in his evidence before the Court Associate Professor Lewis suggested

that the FMC would have had their own protocol approval processes and that he would

have expected them to have followed those processes, meaning that Associate Professor

Lewis would not have had any personal input or other involvement in the adoption of

the protocol at the FMC31.

7.11. When asked by Dr Beligaswatte’s own counsel as to whether he had advised anyone at

the RAH that the FMC had decided to adopt the RAH protocol, Dr Beligaswatte said

that he might have had informal conversations in that regard but he could not recall

doing that32. I find that he did not tell anyone at the RAH that the FMC was going to

adopt or had adopted the protocol. However, I note that in an email that

Dr Beligaswatte would send to a number of people in Health at 9:08am on Monday

21 July 2014, he forwarded Mrs To’s email of 16 July 2014 that attached the updated

RAH protocol as well as Associate Professor Lewis’ email of 19 July which correctly

set out the protocol changes. As will be seen in a moment, the text of Dr Beligaswatte’s

email referred among other things to the ‘aim’ of the RAH protocol and to the details

of the intended revised protocol which as it happened, and quite bizarrely so having

regard to what ultimately would be the adoption of an incorrect version of the protocol,

also spelt out the correct frequency of administration. One of the recipients of

Dr Beligaswatte’s email was the person who was said to be the transplant coordinator

at the RAH. It would not have taken much for the astute reader of Dr Beligaswatte’s

email in conjunction with the forwarded emails of Mrs To and Associate Professor

Lewis to deduce that the FMC were intending to adopt an RAH protocol. In some

senses then, the RAH through its transplant coordinator was cloaked with the

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knowledge that the FMC were adopting their protocol. The rather ironic difficulty with

Dr Beligaswatte’s email, however, is that he had described the protocol correctly and

so for that reason knowledge on the part of anyone at the RAH that the FMC were in

the process of adopting an RAH protocol, gained by reading Dr Beligaswatte’s email,

would not necessarily have led to a detection of the error. One would have needed to

read the actual uploaded protocol itself in order to detect the error.

7.12. As a measure of Dr Beligaswatte’s enthusiasm to have the RAH protocol adopted at

FMC it will be observed that as of Wednesday morning 16 July 2014 which

Dr Beligaswatte asserts was the day on which in-principle approval was given at the

FMC for the adoption of the RAH protocol, the draft had yet to be approved by

Associate Professor Lewis at the RAH. It will be recalled that it was during the late

afternoon and evening of 16 July that Mrs To at the RAH would obtain Associate

Professor Lewis’ approval of the draft and then circulate the amended and uploaded

protocol. According to Dr Beligaswatte a reason for haste was the fact that an AML

patient at the FMC, Ms Jennifer Crannage, was about to undergo consolidation

chemotherapy treatment in the coming days and a decision needed to be made whether

this patient would be treated according to their current practice or whether she would

be treated in accordance with the new RAH protocol33. As things would transpire

Ms Crannage would be treated at the FMC in accordance with the adopted and

erroneous RAH protocol. Ms Crannage is one of the ten persons affected by the error

and is one of the surviving patients.

7.13. This brings me to the mechanism by which the error was introduced into the FMC

processes notwithstanding that Dr Beligaswatte had correctly described the regimen in

his email of 9:08am on 21 July.

7.14. As at Monday 21 July 2014 the patient Ms Crannage was due for her first consolidation

chemotherapy cycle at the FMC. Ms Crannage was actually Associate Professor Kuss’

patient. However, Dr Beligaswatte was her prescribing haematologist on this occasion

as Associate Professor Kuss had been on leave until that day. At 9:08am on Monday

21 July 2014 Dr Beligaswatte sent an email to the following recipients: Ms Kailin Teh

an FMC haematology pharmacist, Dr Douglas Coghlan an FMC haematology

consultant, Associate Professor Kuss the head of haematology at the FMC, other FMC

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physicians and the person who was said to be the transplant coordinator at the RAH.

Among other things, Dr Beligaswatte’s email explained in some detail the rationale

behind the protocol alterations that included reference to the reduction of cytarabine

and the intensifying of the idarubicin component of the treatment, the idea being to

reduce toxicities to a point that would allow additional therapies to be delivered such

as maintenance therapy as it became available. Specifically addressed to Ms Kailin

Teh was a request for her to prepare a ‘template protocol’ for consolidation for the

patient Ms Jennifer Crannage. The email went on to state:

'According to the latest protocol she will need cytarabine 1g/m2 BD on days 1, 3, 5, and

idarubicin 12mg/m2 on days 1, 2.' (the emboldening and underlining of ‘BD’ is that of the

Court)

It will immediately be observed that Dr Beligaswatte told Ms Teh, and as copied to the

other recipients, that cytarabine would be administered to Ms Crannage twice a day as

represented by the term ‘BD’. Moreover, this part of the instruction to Ms Teh was said

by Dr Beligaswatte to accord ‘to the latest protocol’. The latest protocol of course was

the RAH protocol which as of 21 July 2014 stated erroneously that cytarabine would

be administered only once daily. Clearly, Dr Beligaswatte did not refer to the actual

protocol when drafting this email instruction to Ms Teh. If he had consulted the

document he would have seen at that point that it said once daily. I will come to the

reason why in his email Dr Beligaswatte indicated twice daily in due course.

7.15. As indicated earlier, Dr Beligaswatte’s email of 9:08am on 21 July 2014 forwarded the

email of Mrs To of the afternoon of Wednesday 16 July 2014 in which she attached the

updated AML protocol that Associate Professor Lewis had approved only a short time

before. As well, within that chain of emails sent by Dr Beligaswatte at 9:08am there

was Associate Professor Lewis’ email of Saturday 19 July 2014 in which Associate

Professor Lewis explained to the various recipients that included Dr Beligaswatte,

Dr Coghlan and Associate Professor Kuss the changes to the consolidation therapy

protocol which made specific reference to the need for cytarabine to be administered

twice daily.

7.16. At 10:15am on Monday 21 July 2014 Ms Teh responded by way of email to

Dr Beligaswatte’s email of that morning. With the exception of the RAH transplant

coordinator, Ms Teh’s email was sent to the recipients whom Dr Beligaswatte had

included in his original email. In Ms Teh’s email she queried whether the patient

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Ms Crannage was non-CBF. The patient under discussion, Ms Crannage, was not

CBF34. Ms Teh’s email went on to state as follows:

'Can you please confirm – From the new protocol the cytarabine is 1g/m2 DAILY on d1,

3, 5 (not BD).'

It is evident from this query that Ms Teh had gone to the RAH protocol and had seen

for herself that it specified once daily administration and not BD administration.

7.17. Any recipient reading Ms Teh’s email should have identified an issue as to whether

cytarabine was to be administered once daily or twice daily in Ms Crannage’s

consolidation chemotherapy and that the issue was going to require resolution before

Ms Crannage could be treated. Further, the issue of dose frequency was a matter dealt

with in Associate Professor Lewis’ earlier forwarded email where he too had referred

to twice daily administration. There is no evidence that any person, including

Dr Coghlan and Associate Professor Kuss, recognised from this chain of emails that

there was an issue regarding frequency of administration that needed to be resolved

before Ms Crannage’s prescription could be completed. The day on which this chain

of emails occurred was Associate Professor Kuss’ first day back from leave. To my

mind the resolution of the issue encapsulated within the email exchange called for

intervention either by Dr Coghlan and/or Associate Professor Kuss. Notable is the fact

that Associate Professor Lewis was not copied into the email exchange between

Dr Beligaswatte and Ms Teh and thus the email chain was not capable of alerting

Associate Professor Lewis to the issue of once daily versus twice daily administration

that had arisen.

7.18. At 11:34am on Monday 21 July 2014 Dr Beligaswatte replied to Ms Teh’s email with

his own email. Dr Beligaswatte did not send this email to any person other than

Ms Teh. I set out below the full text of the email:

'Hi Kailin,

Yes she is non-CBF and you are right it is a daily dose of cytarabine.

Thanks

Ashanka'

This piece of information was correct if one was talking exclusively about the erroneous

once daily stipulation within the protocol, but it was wholly incorrect clinically because

34 As indicated earlier, different considerations applied to patients who were CBF

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the M15 study called for twice daily administration of cytarabine and the promulgator

of the study at the RAH, Associate Professor Lewis, had never intended once daily

administration. Of course, once Dr Beligaswatte instructed Ms Teh that the frequency

was daily, he was then in conflict with what Associate Professor Lewis had stated in

his email of 19 July and was in conflict with what he himself had said in his own

originating email of a couple of hours before. Knowing as he should have that his

superior at the RAH, Associate Professor Lewis, had stipulated twice daily in his email

of 19 July, an email that Dr Beligaswatte himself had forwarded to FMC clinicians,

Dr Beligaswatte never made any attempt to ‘correct’ Associate Professor Lewis. I place

the word ‘correct’ in inverted commas because, as is clear, Associate Professor Lewis

in his email had been correct all along. If Dr Beligaswatte had been sufficiently diligent

and astute to raise the issue with Associate Professor Lewis as he should have, there is

little doubt that the error within the protocol would, at that point in time, have been

identified both at the RAH as well as at the FMC. Dr Beligaswatte’s failure to do this

was a glaring missed opportunity to correct the protocol error. There were other equally

spectacular missed opportunities as will be seen.

7.19. During the course of this exchange of emails between Dr Beligaswatte and Ms Teh of

21 July 2014 it is alleged that they engaged in an important telephone conversation. I

say alleged because Dr Beligaswatte in his evidence was not prepared to explicitly

acknowledge that it occurred. But I find that it did occur. It is an important

conversation as to my mind it exonerates Ms Teh of any serious wrongdoing or neglect

but invites criticism of Dr Beligaswatte in a significant manner.

7.20. The evidence as to this conversation unfolded in the following manner. Mr Bonig of

counsel for Ms Teh suggested to Dr Beligaswatte in cross-examination that following

the receipt of Ms Teh’s email of 10:15am in which she had queried whether the

frequency of administration of cytarabine was daily and not BD, Ms Teh telephoned

him and asked whether he could provide her with the underlying source documentation

that supported the protocol. Dr Beligaswatte answered Mr Bonig by saying that he

could not remember the conversation but that he was not denying that it happened. It

was also suggested to him by Mr Bonig that he had responded to Ms Teh by saying

‘you don’t have any of the source documents, just rely on the protocol’35. To this he

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said that he could not recall the conversation36 and so he did not know how to answer

that question.

7.21. In Ms Teh’s oral evidence she testified that she had noticed a difference between the

RAH protocol which stipulated once daily administration and what Dr Beligaswatte

had requested in his email of 9:08am which set out twice daily. She said that she

decided to seek a reference document that would support the template and to that end

telephoned Dr Beligaswatte. Asked by her counsel Mr Bonig as to why she had wanted

such a document she said:

'To ensure accuracy. That is generally what we would use to create a template.' 37

7.22. Ms Teh testified that in response to her request for the document Dr Beligaswatte told

her that as this was a trial protocol from the RAH there would be no published article

available. The RAH was the trial investigator and the protocol was the reference

document. In the event Ms Teh would make reference only to that protocol in creating

the new FMC template.

7.23. Any assertion by Dr Beligaswatte to the effect that there was no supporting

documentation other than the RAH protocol was not accurate. On Friday 18 July 2014

at 6:07pm Dr Michelle Damin who was a Registrar at the RAH had sent an untitled

email to Dr Beligaswatte38 that attached a document described as ‘the role of HiDAC’.

This attachment was the three page document that had originally been forwarded by

Associate Professor Lewis to Mrs To and which appears to be a summary of the ALLG

document setting out the new AML consolidation chemotherapy regimens, including

the regimen in question for non-CBF persons over 55 years. This was the document

that correctly identified cytarabine administration twice daily on days 1, 3 and 5.

Dr Damin’s email was sent to Dr Beligaswatte without any commentary. This email

served to place Dr Beligaswatte in possession of a document that demonstrated that the

ALLG consensus was that cytarabine would be administered twice daily in respect of

people over the age of 55 years. The content of that document also served to confirm

the accuracy of the email that would be sent by Associate Professor Lewis on Saturday

19 July 2014 in which he specified twice daily administration.

36 Transcript, page 1653 37 Transcript, page 2378 38 Dr Beligaswatte was the sole recipient of this email

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7.24. In respect of this document Dr Beligaswatte told the Court that his recollection was that

he had asked Dr Damin whether she was aware of any publications that used the

specific protocols and she had told him that Associate Professor Lewis had circulated a

document. Associate Professor Lewis’ evidence confirms that Dr Damin had

approached him for documentation supporting the protocol change and that he provided

it to her39. As a result of this Dr Damin sent the document to Dr Beligaswatte by way

of email. Dr Beligaswatte told the Court as follows:

'When you read this document it was clear to me that it was written by experts at the

Australasian Leukaemia & Lymphoma Group, the ALLG and that it was advocating for a

certain approach to changing the current way in which AML patients were treated. It was

clear to me that it did not mention that there were any specific - however, it was clear to

me that this document when you read the text of it isn't citing a specific study that our

protocols would have used exact regimens so therefore I read this document primarily to

understand what those - what the philosophy would have been for the change in AML

protocols. My understanding from reading this document was that expert opinion was

advocating for a reduction in cytarabine exposure and at the same time intensifying

anthracycline exposure because of evidence in other studies that that might be beneficial.

So that was the message I took out of this document. ' 40

Dr Beligaswatte was asked by his own counsel whether he had read the third page of

the document which set out the chemotherapy regimens including the regimen in

question:

'Q. Just so we can be clear, did you read this page when you received the email from

Ms Damin (sic).

A. My focus was entirely on understanding the rationale for the changes in the RAH's

2014 protocol and when I read the first page I understood what this particular

document could and could not provide me. I don't remember whether I glanced at the

final page or not but it was certainly not the primary focus of my reading of this

document. ' 41

Clearly, if Dr Beligaswatte had read and digested that third page he would have noticed

as early as 18 July 2014 that twice daily administration of cytarabine was required in

respect of patients such as Ms Crannage. True it is that the first two pages have as their

primary focus induction chemotherapy in relation to younger patients with AML, but

that was no reason not to read the third page. After all, he had instigated the request of

Dr Damin for documentation that evidenced the protocol.

39 Transcript, pages 1888-1889 40 Transcript, pages 1420-1421 41 Transcript, page 1422

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7.25. I find that the telephone conversation as described by Ms Teh did in fact occur.

Dr Beligaswatte did not deny that it occurred and it was not suggested in Ms Teh’s

cross-examination that it did not occur. It seemed to me logical and likely that Ms Teh

would have sought a source document other than the bare RAH protocol so as to ensure

accuracy as she asserted. According to Associate Professor Kuss, the obtaining and

sighting of a source document was a requirement in the process of protocol

development. It is likely for that reason that Ms Teh would have sought such a

document and in the circumstances have sought it from Dr Beligaswatte. The fact that

Dr Beligaswatte regarded the document that he did have as not being a suitable

document to have provided to Ms Teh is consistent with the notion that Dr Beligaswatte

told Ms Teh that he had nothing to give her other than the RAH protocol.

7.26. To my mind it was splitting hairs to suggest that this document would not have been

suitable as a source at least to confirm in the eyes of the pharmacist, Ms Teh, the details

of the particular regimen that would be used as a prescription for Ms Crannage. It was

the document that Associate Professor Lewis had relied upon and which he had

provided to Mrs To. It was a document that reflected Associate Professor Lewis’

intentions regarding frequency of dosage. To suggest that it would not have been

worthwhile to have provided that document to Ms Teh in my opinion was specious. In

this regard it is important to appreciate that in her oral evidence Ms Teh said that if she

had been provided with this document she would have read it and would have raised a

concern that the document did not support the RAH protocol42. I unhesitatingly accept

that evidence. It is an inevitable conclusion, therefore, that if Ms Teh had raised a

concern the error would have been detected. Accordingly, the promulgation of the error

would in my view been avoided at the FMC if Dr Beligaswatte had provided Ms Teh

with the document as he undoubtedly should have. Dr Beligaswatte himself would also

have been made aware of the error.

7.27. I should also mention that there was another more detailed ALLG document in

existence that set out chapter and verse the rationale of the M15 study and which clearly

set out the protocol43. This document dated 26 September 2012 was entitled ‘A pilot

study exploring high-dose lenalidomide maintenance therapy in adult AML’. Its

protocol number was AMLM15. It stipulated that the recommended consolidation

42 Transcript, page 2401 43 Variously Exhibits C48a and C50, page 95

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chemotherapy as the precursor for enrolment in the M15 study involved twice daily

administration of cytarabine. I can see no reason why this document could not have

been made available to Ms Teh. It clearly should have been made available to her by

somebody. If it had been made available it too would have alerted her to the fact that

the RAH protocol did not conform to it. If Dr Beligaswatte had read this document he

also could have come to no other conclusion.

7.28. Dr Beligaswatte was in possession of the document forwarded to him from Dr Damin.

He was also in possession of Associate Professor Lewis’ email that described twice

daily administration. A doubt had been raised by Ms Teh about whether or not

administration was daily or twice daily. It was unfortunate that Ms Teh in her telephone

conversation with Dr Beligaswatte did not discuss with him the inconsistency that she

had obviously identified, but she was told that she should rely on the RAH protocol and

a prescription for the patient Ms Crannage needed to be compiled. In those

circumstances it is difficult to be overly critical of Ms Teh. Nevertheless,

Dr Beligaswatte had been in a position to clarify the matter because all he had to do

was raise the matter with Associate Professor Lewis. If this had taken place on 21 July

2014 no doubt Associate Professor Lewis would have clarified the matter and have

advised that twice daily dosing was required. As part of that process there is little doubt

that the error in the RAH protocol would have been identified and corrected. If that

had occurred, much of the underdosing that would subsequently occur at the RAH

would have been avoided.

7.29. In the event, at 12:15pm on 21 July 2014 Dr Beligaswatte emailed Ms Teh and

indicated that he had signed the protocol and that it was on the server available for

checking. This was effectively the prescription for Ms Crannage. Ms Teh rechecked

it and applied her electronic signature to the document. Thus, the error was set in

concrete within the FMC consolidation chemotherapy template. The result was that

Ms Crannage was administered the unintended regimen of consolidation chemotherapy

as were four other individuals who were treated at the FMC during the remainder of

that year and in January of the following year.

7.30. There is one circumstance connected with the promulgation of the error at the FMC that

defies all rational explanation. On 18 July 2014 Dr Beligaswatte, who was Mr McRae’s

haematologist at the RAH, signed off on the prescription for the first cycle of

consolidation therapy for Mr McRae. This would commence on Monday 21 July 2014.

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The prescription was created in accordance with the revised protocol that had been

promulgated earlier in the week and which contained the error of once daily

administration. However, it will be noted that 18 July was also the day on which

Dr Beligaswatte had received the document from Dr Damin that specified twice daily

administration. During the intervening weekend Associate Professor Lewis sent his

email dated 19 July 2014 in which Associate Professor Lewis stated that consolidation

therapy had been changed in a number of facets but that it would be administered ‘bd’,

that is twice daily. This email had been sent to many recipients including

Dr Beligaswatte. The confounding circumstance is that, as seen above, at 9:08am on

Monday 21 July 2014 Dr Beligaswatte circulated that email to his FMC colleagues

including Dr Coghlan and Associate Professor Kuss with tacit approval. Moreover, on

that same day, namely Monday 21 July 2014, Dr Beligaswatte stated in his own email

to Ms Teh, and copied to Dr Coghlan and Associate Professor Kuss, that the

consolidation treatment for Ms Crannage would be ‘BD’. Bizarrely, all this occurred

notwithstanding the fact that Dr Beligaswatte himself had prescribed once daily

administration for Mr McRae on the Friday. In fact the treatment for Ms Crannage

should have been clinically identical to the treatment of Mr McRae. There was nothing

clinically to distinguish Mr McRae’s treatment from Ms Crannage’s treatment that

would in any way have dictated a different frequency of administration. And yet

Dr Beligaswatte, at least to begin with, in effect prescribed for Ms Crannage twice daily

administration when only three days beforehand he had prescribed once daily for Mr

McRae. It was only when Ms Teh queried whether the protocol was meant to specify

daily and not BD that Dr Beligaswatte confirmed that Ms Crannage’s treatment was to

be daily. In the event, Mr McRae and Ms Crannage would be administered once daily

administration in both rounds of their consolidation chemotherapy.

7.31. This set of circumstances raises serious questions as to why Dr Beligaswatte failed to

realise that he had contemplated differing regimes of treatment for essentially identical

patients and why this in itself did not raise a query in his own mind as to which of the

two differing treatments was the correct one rather than have waited for Ms Teh to raise

that query. As well, if Dr Beligaswatte when writing his email of 21 July at 9:08am

thought that twice daily was the appropriate frequency, it would raise a question as to

why he would not have corrected his prescription of once daily in the case of Mr McRae

who was due to have his first consolidation dose that afternoon. In truth, there are no

sensible answers to any of these questions.

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7.32. In the course of his evidence Dr Beligaswatte was closely questioned about a number

of matters in connection with his involvement in the promulgation of the erroneous

template at the FMC. This included an examination of the source of Dr Beligaswatte’s

assertion made within his initiating email of 21 July 2014 that specified twice daily

administration, correctly, and why this was not acted upon. It also included an

examination of why it was that when confronted with the possible inconsistency

between daily and twice daily he did not clarify the matter by going to the original

source, namely Associate Professor Lewis. In addition, there was a question as to why

he chose to send his email of 11:34am of 21 July 2014 in which he confirmed daily

dosage of solely to Ms Teh and not copy it to Dr Coghlan, a clinician who was

experienced in AML treatment, or Associate Professor Kuss.

7.33. Of course, the question that Dr Beligaswatte had considerable difficulty in answering

in his evidence was how it had come to pass that he had indicated to Ms Teh that

Ms Crannage’s treatment would be twice daily and why he in effect gave his

imprimatur to the suggestion in Associate Professor Lewis’ originating email that it

would be twice daily administration when he had prescribed only once daily

administration for Mr McRae. This set of circumstances, together with the manner in

which consolidation chemotherapy was prescribed for other affected patients, fuelled

the impression that in prescribing consolidation chemotherapy some physicians who

lacked familiarity with the AML disease would follow what virtually amounts to a

chemotherapy recipe without regard to scientific principle or clinical need. As will be

seen, Associate Professor Agnes Yong was a notable exception and that it was as a

result of her intervention that the error was discovered.

7.34. Asked by his counsel Ms Cliff whether, in the light of Ms Teh’s query whether it was

once daily or twice daily, he had given any consideration to contacting Associate

Professor Lewis to clarify, Dr Beligaswatte said that in retrospect he should have done

that, he said:

'I recognised (sic) that that was a significant opportunity to have prevented all of this from

happening and I deeply regret it.' 44

This is an acknowledgement well made, especially having regard to the fact that he had

himself forwarded Associate Professor Lewis’ email which said twice daily. It is very

44 Transcript, page 1434

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difficult for Dr Beligaswatte now to be heard to say that he did not really appreciate the

significance of Associate Professor Lewis’ email when he himself had received it, had

also forwarded it to his colleagues with tacit approval and had given a set of instructions

to Ms Teh in respect of Ms Crannage’s prescription that aligned with Associate

Professor Lewis’ email. If Dr Beligaswatte had paid proper attention to the contents of

Associate Professor Lewis’ email either he would have realised that he may have

incorrectly prescribed once daily chemotherapy for Mr McRae the day before, or have

concluded that Associate Professor Lewis had got it wrong when he had specified twice

daily in his email.

7.35. When Dr Beligaswatte was asked about those matters he had no sensible explanation.

He said that he did not know why he had correctly inserted twice daily in the email to

Ms Teh regarding Ms Crannage’s prescription45. He said in his evidence that he had

specified twice daily cytarabine in respect of the Ms Crannage template ‘for reasons

that I can’t fathom’46. He agreed that Associate Professor Lewis’ email should have

rung alarm bells with him47, but said that he could not explain why it did not ring those

bells and suggested that it may be that he wrote BD ‘reflexly’48. Puzzlingly,

Dr Beligaswatte said that he could not recall whether he used the content of Associate

Professor Lewis’ email to specify the requirements for Ms Crannage’s template49. But

the tragic irony was that Dr Beligaswatte had it right in his first email to Ms Teh. There

are two possible reasons that come to mind as to why Dr Beligaswatte wrote BD on his

instruction to Ms Teh in respect of Ms Crannage’s prescription. Either he derived this

from the document that Dr Damin had sent him on the Friday, or he derived it from

Associate Professor Lewis’ email of the Saturday. I suppose there are other hidden

possibilities. In the event it is not necessary for me to make any finding about the source

of Dr Beligaswatte’s BD instruction. The plain fact of the matter is that this instruction

was correct and Ms Teh’s query should have resulted in its accuracy being established.

7.36. Dr Beligaswatte did say that if he had gained any sense that there was a discrepancy

between the Associate Professor Lewis email and the protocol he would have contacted

Associate Professor Lewis50. So much is obvious and the same applies of course if he

45 Transcript, page 1549 46 Transcript, page 1649 47 Transcript, page 1645 48 Transcript, page 1646 49 Transcript, page 1644 50 Transcript, page 1678

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had sensed, as he should have, that there was a discrepancy between what he had

prescribed Mr McRae on the one hand and on the other the content of Associate

Professor Lewis’ email and the content of his own email to Ms Teh.

7.37. Dr Beligaswatte was naturally cross-examined about his knowledge of what the usual

requirements in cytarabine consolidation chemotherapy were having regard to the fact

that a similar protocol had called for twice daily administration as seen from the pre-

existing FMC protocols to that point. At one point during the course of his evidence

Dr Beligaswatte was asked by Mr Griffin QC in effect whether he had thought that a

once daily dosing on days 1, 3 and 5 for consolidation therapy was clinically unusual,

to which Dr Beligaswatte suggested that although he could not remember what he had

thought at the time, there had been a number of changes in the protocol including the

incorporation of idarubicin, the fact that all patients from the age of 56 were being

treated with the one regimen and that there was also a reduction in the actual dosages

of cytarabine to 1g/m2, thereby providing an explanation as to why the frequency of

administration of cytarabine may also have been altered. He added:

'So for a junior consultant seeing something that I had not seen before doesn't necessarily

mean that it's something that couldn't be what was intended. So I don't recollect my

reaction to this protocol at that time but the fact that I had not seen it before doesn't

necessarily mean that it wasn't something that was intended. So I referred to the authorised

protocol. ' 51

I think Dr Beligaswatte was suggesting there that he was not an AML expert and was a

junior consultant, but I do note that throughout the course of his evidence

Dr Beligaswatte was nevertheless prepared to pontificate extensively about the

scientific principles underlying cytarabine therapy. The fact was, of course, that there

had never been, as far as the evidence establishes in this case, a consolidation

chemotherapy regimen in which cytarabine was administered on alternate days but only

once per day. The evidence that I heard and that I will deal with in due course very

much suggests that such a pattern of administration would be scientifically wrong in

principle and could have a tendency to render the therapy less efficacious.

7.38. There are other matters upon which Dr Beligaswatte was questioned and had difficulty

in answering. There was the difficulty occasioned by the fact that when ultimately he

responded to Ms Teh in his email of 11:34am on Monday 21 July 2014 in which he

51 Transcript, page 1552

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confirmed once daily administration, thereby locking in the error, he did not include in

its recipients those persons to whom that day he had sent his earlier emails and to whom

Ms Teh had sent her email querying Dr Beligaswatte’s dosage frequency. Had he done

so, he may have alerted those recipients to the error. In this regard Dr Beligaswatte

rejected the suggestion that a possible explanation for this was that he had been

embarrassed in effect by the fact that what he had thought was his error had been

exposed by a pharmacist.

7.39. Nevertheless, it is odd that Dr Beligaswatte, knowing that an issue had been raised by

a pharmacist querying his initiating email and its content, would not have wanted to

disabuse his colleagues, Dr Coghlan and Associate Professor Kuss in particular, of any

doubt or misgivings that they may have gleaned from the email chain themselves. The

fact is, however, that once he instructed Ms Teh that the dosage for Ms Crannage was

once daily it should have signified in his mind that the content of Associate Professor

Lewis’ email of 19 July was not correct and also that Drs Coghlan and Associate

Professor Kuss had so far been misled by his own email in respect of the same issue

regarding frequency of administration. The irony of course is that in his original email

he had not been in error regarding that issue.

7.40. In cross-examination by Mr Griffin QC, Dr Beligaswatte asserted that no-one had

alerted him to the fact that there was any special process to be followed in the adoption

of protocols apart from preparing the templates for use at FMC according to whatever

source was to be followed52. In the event Dr Beligaswatte would not provide to anyone

at the FMC a source document other than the updated and erroneous RAH protocol

which was provided to FMC on 21 July 2014 when he forwarded the originating email

from Mrs To of 16 July 2014. In this regard Dr Beligaswatte said this:

'I am not sure that I would have thought that there would be any such document at all,

these were protocols that were developed by AML experts who have access to information

such as trial data that are coming out even before publication. Now, whether or not those

discussions were formalised in a document between the experts or not, I have no idea. So,

all I knew was there was this new thinking and that that was prompting development of a

new approach or a new protocol range, but I had no other source, and in fact for me I am

interested in what the RAH's final decision was, the outcome of those deliberations. I was

not going to go and look at that protocol to try to debate with Professor Lewis as to the

52 Transcript, page 1545

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appropriateness of those protocols, all I wanted to know was what did the experts actually

end up deciding, and for me that was what the RAH protocols showed.' 53

7.41. Dr Beligaswatte conceded that this was not the way that the matter should have been

undertaken54, adding that he was not aware of any process for protocol development as

he had never been involved in that sphere either at the RAH or the FMC.

7.42. In his evidence-in-chief, Dr Beligaswatte said nothing about the important issue as to

whether or not in advocating the adoption of the RAH protocol at the FMC he had

spoken to Associate Professor Kuss about the matter given that she was the head of the

Haematology Department at the FMC. However, Mr Trim QC for Associate Professor

Kuss extracted an acknowledgement from Dr Beligaswatte that during the course of a

performance review in April 2014 he had told Associate Professor Kuss that he would

like to harmonise AML protocols between the FMC and the RAH so that FMC patients

would be eligible to participate in trials conducted at the RAH and would not be

disadvantaged in relation to transplants which were conducted at the RAH55.

Dr Beligaswatte asserted that Associate Professor Kuss responded to this by indicating

that it was a good idea. Ultimately the template that was created at the FMC and which

adopted the RAH protocol was not presented to a clinical meeting56.

7.43. To my mind there was an abundance of opportunities for a reasonably astute man who

had an eye for detail to have considered and identified the dilemma posed by Ms Teh’s

email in conjunction with the other documentation to which Dr Beligaswatte had access

and to have dealt with that dilemma. Unfortunately, Dr Beligaswatte was not that man.

7.44. I now turn to the evidence of Associate Professor Bryone Kuss in relation to her

knowledge of the adoption of the RAH protocol at the time of its adoption. Associate

Professor Kuss is the Head of Clinical and Laboratory Haematology and Genetic

Pathology at FMC. She has an Associate Professorship of molecular medicine and

pathology at the FMC School of Medicine. In respect of her duties at the FMC she was

employed by SA Pathology on a 0.6 FTE basis. Her particular interest within the

haematology sphere is chronic lymphocytic leukaemia. She has been a member of the

ALLG and was a member of the scientific subcommittee of that group in 2014. As the

Head of the Haematology at the FMC her responsibilities included oversight of the

53 Transcript, page 1559 54 Transcript, page 1560 55 Transcript, page 1623 56 Transcript, page 1627

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clinical service. Associate Professor Kuss had a large number of administrative

responsibilities attending to both SA Pathology based administrative and FMC

administrative issues. She was first appointed as a haematology consultant at the FMC

in 2003.

7.45. Associate Professor Kuss was on leave as at 16 July 2014 which was the day on which

Mrs To emailed the updated protocol. She was still on leave on 19 July 2014 which

was the day on which Associate Professor Lewis sent his email setting out the changes

to the protocol including the reference to BD administration. Monday 21 July 2014

was Associate Professor Kuss’ first day back at work from leave.

7.46. In her oral evidence Associate Professor Kuss told the Court that she was aware of the

process that involved written templates for the prescription of chemotherapy at the

FMC. Shortly after she was appointed as a haematology consultant she embarked upon

the task of developing the template process for the Haematology Department. She

performed that function in conjunction with a pharmacist. As at mid-2014 there were

61 templates in place. Associate Professor Kuss explained that within haematology it

was impossible for every clinician to be abreast of all literature within that discipline

and that for that reason it was considered advantageous to have a lead clinician in each

of the major disease areas including acute leukaemia. The lead clinician for each of

those sub categories was responsible for leading changes in protocol development and

for the management principles for those particular diseases.

7.47. According to Associate Professor Kuss no written protocol development process was

in place at the time of the events with which this inquest is concerned. However,

Associate Professor Kuss tendered to the inquest a document that she has subsequently

prepared in connection with the Marshall review57 and which sets out the process that

she says was understood and in place as at July 201458. The document sets out a staged

process for protocol development that includes the following parameters namely, the

tabling by a consultant at a ward meeting of a proposal for protocol development, the

discussion of the proposal with nursing, medical and pharmacy staff, the reaching of an

agreement to proceed with the development and the primary consultant working with a

pharmacist in conjunction with ‘source documents’ that included published literature,

57 An independent review, led by Professor Villis Marshall Chair of the Board of the Australian Commission on Safety and

Quality in Health Care (ACSQHC), was conducted into the incorrect dosing of cytarabine to ten patients with Acute Myeloid Leukaemia (AML)

58 Exhibit C50, page 172

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presentations and trials evidencing the rationale for the protocol development. The

pharmacist would then provide a completed draft protocol to the primary consultant for

review. In addition the agreed draft protocol would then be emailed to all consultants

and to the senior nursing manager for comment. The comments would then be provided

to the pharmacist and a finalised protocol would be reviewed by the primary consultant

and then saved as a template on the haematology server. The relevant persons would

then be notified that the protocol was ready for use.

7.48. This elaborate procedure was not reduced to writing at the time the FMC was

contemplating adopting the RAH protocol, but Associate Professor Kuss told the Court

that the procedure was nevertheless in place. It is perplexing how a process as detailed

as this was meant to be absorbed by clinical staff without any written guidelines. All

the more so in the case of a person such as the relatively inexperienced Dr Beligaswatte.

It is no wonder the process was not followed at the FMC in this instance. In reality

none of these requirements, if they existed at the time, were met except to the extent

that, as Dr Beligaswatte asserted, the need to align the FMC protocol with the RAH

protocol was mentioned at a ward meeting on 16 July 2014. Certainly no source

documentation was provided to the pharmacist. Insofar as any draft protocol was

developed by the pharmacist it would not be emailed to all consultants and the senior

nursing staff for comment. This set of circumstances could owe itself to a number of

possibilities including a lack of experience with protocol development on the part of

Dr Beligaswatte, a lack of knowledge on his part of the requirements or because the

procedures as described by Associate Professor Kuss were ad hoc and inconsistently

understood and applied.

7.49. In her evidence Associate Professor Kuss emphasised that the pharmacists played a

critical role in protocol development and maintenance. She said that they would work

with the senior consultant in the development of the protocol and described the

pharmacists as ‘the keepers’ of the templates. To my mind this overstated the role of

the pharmacist insofar as the pharmacist was only as good as the information that he or

she was provided by a consultant. The same must apply to the chemotherapy

prescription templates that the pharmacists brought into existence. If the consultant

was in error then such an error stood a very good chance of being perpetuated by the

pharmacist in the development of the template. The only rider that would need to be

added here is that insofar as there was any requirement for the pharmacist to satisfy him

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or herself that the source documents underpinning the protocol did in fact support the

protocol, that requirement was not met in this case. As has been seen, the FMC

pharmacist Ms Teh had been given to understand that there was no documentation other

than the RAH protocol.

7.50. Associate Professor Kuss explained that the protocol development process would

normally take several weeks, but if there was a perceived urgency for implementation

it could be accommodated by a shortened process involving the pharmacy and lead

consultant generating the protocol in response to a clinical need. In these circumstances

there would be less discussion within the department overall. The pharmacist would

draft the completed protocol and the protocol would then be placed in a section on the

designated server to be reviewed or confirmed. As indicated earlier, there was in fact

a clinical need in the sense that the patient Ms Crannage was due for consolidation

therapy, but to my mind this circumstance would not have prevented at least some of

the purported checks and balances to have been applied such as the protocol being

verified by a source document and the draft protocol being distributed to all

haematology consultants for their comment and approval. And it was not as if Ms

Crannage was a one-off case to which special clinical considerations applied and one

that would not be replicated down the line.

7.51. Associate Professor Kuss said that as Dr Beligaswatte had only been a consultant at the

FMC for some months, she was uncertain as to whether he would have been familiar

with the protocol development steps that she testified to59. Associate Professor Kuss

did give evidence about Dr Beligaswatte’s performance review of April 2014 and of

Dr Beligaswatte’s stated desire to harmonise the AML protocols across the State so as

to better facilitate access to clinical trials conducted at the RAH and to make the process

of transplantation more seamless60. In her evidence Associate Professor Kuss

confirmed that to her this had sounded like a good idea.

7.52. In cross-examination by Mr Griffin QC, Associate Professor Kuss conceded that she

had been content for Dr Beligaswatte simply to have worked with the pharmacist

Ms Teh to develop a new protocol if they thought one needed to be introduced and that

the protocol would then just be applied at FMC61. She added that Dr Beligaswatte had

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spent two years at the RAH as a Leukaemia Fellow under the tutelage of Associate

Professor Lewis and although he was not appointed as a consultant at that time, he was

functioning as one. She also said that she expected that the pharmacist Ms Teh would

distribute by email a draft template to the other consultants which was the usual

practice62. So, she had worked on the basis that Dr Beligaswatte must have devised the

protocol appropriately with the assistance of Ms Teh63. As far as any expectation that

Ms Teh would distribute the new template to other consultants is concerned, it is

apparent from the email chain that was developed in relation to this matter that although

Associate Professor Kuss was initially included in the chain in which the protocol

changes were contemplated, and in which Ms Teh had raised a query about whether the

frequency of dosage was once daily or twice daily, Associate Professor Kuss did not

receive anything further from Ms Teh nor from Dr Beligaswatte in the nature of a

protocol or template draft.

7.53. Associate Professor Kuss accepted the proposition that where a question of

inconsistency or otherwise had been raised in relation to the accuracy of a proposed

protocol, the consultant in the case, Dr Beligaswatte, ought to have approached either

Associate Professor Lewis or have gone to the primary source documents himself to

ascertain whether the protocol to be adopted was correct. Associate Professor Kuss

added that although in her view the M15 study did not represent a primary source

document because it related to a trial, she would have expected Dr Beligaswatte to have

raised any question of inconsistency with Associate Professor Lewis. In any event she

said that she would disapprove of a consultant simply referring to the RAH published

protocol and assuming that it must be right because it was on the RAH website64.

7.54. It is difficult to agree with Associate Professor Kuss’ characterisation of the M15

protocol as simply representing a trial document and for that reason was not a primary

source document. Although it was promulgated in anticipation of a trial, it nevertheless

represented the manner in which consolidation therapy in respect of the elderly was

going to be administered at the RAH. The RAH protocol, save for the error, had been

based on it. In any event, as indeed conceded by Associate Professor Kuss, if the

document had been consulted then it would have confirmed that the suggestion that

cytarabine ought to be administered only once daily did not conform with the document

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and therefore needed to be corrected and exposed as an error. This is obviously so

regardless of whether the ALLG M15 pilot study could be characterised as a ‘source

document’ or not.

7.55. As I have mentioned Associate Professor Kuss was the Head of the Haematology

Department at the FMC. She was in fact the primary haematology consultant for

Ms Crannage. Ms Crannage had been placed under Associate Professor Kuss’ care

when the latter had been on ward duty. It was Associate Professor Kuss who had been

responsible for the prescription of Ms Crannage’s induction chemotherapy65. Associate

Professor Kuss had delegated the responsibility for creating the new template for AML

consolidation chemotherapy to Dr Beligaswatte and stated that she was not involved in

that process66. Associate Professor Kuss said that she had left it to Dr Beligaswatte and

Dr Coghlan to implement the proposed consolidation round for Ms Crannage. She said

that she had been on leave and had discussed Ms Crannage’s management with

Dr Beligaswatte. At the time she returned from leave she was not aware of

Ms Crannage’s current clinical status and therefore considered it not appropriate for her

to be prescribing chemotherapy without her actually seeing the patient.

7.56. Associate Professor Kuss was not familiar with the document that Dr Damin had

provided to Dr Beligaswatte. This of course was the document on which it was

stipulated that twice daily dosing was the required frequency of administration and

which had been provided by Associate Professor Lewis to Mrs To in the first instance.

7.57. As to the email chain of 21 July 2014, Associate Professor Kuss’ first day back at work

from leave, she said that she did not recall reading the 9:08am email of Dr Beligaswatte,

but would have read it within a few days of 21 July 2014. She said that she did not

recall the 10:15am email of Ms Teh. In cross-examination by Mr Griffin QC, Associate

Professor Kuss stated that she did not necessarily read the 21 July 2014 emails ‘in real

time’67 and that the email exchange was probably 24 hours or so old by the time she

read it. Associate Professor Kuss also said in her evidence that she did not read

Associate Professor Lewis’ email in which the twice daily frequency was mentioned by

him and of course that would mean that she did not read it when it was circulated

directly to her by Associate Professor Lewis on 19 July 2014 nor when it was forwarded

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to her with Dr Beligaswatte’s 21 July 2014 email in which he also mentioned twice

daily administration in respect of the treatment of Ms Crannage, one of Associate

Professor Kuss’ patients68.

7.58. Of course, Associate Professor Kuss was not copied into and did not see

Dr Beligaswatte’s ultimate email in which he told Ms Teh exclusively that it was to be

a daily dose of cytarabine.

7.59. Associate Professor Kuss was asked by Mr Griffin QC in cross-examination what she

would have done if she had been made privy to Ms Teh’s being told by Dr Beligaswatte

that it was only once daily administration. To this Associate Professor Kuss said that

this would be speculation. She said:

'It's difficult for me to say now how I would have reacted to that when I didn't really pick

up on the previous - the lower emails. I didn't read Associate Professor Lewis's email and

I don't believe - it's difficult for me to say exactly how I would have responded to that. I

suspect I may have questioned things further, but I did not. ' 69

However, she agreed that she would not need to be a doctor to identify from the email

chain that Dr Beligaswatte had said two conflicting things to Ms Teh and agreed that if

she had picked up on that she would inevitably have queried Dr Beligaswatte’s intent.

She said:

'Yes, if I was paying attention to the full email trail, looking at the whole thing, I would

clearly have contacted both of them and said 'I think there is a concern here'. ' 70

She went on to agree that if she had raised a concern it inevitably would have meant

that the source documentation would have been referred to and that this in turn would

have established that the correct protocol called for twice daily administration. She

agreed that this would have prevented the fiasco that then ensued.

7.60. A letter that Associate Professor Kuss’ solicitor sent to AHPRA for the purposes of that

agency’s investigation was tendered to the inquest. By letter dated 9 June 2016

Mr Geoff Black of Wallmans Lawyers addressed certain questions posed to Associate

Professor Kuss by AHPRA for the purposes of its investigation. That letter asserted

among other things that on her return from leave Associate Professor Kuss had observed

the exchange of emails between Ms Teh and Dr Beligaswatte as a result of which

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Associate Professor Kuss considered that the issue between them, that is to say the issue

regarding whether it was once or twice daily administration, ‘had been resolved’. The

email that had actually given rise to anything that could be described as a resolution of

the issue was of course Dr Beligaswatte’s email of 11:34am on 21 July 2014 in which

he had said that the prescription for Ms Crannage was to be once daily and which was

only sent to Ms Teh. Associate Professor Kuss was not a recipient of that email. When

asked in her evidence as to whether it was correct that having read the exchange of

emails she considered the issue to have been resolved, she said that she believed so71,

although it was in that context that she now asserted that she had not necessarily read

the emails in real time. In my view, regardless of when she read the email exchange,

or to what extent she read it, Associate Professor Kuss could not possibly have regarded

the issue as resolved without having seen Dr Beligaswatte’s email to Ms Teh not copied

to her. In the course of her evidence before the Court she was asked by me:

'Q. … So how then was the issue resolved in your mind when you returned from leave,

when you did not actually get copied into Dr Beligaswatte's reply that it was once

daily.

A. That's a very good point. Once again, I'm uncertain as to whether I read that at a

subsequent date, and, because there further email exchanges, and whether it was

included in that. And I believe that if there was a problem, that they would've come

to me and discussed it further; and as I received no further information and saw

nothing querying this particular thing any further, I presumed the questions were

resolved between the consultant and the pharmacist. ' 72

The difficulty with the suggestion that the issue had been resolved in Associate

Professor Kuss’ mind is that there had never been a protocol prior to 2014 that had

called for the administration of cytarabine once daily on days 1, 3 and 573. She agreed

with the proposition that an experienced haematologist, that is to say one who has had

experience in the treatment of AML, ought to have detected that a protocol that called

for once daily administration on days 1, 3 and 5 was highly unusual and that she would

have expected an experienced haematologist to query whether it was correct74. In

particular, she asserted in her evidence that if she had been called upon to deliver such

a consolidation round she would have queried it because it would be different and in

pure pharmacokinetic terms it would be unusual and so unusual that she would query

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whether it was right75. So, in my opinion whatever resolution there had been, it would

and should have smacked of error. If the true nature of the resolution had been revealed

to Associate Professor Kuss, it is likely that it would have been viewed by her as a

questionable resolution at best and a deeply flawed resolution at worst. Thus in my

view any resolution in favour of once daily administration should have triggered in

Associate Professor Kuss’ mind a legitimate enquiry as to whether the issue had been

resolved correctly or not. All that said, Associate Professor Kuss asserted in her

evidence that Dr Coghlan told her at some unspecified point that he had seen the

protocol and had himself thought that the protocol had reflected the RAH’s intention as

the once daily administration was directly from the RAH protocol. Associate Professor

Kuss’ evidence about this was vague and I am not certain that Dr Coghlan gave any

such reassurance to Associate Professor Kuss at the time of Ms Crannage’s treatment.

I think it more likely that any such conversation may have occurred later.

7.61. In short, I do not believe that Associate Professor Kuss came to any understanding that

an issue as between once daily administration as against twice daily administration had

been resolved in July 2014. I think it more likely that for a significant period of time

Associate Professor Kuss existed in blissful ignorance of the whole issue.

7.62. Also in that letter to AHPRA Mr Black on Associate Professor Kuss’ behalf detailed

her understanding of the circumstances that led to the development of the protocol and

pointed out that she had been on leave between 5 July and 20 July 2014. Dealing with

the email exchange between Ms Teh and Dr Beligaswatte on Monday 21 July 2014, the

letter argues that Associate Professor Kuss had not been asked to comment upon nor

address any specific issue raised in the email that Associate Professor Lewis had written

on 19 July 2014. That email had not been flagged specifically for Associate Professor

Kuss’ attention having regard to the fact that the RAH sends group emails of this type

regularly to the same multiple recipients without requirement for action or comment.

7.63. A further assertion in the Wallmans letter is to the effect that on the face of it a daily

dose of cytarabine did not stand out as being incorrect to Associate Professor Kuss.

The difficulty with that of course is her evidence as already seen about her

understanding of pharmacokinetic principles. It was at least questionable regardless of

whether a daily dosage could be immediately flagged as being manifestly incorrect. On

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the whole I do not believe that Associate Professor Kuss really digested the email

exchange of 21 July 2014.

7.64. As to the assertion that on the face of it a ‘daily dose’ did not stand out as being incorrect

to Associate Professor Kuss, the point also has to be made, as it was made to her in

cross-examination by Mr Griffin QC, that even though strictly speaking that is valid,

the point is that this was a once daily dose administered not daily in the sense of every

day but on alternate days. When asked as to why she had not pointed this dichotomy

of administration out to AHPRA, she said ‘I cannot say’76. She said it was not a

deliberate avoidance of the issue. She then said that she believed that once daily

administration on alternate days ‘should have stood out’77.

7.65. Finally, as far as the AHPRA letter is concerned, an assertion in the letter that Ms Teh

had distributed the protocol to the relevant consultants and registrars prior to 21 July

2014 was simply not correct. In her evidence Associate Professor Kuss acknowledged

that she now believed that assertion not to have been correct.

7.66. When exposed to the cold stare of cross-examination in the course of the inquest, many

of Associate Professor Kuss’ excuses that were articulated in the Wallmans letter fell

to the ground.

7.67. I find that any faith that Associate Professor Kuss had that Dr Beligaswatte in

conjunction with pharmacy staff would satisfactorily and accurately promulgate the

adoption of the RAH protocol and do so without her oversight was misplaced. I do not

say that just with the wisdom of hindsight. Associate Professor Kuss knew that there

were procedures that needed to be adhered to. I accept Dr Beligaswatte’s evidence that

he was not completely au fait with those procedures. Associate Professor Kuss could

not legitimately have assumed otherwise and a close eye should have been kept on

Dr Beligaswatte and his activities in respect of the protocol alteration.

7.68. Thus to my mind Associate Professor Kuss was dilatory when on 21 July 2014 she

failed to read carefully or read at all the email chain that Dr Beligaswatte initiated at

9:08 that morning. Regardless of whether or not Associate Professor Kuss should have

read Associate Professor Lewis’ email of 19 July 2014 or even Mrs To’s email of

16 July 2014, a comparison which of itself would have revealed the discrepancy

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between the protocol and Associate Professor Lewis’ description of the new protocol,

she should have read Dr Beligaswatte’s email at the time of its receipt. I say that even

allowing for the fact that 21 July 2014 was her first day back at work. The circulation

of the email was much more restricted to FMC haematology staff, including herself and

Dr Coghlan. To my mind Associate Professor Kuss should have carefully read and

have understood Ms Teh’s query about whether it was once or twice daily. To my mind

it was incumbent on her to have identified the conflict and to have intervened in its

resolution. Indeed, as Associate Professor Kuss herself has alluded to, the issue did

require resolution and in my opinion Associate Professor Kuss as the Head of the

Haematology Department should have ensured that the issue was resolved satisfactorily

and correctly.

7.69. Associate Professor Kuss also gave evidence concerning the process that needed to be

followed in order to author a protocol given that the process was not documented at the

time with which these events are concerned. She told the Court that Dr Beligaswatte

had not himself created a chemotherapy protocol template and that she had not told him

that there were certain processes in place in relation to the development of protocol

templates78. To my mind, Associate Professor Kuss should have ensured that

Dr Beligaswatte was informed of the necessary process and ensured that he followed

it.

7.70. The other matter worthy of note in Associate Professor Kuss’ evidence was that she

rightly suggested that email chains such as that of 21 July 2014 were an unsatisfactory

method of conducting important communications79. It is hard to disagree, especially

when the recipients of those emails choose not to read them.

7.71. In the course of her evidence before the Court, Associate Professor Kuss was asked the

following question by her counsel Mr Trim QC, and gave the following answer:

'Q. Is there anything you'd like to say about the failure of Flinders Medical Centre to

detect the error that had occurred at the Royal Adelaide Hospital in respect of the

protocol.

A. Yes, thank you for the opportunity. It was deeply concerning and with deep regret

that the processes that I had put in place, that I thought were safe, that were

considered to be rigorous by current standards, failed us in this instance and resulted

in an error involving five patients treated at Flinders Medical Centre. That was clearly

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never an intended error and we deeply regret the anxiety and the angst going forward

that this has caused our patients and we are continuing to try to improve on those

processes and avoid any further possibility of error.' 80

7.72. I turn now to the evidence of Dr Coghlan in respect of this topic. Dr Coghlan is a

member of the ALLG and has an interest in clinical trials. He told the Court he was not

involved in the treatment of any of the patients in question, and I take it that that would

include Ms Crannage. I do not understand from Dr Beligaswatte’s evidence that

Dr Coghlan had any particular involvement in her treatment. In his evidence

Dr Coghlan did explain that he has had considerable experience with the AML disease

and is familiar with the principles underlying consolidation chemotherapy for that

disease.

7.73. Dr Coghlan told the Court that in July 2014 he had been aware of a plan to align

protocols as between the RAH and FMC but did not see the supporting documentation.

He said that they were always hesitant about adopting a protocol without a written

published reference and that to adopt a protocol that was based on a consensus and not

based on published data was always ‘somewhat uncomfortable’. However, he observed

that in this instance the RAH had adopted the protocol and that they were the leading

institution in relation to acute leukaemia. As well, Associate Professor Lewis was one

of the consensus group within the ALLG and he formed part of the steering committee

in regard to acute leukaemia management in ALLG. Dr Coghlan said that it therefore

seemed reasonable for the FMC to accept a template that the RAH had provided.

7.74. In his evidence-in-chief Dr Coghlan said that he did not recall receiving the email from

Mrs To of 16 July 2014 even though he was one of the recipients. Asked as to the

reason why he would not have a recollection of that he said that he had last worked at

the RAH in 1986 and for reasons that he had never been able to ascertain he was still

on the mailing list of the Central Adelaide Local Health Network which operates the

RAH. He said he received five to ten emails a day and his practice essentially was to

ignore them. One wonders whether it ever occurred to Dr Coghlan that he was possibly

being sent these emails in his capacity as an employee of SA Pathology as were the

haematologists at the RAH or had received them as a member of a wider haematological

community. In any event he said that for the same reason he had no recollection of

reading the email of Associate Professor Lewis of 19 July 2014. He said he did not

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read it81. In respect of the email of 21 July from Dr Beligaswatte to Ms Teh, Dr Coghlan

suggested that he would have received it and would have read it as the email was

internally generated within the FMC. However, he had no specific recollection of it.

The same applied in relation to Ms Teh’s emailed response which questioned

Dr Beligaswatte’s assertion that Ms Crannage’s regimen required BD administration.

He said that all the consultants would be copied into any email discussion regarding

protocols and their implementation so he would have received this as part of that

process. However, he said that the email required no action from him. He asserted that

the same applied to Dr Beligaswatte’s ultimate email in which he stated to Ms Teh that

it was a daily dose of cytarabine that was required. He said that this did not involve

any action or response from him, although I observe of course that that particular email

was not sent to anyone other than Ms Teh herself. I therefore infer that neither

Dr Coghlan nor Associate Professor Kuss received it or saw it on 21 July 2014.

7.75. In other words Dr Coghlan said that although he would assume that he would have read

correspondence pertinent to FMC in relation to the adoption of a protocol, he did not

pay any attention to any of these emails as they did not require any action from him.

This to my mind represents an abdication of responsibility. One would have thought

that given the fact that the email chain contained differing versions of what an important

chemotherapy protocol required, ‘action’ such as intervening in the discussion would

have been called for. The same applies to Associate Professor Kuss.

7.76. As to whether the Dr Beligaswatte/Ms Teh exchange would have raised an alarm bell

with him due to the inconsistency between what the doctor had prescribed and what the

protocol had said, Dr Coghlan said that it was a difficult question to answer. He then

provided the Court with an expose on the properties of cytarabine and suggested that if

one thought that the ALLG were moving to a once daily regime because of toxicity

issues and that this reflected a form of compromise relating to efficacy versus potential

toxicity, one would not necessarily immediately leap to a conclusion that there had been

an error in the protocol82. That said, Dr Coghlan acknowledged that he had never seen

a regime involving once daily dosage even in elderly AML sufferers83. But he said that

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he would not immediately have leapt to the conclusion that once daily represented

underdosing84.

7.77. As against this, however, in 2015 after the error was discovered Dr Coghlan engaged

in an email exchange with Dr Beligaswatte in which Dr Coghlan pointedly suggested

that Dr Beligaswatte had somewhat missed the point when Dr Beligaswatte had

claimed that there was no evidence to suggest that giving a smaller dose of cytarabine

per cycle would have adversely affected Mr Higham’s leukaemia control. In his

emailed reply, Dr Coghlan had attempted to pour cold water on that theory and

suggested to Dr Beligaswatte that a once daily on alternate days regime would have

been wrong in principle due to the pharmacokinetic properties of cytarabine. He said

to Dr Beligaswatte, as copied to other haematologists including Associate Professor

Kuss and Associate Professor Lewis without demur from them: ‘…practically the

kinetics have relied on twice daily dosing rather than total dose. The concern I have

with the error in the protocol does not relate to the dose per se but rather the kinetics

of a single dose’85. This was an accurate observation as it aligns nicely with the

independent expert evidence that was adduced in the inquest that cytarabine is a

schedule-dependent drug the pharmacokinetics of which are such that it acts at only one

phase of the leukaemic cell cycle. The ‘concern’ that Dr Coghlan had, as expressed in

that passage, was not misplaced. In his evidence before the Court, Dr Coghlan

endeavoured to bat this all away by saying that his challenging of Dr Beligaswatte’s

assertions was in the nature of an ‘academic discussion’86, but in my opinion the

emailed observation reproduced above more accurately reflects Dr Coghlan’s mindset

in relation to the significance of the error than anything he said in his evidence before

the Court.

7.78. In any case Dr Coghlan’s argument that once daily administration would not

necessarily have led to a conclusion that it represented underdosing, or that the protocol

was in error, also somewhat missed the point. The point is that if Dr Coghlan had seen

Dr Beligaswatte’s email suggesting twice daily, had then seen this being queried by

Ms Teh and had noticed that there had been no resolution to the issue, this set of

circumstances ought to have been enough to have rung the ‘alarm bells’. It was the

inconsistency between the approaches of Dr Beligaswatte and Ms Teh that was an issue

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that required resolution. Clearly the resolution did not make its way to Dr Coghlan.

Dr Coghlan said, and I accept this evidence, that putting himself in Dr Beligaswatte’s

shoes he would have recognised that what was in the protocol was different from what

Associate Professor Lewis had indicated in his email as far as frequency of dosage was

concerned. He agreed with the further proposition that he would have contacted

Associate Professor Lewis before actioning anything because he would have recognised

a substantial change and would have queried whether there was an error in Associate

Professor Lewis’ email – in other words did Associate Professor Lewis really mean bd?

Dr Coghlan would have clarified the issue with the primary source before administering

therapy to the patient, the primary source in this case being Associate Professor Lewis87.

There seems little doubt that had he done so the error would have been identified.

7.79. In my view the promulgation of the error at the FMC and the RAH could and should

have been prevented if either Associate Professor Kuss or Dr Coghlan had read the

email chain instigated by Dr Beligaswatte on the morning of Monday 21 July 2014,

insofar as it was sent to them, and had contacted Associate Professor Lewis.

7.80. As for Ms Teh’s involvement, she had also received the email chain that

Dr Beligaswatte initiated that included the emails from Mrs To and Associate Professor

Lewis. She was astute enough to observe that there was an inconsistency between the

protocol that had been circulated and Dr Beligaswatte’s instructions that twice daily

dosage for Ms Crannage was indicated. Nevertheless, Ms Teh went ahead with the

creation of the template that was used not only in respect of Ms Crannage’s treatment,

but would also be used in the treatment of others and did so in the knowledge that there

was an issue relating to whether there was once daily or twice daily treatment indicated.

If she had paid close attention to Associate Professor Lewis’ email of 19 July 2014 she

would have seen that the origin of the suggestion that it was twice daily was his. This

would naturally have given greater weight to the notion that twice daily dosing was

required and that the discrepancy may have owed itself to an error within the protocol.

However, any shortcomings on her part are substantially mitigated by the fact that

Dr Beligaswatte who was the instigator of the protocol change had assured her that

there was nothing to support the protocol change save and except for the RAH protocol

itself, and also from the fact that she endeavoured to obtain source material. She was

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also assured by Dr Beligaswatte that everything was proper and that the correct protocol

involved only daily dosing.

7.81. I make the following findings:

• Dr Ashanka Beligaswatte was responsible for the introduction of the error into the

FMC protocol template.

• Dr Beligaswatte unreasonably failed to provide the pharmacist Ms Teh with a

document that he could or should have obtained supporting the changes to the

protocol. Having himself sought out and obtained a suitable document from Dr

Damin, it was perverse not to have supplied it to Ms Teh when she asked him for

documentation supporting the protocol template she was asked to create. If Ms Teh

had received that document, the protocol error would have been identified and the

consolidation therapy for all of the affected patients would not have miscarried.

• Dr Beligaswatte failed to appreciate the significance of Associate Professor Lewis’

email of 19 July 2014. In this regard, he failed to identify or appreciate the

significance of a discrepancy between the content of Associate Professor Lewis’

email and the content of the new RAH consolidation chemotherapy protocol that

had been circulated by Mrs To on 16 July 2014.

• Dr Beligaswatte also failed to appreciate that his prescription for Mr McRae that he

had completed on 18 July 2014 conflicted with the content of Associate Professor

Lewis’ email of 19 July 2014 and his own email at 9.08am on 21 July 2014.

• Neither Associate Professor Kuss nor Dr Coghlan came to any realisation that

through the receipt of emails sent to them, there was an issue as to whether or not

twice daily administration or once daily administration of Cytarabine was the

appropriate frequency of dosage. They should have appreciated that and have

intervened.

• Dr Beligaswatte, having regard to his relative inexperience, should not have been

assigned the task of introducing the RAH protocol into the FMC protocol template

without close supervision by Associate Professor Kuss or her nominee if she was

unavailable to do so. The result was that proper procedures for the alteration of

FMC protocols were not adhered to.

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• Dr Beligaswatte was not properly supervised in his carrying out of the task of

introducing the RAH protocol into the FMC protocol template. I find that the

responsibility of ensuring that Dr Beligaswatte followed all of the necessary

requirements was that of Associate Professor Kuss.

8. The patients are administered consolidation chemotherapy pursuant to the

erroneous protocol

8.1. In this section I will discuss the circumstances in which the four deceased patients were

administered consolidation chemotherapy pursuant to the incorrect protocols that had

been promulgated at both the RAH and the FMC in July 2014.

8.2. In a separate section of these findings I will deal with the patients’ circumstances upon

the discovery of the error in January 2015.

8.3. In a further separate section I will deal with the issue as to whether or not the

consolidation chemotherapy that was not in accordance with the intended protocol had

any effect on the remission status or duration of each patient or of their longevity.

8.4. I will deal with the circumstances surrounding the administration of consolidation

chemotherapy to Mr Knox. Mr Knox’s circumstances were different insofar as his

second cycle of consolidation chemotherapy occurred following, and in spite of, the

discovery of the error at the RAH.

8.5. I will deal with each of the circumstances surrounding the administration of

consolidation chemotherapy to the four deceased persons in turn.

8.6. The circumstances relating to the underdosing of Mrs Pinxteren

On 12 November 2014 Mrs Pinxteren presented at the RAH where she was seen by

Dr Devendra Hiwase. She presented with symptoms that gave rise to suspicion of a

blood disorder. Following blood tests and a bone marrow biopsy Mrs Pinxteren was

diagnosed with AML.

8.7. Following induction chemotherapy which was delivered unremarkably and in

accordance with the correct induction chemotherapy protocol, Mrs Pinxteren entered

remission. There is no suggestion that the induction therapy was anything other than

appropriate or that it was not properly administered.

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8.8. Following her induction therapy as a result of which Mrs Pinxteren achieved remission,

it then became necessary for consideration to be given to consolidation chemotherapy.

This issue was considered by Dr Hiwase.

8.9. Before turning to the circumstances surrounding the delivery of consolidation

chemotherapy to Mrs Pinxteren it is necessary to say something of Dr Hiwase.

Dr Hiwase obtained his basic medical qualifications in India in 1991 and obtained a

specialist qualification also in India in 1995. That qualification was a Doctor of

Medicine. Dr Hiwase underwent further training in India and he worked both in India

and in Oman as a registrar in haematology and transplant medicine. He came to

Australia in 2001. Between 2001 and 2003 he worked at the Westmead Hospital in

Sydney as a haematology registrar. Following this and until 2005, he worked at the

Alfred Hospital in Melbourne as a senior registrar and transplant fellow. Dr Hiwase

obtained his specialist qualifications in haematology in Australia in 2004. He is a

Fellow of the Royal College of Pathology of Australasia as well as a Fellow of the

Royal Australian College of Physicians. He is a Doctor of Philosophy in chronic

myeloid leukaemia. This was awarded in 2010 through the University of Adelaide.

8.10. Dr Hiwase is a consultant haematologist working fulltime at the RAH. As such he is

an employee of SA Pathology. His particular area of interest within the general field

of haematology is in chronic myeloid leukaemia which is a different illness from AML,

the subject disease in this inquest. His current research focus relates to myelodysplastic

syndrome (MDS). Dr Hiwase’s responsibilities have included the care of patients with

haematological malignancy.

8.11. As at July 2014 Dr Hiwase had been involved in the development of protocols at the

RAH. He was involved in the delivery of the protocol for MDS. He had not been

involved in the development of any protocol at the RAH relating to AML. He told the

Court that the lead haematologist for AML was Associate Professor Lewis and that

Lewis had responsibility for developing protocols in respect of that disease stream.

8.12. Dr Hiwase is a member of the Chemo-Governance Committee which is a State-wide

committee. He is a member of the ALLG and in July 2014 was a member of the ALLG

subcommittee for AML and MDS. Although he was a member within those two sub-

groups within the ALLG, he states that he was not particularly heavily involved in

ALLG activities in 2014. However, prior to July 2014 he had been aware of a

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discussion among the membership of the ALLG concerning the reduction of cytarabine

dosage in the consolidation phase of chemotherapy for elderly AML patients.

8.13. Dr Hiwase gave oral evidence in the inquest. He told the Court that he was not an

expert in relation to the pharmacokinetics of the drug cytarabine but understood that

cytarabine had been used for a very long time in the treatment of AML. When asked

whether he had any understanding of the pharmacokinetics of cytarabine he said ‘not

much’88. Dr Hiwase told the Court that he knew of the pre-existing AML aged based

consolidation chemotherapy. He said that prior to the July 2014 change in the protocol

in respect of AML, elderly patients had been given cytarabine twice daily on days 1, 3

and 589. Dr Hiwase said that he had no recollection of using the pre-existing twice daily

dosing of cytarabine on alternate days as a treatment regimen for the elderly, but that

he may have used it.

8.14. In his evidence Dr Hiwase said that he had been aware of the nature of the consolidation

regimens and the fact that there was more than one. He knew that some involved daily

cytarabine administration. He told the Court that he understood that there had been a

debate among haematologists as to the appropriate treatment options for elderly patients

suffering from AML. In particular he understood that reducing the dose of

chemotherapy specifically in the elderly and frail or vulnerable patients was said to be

due to the complications caused by the chemotherapy and to the need to reduce the dose

of chemotherapy for that reason. He told the Court that he did not identify any error in

the consolidation chemotherapy regimen that he would prescribe for Mrs Pinxteren.

8.15. Dr Hiwase was naturally asked about the emails of Mrs To and Associate Professor

Lewis of 16 and 19 July 2014 respectively. Dr Hiwase was one of the many recipients

within Health. It will be remembered that Mrs To’s email attached the new uploaded

AML protocol, that is to say the erroneous protocol, whereas Associate Professor

Lewis’ email described twice daily administration which contradicted the content of the

new uploaded AML protocol. In cross-examination by Mr Griffin QC Dr Hiwase

agreed with the proposition that an email subject line containing reference to a new

AML protocol being uploaded would have attracted his attention90. When asked

whether it was reasonable to think that because some of his work involved treating

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people with AML he would have taken notice of an email that spoke of a new AML

protocol, Dr Hiwase said that this was possible. However, he said that he could not say

whether it was likely that he would have done so, depending on the time of the day that

the email came in and whether he was conducting a clinic or seeing a patient. He

suggested that emails such as these ‘just go in the back of your mind’91. That said,

Dr Hiwase agreed that he knew that a new protocol had been discussed within his unit.

He agreed that it was possible that he would have noted Associate Professor Lewis’

email as being relevant92.

8.16. It is obvious that if prior to treating Mrs Pinxteren Dr Hiwase had read both emails as

well as the protocol attached to Mrs To’s, and had compared their content, he would

have noticed the dosage frequency discrepancy between the protocol and Associate

Professor Lewis’ email. When asked by me as to what he would have done in those

circumstances, he said ‘I would have brought it to the attention of the proper

authorities’93. Naturally the proper authorities would have consisted of at least

Associate Professor Lewis. There is no doubt in my mind that had Associate Professor

Lewis been made aware of the discrepancy he would have taken the necessary steps to

rectify the error.

8.17. Dr Hiwase obviously did not at any point in time perform the exercise of comparing

the protocol with Associate Professor Lewis’ email. In dealing with Mrs Pinxteren he

simply followed the erroneous protocol. It did not cross his mind that it was wrong.

8.18. He did not identify any error until he became aware of it at a time after Mrs Pinxteren’s

consolidation therapy treatment in January 2015.

8.19. Asked as to why he would not have identified the error he said that the optimal dose of

cytarabine in the elderly patient had been debated and that the thrust of the debate

concerned the need to reduce the dose of cytarabine. He said that in any case he was

‘looking for a lower dose for Mrs Pinxteren because I was concerned about toxicity in

her case, and when I applied the protocol to the lowest that I can give to her, the 1g, it

didn’t occur to me that time it is wrong’94. Dr Hiwase seemed to be suggesting there

that the underdosing would have been clinically appropriate in any event. In another

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section of his evidence Dr Hiwase also pointed out, as did Dr Beligaswatte in his

evidence, that the new protocol called for the addition of idarubicin whereas the

corresponding alternate daily regimen of administration that had existed prior to the

change did not involve the administration of idarubicin. It is true that the cytarabine

dosage had been reduced from the high dosages that earlier protocols had advised, but

the frequency of dosage was intended to remain the same. The fact that the new

protocol had reduced both dosage and frequency ought to have been a matter that was

questionable in the mind of anyone who had knowledge of the pharmacokinetic

principles underlying the efficacy of cytarabine. The difficulty about that of course was

that Dr Hiwase knew ‘not much’ about that.

8.20. It is against that background that Mrs Pinxteren came to be prescribed and administered

with the consolidation chemotherapy in January 2015.

8.21. Dr Hiwase completed Mrs Pinxteren’s prescription on 12 January 2015. He told the

Court that in doing so he examined the protocol as he did not know the appropriate

prescription off the top of his head. I find that this was the case. Pursuant to that

prescription Mrs Pinxteren underwent her cytarabine treatment on 13, 15 and

17 January 2015. She was only administered once daily cytarabine, and this was

prescribed in accordance with the erroneous RAH protocol. She was also administered

idarubicin. As will be seen in another section, the first two cytarabine administrations

within that cycle preceded the recognition by Associate Professor Yong on 16 January

that there was an irregularity in the prescriptions in relation to another patient, Ms MR,

which led her to identify the protocol error. Mrs Pinxteren’s third cytarabine dose

occurred the day after.

8.22. As things transpired, Mrs Pinxteren did not undergo the usual second cycle of

consolidation chemotherapy due to her failure to recover from the first cycle and also

by virtue of the fact that in early March 2015 she was diagnosed as having relapsed.

8.23. I find that it never occurred to Dr Hiwase that the protocol contained an error and that

once daily administration in the case of Mrs Pinxteren was not in accordance with the

intended regimen of treatment. That said, there really can be no reasonable excuse for

Dr Hiwase failing to identify the discrepancy between the protocol, which he obviously

read at some point in order to prescribe for Mrs Pinxteren, and Associate Professor

Lewis’ email. I do not accept that the period of time between July 2014 when the error

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was identifiable by way of a comparison of the emails, and January 2015 when

Dr Hiwase completed Mrs Pinxteren’s prescription provides an excuse for the

erroneous prescription, although it does to an extent mitigate it. Dr Hiwase, together

with all the other recipients of the emails, was cloaked with knowledge that Associate

Professor Lewis in his email had stipulated twice daily administration. True it is that

the protocol placed on the server was the operative document, but there was material

available in July 2014 from which the error ought to have been identified and corrected.

To my mind all recipients of the two emails who were haematologists had an obligation

to properly consider that material. Not one person did, so Dr Hiwase was not on his

own in that regard. I will later come to the circumstances in which Dr Hiwase became

aware of the error in 2015.

8.24. I should also add here that Dr Hiwase gave evidence that having regard to

Mrs Pinxteren’s age, the fact that she was myelodysplastic at diagnosis and that the

myelodysplasia persisted notwithstanding her remission, in his view the achievement

of remission after induction chemotherapy was the best result that she could have hoped

for. He agreed that the remission of the 31 December 2014 was a good result95. But he

said that Mrs Pinxteren’s period of remission from 31 December 2014 to 2 March 2015

was disappointingly short96.

8.25. When it was suggested by Ms Kereru, counsel assisting, that the duration of

Mrs Pinxteren’s remission of no more than three months may have been due to the fact

that she received only half her dosage at consolidation, Dr Hiwase said that he did not

agree with that completely, but that it was possible. He did say that it was difficult to

maintain remission in elderly patients for a long time and that the disease was more

aggressive in a patient with myelodysplasia97. He summarised his position on this issue

by saying ‘it’s possible, but I don’t know exactly the result, it’s very hard to say’98.

8.26. The circumstances relating to the underdosing of Mr McRae

In May 2014 Mr McRae was admitted to the RAH for treatment. He had already been

diagnosed by way of a bone marrow biopsy as suffering from acute erythroid leukaemia

(AEL) which is a type of AML. AEL can be difficult to treat and in the event there was

at one point some uncertainty as to whether or not Mr McRae had achieved a complete

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remission following induction chemotherapy. However, ultimately clinicians were

satisfied that he had obtained complete remission.

8.27. Mr McRae was administered standard induction therapy. There is no suggestion that

this was not appropriate. That therapy commenced at the RAH on 29 May 2014.

8.28. Thereafter Mr McRae underwent two rounds of consolidation chemotherapy that

occurred in July and September 2014 respectively.

8.29. Both rounds of consolidation chemotherapy were prescribed by Dr Beligaswatte. I

have already referred to the fact that the prescription in respect of the first cycle of

Mr McRae’s consolidation chemotherapy was executed by Dr Beligaswatte on Friday

18 July 2014. Dr Beligaswatte told the Court that in compiling this prescription he

referred to the then current RAH AML protocol which would have been the one that

had been uploaded on 16 July 2014. The prescription was for once daily administration.

As seen already, there is the strange circumstance that on the following Monday in the

email to Ms Teh he would initially suggest in the case of Ms Crannage at the FMC that

twice daily cytarabine administration was called for.

8.30. Mr McRae was administered the first consolidation round on 21, 23 and 25 July 2014

respectively.

8.31. Following the completion of that consolidation cycle Mr McRae had to undergo a

hospital admission for febrile neutropenia which is a recognised complication of

chemotherapy. This condition places a patient at risk of infection. There were other

complications as well. In August 2014 a bone marrow biopsy was undertaken because

of uncertainty regarding Mr McRae’s remission status at that point in time. The

conclusion was drawn that Mr McRae was technically in a morphological remission.

To my mind the evidence demonstrates that this was a reasonable and accurate

conclusion.

8.32. On 29 August 2014 Dr Beligaswatte saw Mr McRae. It was then approximately five

to six weeks since the beginning of the first consolidation cycle. He listed in the notes

a number of complications that Mr McRae was experiencing and Mr McRae’s

intimation that he did not feel that he had recovered well from the previous cycle.

Nevertheless, given that Mr McRae was in an ongoing complete remission but with

erythroblast percentage higher than expected, a plan was formed to move to the second

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cycle of consolidation. However, at that time it appeared that Mr McRae was not yet

feeling up to it.

8.33. On 5 September 2014 a decision was made to proceed with a second consolidation

cycle. Mr McRae was feeling brighter and Dr Beligaswatte discussed the case with

Professor Peter Bardy.

8.34. In the event the second consolidation cycle commenced on 15 September 2014 and was

conducted over that day, 17 September and 19 September 2014. Again once daily

administration occurred. Dr Beligaswatte completed the prescription for that second

cycle again by looking up the RAH AML protocol on the computer.

8.35. At a clinic review on 10 October 2014 Mr McRae seemed to be well. A CT scan of his

chest had shown improvement and his blood counts were reasonable.

8.36. Mr McRae was discharged from hospital on 16 October 2014. It had been decided that

the lenalidomide maintenance therapy, which was the therapy contemplated pursuant

to the ALLG M15 study, would not be implemented in Mr McRae’s case due to his age

as well as his condition and clinical findings.

8.37. It is not necessary to recount Mr McRae’s progress to the point early the following year

when it became apparent that Mr McRae had relapsed. By then Mr McRae’s care had

been taken over by Dr Anya Hotinski who was at that time a registrar. On 27 February

2015 Dr Hotinski wrote to Mr McRae’s general practitioner indicating that due to a

decline in Mr McRae’s platelet count she was concerned that Mr McRae had relapsed.

On 6 March 2015 Dr Hotinski met with Mr McRae, his wife and daughter to inform

Mr McRae that not only was it probable that his disease had relapsed, but also of the

cytarabine administration frequency error that had by then been identified. On 13

March 2015 Associate Professor Lewis accompanied by Dr Hotinski met with

Mr McRae, his wife and his daughter to confirm that Mr McRae’s AEL had in fact

relapsed. The treatment error was also discussed at the same meeting. In another

section and in more detail I shall deal with the circumstances surrounding the events of

February and March 2015 following the discovery of the error, as they relate to

Mr McRae.

8.38. It is evident that Mr McRae’s consolidation chemotherapy was dictated by

Dr Beligaswatte who simply relied in rote fashion on the RAH protocol which had been

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compiled and uploaded in error. It is also apparent that at no point during the currency

of Mr McRae’s treatment did Dr Beligaswatte have any realisation that the protocol

pursuant to which he had been treating Mr McRae was erroneous. This pattern of

ignorance would also be replicated by other clinicians, notably Dr Hiwase in respect of

Mrs Pinxteren, a Dr Naranie Shanmuganathan in respect of Mrs Bairnsfather and

another patient Ms MR, and a Professor Alex Gallus in respect of Mr Higham.

8.39. I have earlier referred to the fact that whereas on Friday 18 July Dr Beligaswatte had

prescribed once daily administration for Mr McRae, he then effectively, in the first

instance, prescribed twice daily for Ms Crannage on the following Monday. If the

initial suggested Crannage prescription had been identified as being correct, as it should

have been, there is a strong possibility that Mr McRae’s prescription for once daily

administration would have been corrected and that his erroneous consolidation

chemotherapy during both cycles, the first of which commenced on the afternoon of the

Monday, would have been avoided altogether.

8.40. The circumstances relating to the underdosing of Mrs Bairnsfather

Mrs Bairnsfather underwent one round of consolidation chemotherapy at the RAH that

was prescribed for her by Dr Shanmuganathan, a registrar.

8.41. Dr Shanmuganathan obtained her primary medical qualification from the University of

Adelaide in 2007. She obtained her Fellowship of the Royal Australasian College of

Physicians and the Royal College of Pathologists in 2016. That was conferred upon

her completion of training as a haematologist. However, in 2014 and 2015

Dr Shanmuganathan was a registrar still undergoing haematology training. Her duties

as a haematology registrar included clinical work involving the conducting of weekly

clinics, the reviewing of ward patients, the writing of chemotherapy prescriptions,

reviewing patients’ laboratory results and making clinical decisions based on those

results. In 2014 and 2015 she was undergoing rotation through the RAH until her

ultimate transfer to The Queen Elizabeth Hospital in 2015. It was during that rotation

that she was involved in the treatment of Mrs Bairnsfather.

8.42. Mrs Bairnsfather’s treating consultant was a Dr Noemi Horvath. Mrs Bairnsfather

underwent her induction chemotherapy in October 2014 following her diagnosis with

AML. Dr Shanmuganathan did not prescribe Mrs Bairnsfather’s successful induction

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chemotherapy. Mrs Bairnsfather achieved complete remission. This then called for the

consolidation chemotherapy that Dr Shanmuganathan prescribed.

8.43. Dr Shanmuganathan told the Court that in order to prescribe Mrs Bairnsfather’s

consolidation chemotherapy she used the erroneous RAH AML protocol which was on

the haematology intranet. I find that Dr Shanmuganathan at all times acted on the basis

that the RAH protocol was correct.

8.44. However, in the course of her oral evidence before the Court Dr Shanmuganathan was

naturally asked about the emails that had been circulated on 16 and 19 July 2015, that

is to say the email from Mrs To attaching the uploaded protocol and the conflicting

email of Associate Professor Lewis in which he explained the consolidation regimen

including the reference to twice daily administration. Dr Shanmuganathan was a

recipient of both emails. As to the email of Mrs To of 16 July 2014,

Dr Shanmuganathan said that she would have read the email but not in any significant

detail. She said that she was based in the laboratory at that time and only commenced

actively treating leukaemia patients later in 2014. The same applied in relation to her

receipt of Associate Professor Lewis’ email of 19 July 2014. She stated that she would

have glanced through it. In cross-examination by Ms Kereru, counsel assisting,

Dr Shanmuganathan acknowledged that she had been aware of the protocol for AML

prior to the change in July 2014 and had herself prescribed chemotherapy for patients

based upon that previous protocol99. Thus when the changes occurred and the new

protocol was uploaded onto the intranet she realised that the cytarabine therapy had

been changed from twice daily to once daily on days 1, 3 and 5100. Dr Shanmuganathan

did not query that change or question senior staff about it. She stated that she had made

the assumption that the protocol had been written and checked through normal

governance procedures. She said that she had thought that there was a reason for the

change, namely that once daily dosing was either superior or less toxic. She

acknowledged that she had not been aware of the underlying evidence, herself being a

junior registrar. She said:

'So I was under the impression that all the checks and balances had been done before

publication.' 101

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Specifically, her understanding was that it had gone through the Drugs and Therapeutics

Committee and that it had been discussed within a committee of haematologists before

being published on the intranet. When asked by me as to whether she had any

understanding as to what had sparked the change, Dr Shanmuganathan said that she had

been under the impression that it had been the subject of numerous articles, meetings

and conferences in which her unit had participated and that the RAH was following a

trend. Being a registrar at that time and also being in the middle of exams, she assumed

that the alteration had been discussed, planned and appropriately vetted. She believed

that the change had been based on a study, possibly conducted by the ALLG. However,

being at a junior level she had not been involved in any discussion within the

department about the actual reasons for the change.

8.45. Dr Shanmuganathan said that she did not pick up the discrepancy between Associate

Professor Lewis’ email and the amended protocol that had been circulated102. As far as

she was aware no other person had picked up on the discrepancy103. No person on the

distribution list for the two emails drew any such discrepancy to her attention. It would

also follow from Dr Shanmuganathan’s answers that regardless of whether she

observed any discrepancy or not, it does not appear that she took particular notice of

the fact that Associate Professor Lewis’ email called for twice daily administration. It

is obvious that at all times Dr Shanmuganathan based her prescriptions on the erroneous

RAH protocol document on the SA Pathology server.

8.46. It was in those circumstances that on 18 November 2014 Dr Shanmuganathan

prescribed Mrs Bairnsfather’s cycle of consolidation chemotherapy which involved

only single daily dosing of cytarabine on 24, 26 and 28 November 2014.

8.47. In the event Mrs Bairnsfather did not undergo a second cycle of consolidation

chemotherapy as already discussed.

8.48. In January 2015 Dr Shanmuganathan would write out another prescription based on the

erroneous protocol for a patient, Ms MR. However, before the prescription was filled

and administered the error was identified when another more senior doctor, Associate

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Professor Yong, wrote out a prescription for the same patient which called for the

correct twice daily administration.

8.49. Any criticism that adheres to Dr Shanmuganathan’s involvement in the erroneous

prescription for Mrs Bairnsfather is mitigated by the fact that she was a relatively junior

practitioner who was not involved in the promulgation of the erroneous protocol. At

the time of its promulgation she was not performing clinical duties. She simply

followed the erroneous protocol to the letter and not unreasonably assumed that the

necessary processes for promulgation had been undertaken by more senior clinicians.

However, she had been a recipient of both the email that attached the erroneous protocol

and Associate Professor Lewis’ email which correctly described a requirement for twice

daily administration. A keener eye could have picked up the discrepancy.

8.50. The circumstances relating to the underdosing of Mr Higham

Mr Bronte Higham was diagnosed with AML in November 2014 at the FMC. He was

one of Dr Beligaswatte’s patients at that hospital. At that time Dr Beligaswatte was

working at both the RAH and the FMC. In November 2014 Mr Higham successfully

underwent induction chemotherapy and attained a complete remission.

8.51. In December 2014 Dr Beligaswatte attended the American Society of Haematology

Conference in the United States of America. He also took leave between 25 December

2014 and 19 January 2015 which was his first day back at work. At that time he still

had two more weeks of clinics at the RAH but also had some work at FMC, so he would

be at both sites. I do not believe that Dr Beligaswatte had an involvement in Mr

Higham’s consolidation chemotherapy.

8.52. It was Professor Alexander Gallus, a consultant haematologist at the FMC, who signed

off on the prescriptions for the two cycles of consolidation chemotherapy for

Mr Higham. The first prescription104 is dated 8 December 2014 and bears the electronic

signature of Professor Gallus. This prescription is based upon the template prepared

in July 2014 by Ms Teh and provided for a single dose of cytarabine on alternate days.

Accordingly, Mr Higham received only single daily dosing of cytarabine and this of

course was not in accordance with the intended regimen. The consolidation cytarabine

therapy was administered on 9, 11 and 13 December 2014.

104 Exhibit C45, Tab 3

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8.53. The same circumstances applied to Mr Higham’s second cycle of consolidation

chemotherapy. Again the electronic signature of Professor Gallus was applied to the

prescription using the same template for single daily dosing. On this occasion the

cytarabine administration took place on 14, 16 and 18 January 2015. The time of

administration on 16 January 2015 appears to be 4:50pm. The time of administration

of cytarabine on 18 January 2015 appears to be 10:10am. Both administrations would

have taken place over three hours and were conducted at the RAH. It is of note that

Friday 16 January 2015 was the day on which the anomaly in the prescriptions of

Ms MR was identified by a pharmacist at the RAH, as a result of which the RAH

protocol error was identified on Monday 19 January. It is possible that Mr Higham’s

erroneous single dosages on 16 January and 18 January 2015 may have been avoided

had the error been positively identified on 16 January 2015.

8.54. Both prescriptions for Mr Higham’s consolidation therapy were also signed by another

doctor who at that time was a registrar. In all the circumstances I did not believe it was

necessary to trouble that person to give oral evidence in the inquest bearing in mind

that person’s junior status and the available conclusion that this practitioner would have

simply been following the template that was already in existence. Moreover, this

practitioner was not a recipient of the email of Mrs To of 16 July 2014 nor of the email

of Associate Professor Lewis of 19 July.

8.55. The Court called Professor Gallus to give oral evidence about the circumstances in

which he came to endorse the consolidation chemotherapy for Mr Higham.

Professor Gallus received his basic medical degrees from the University of Melbourne

in 1963. He became a Fellow of the Royal Australian College of Physicians in 1973

and a Fellow of the Royal Australian College of Pathologists in 1980. His specialty is

in general haematology with an emphasis on blood clotting, bleeding disorders, anti-

coagulant management and anaemia. He said that he is not an expert in malignant

haematology. None of his clinics involved patients suffering from AML. Nevertheless,

he would conduct ward service which would involve the treatment and care of

inpatients at the hospital. He was performing these duties in December 2014.

8.56. In his evidence Professor Gallus stated that he recalled Mr Higham. There is an entry

within Mr Higham’s progress notes105 of Professor Gallus seeing Mr Higham in the

course of a ward round at 5:05pm on 10 December 2014 which was the day before the

105 Exhibit C45, page 20

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first day of the first cycle of Mr Higham’s consolidation therapy. Professor Gallus told

the Court that he would have attended the ward round on that day. A similar note exists

in respect of 12 December 2014 involving Professor Gallus seeing Mr Higham on a

ward round wherein it is noted that there would be no change to the plan which can be

taken as a reference to consolidation chemotherapy. There are further entries in

December 2014 involving Professor Gallus seeing Mr Higham that do not need to be

spoken of in any detail.

8.57. As far as the second cycle of consolidation chemotherapy is concerned it appears that

Professor Gallus’ involvement was the same as it had been in the cycle from the

previous month.

8.58. In cross-examination by Ms Kereru, counsel assisting, Professor Gallus stated that in

mid-2014 he was present at a haematology weekly ward meeting at FMC where an

RAH protocol and its adoption at the FMC had been discussed. He told the Court that

the meeting discussed harmonising AML treatment protocols between FMC and RAH.

He did not appreciate the details of exactly what the RAH protocol was going to be.

There had not been any discussion to that level of detail. He added that he did not have

any professional interest in the matter because it was outside his area106. However, he

acknowledged that he would have received Mrs To’s email of 16 July 2014 that

attached the revised protocol as well as Associate Professor Lewis’ email of 19 July

2014 which set out the intended twice daily frequency. He said that he would not have

read both emails because neither email dealt with an FMC protocol. Rather, they

concerned an RAH protocol107. He said he would have deleted both emails.

8.59. In cross-examination by Mr Griffin QC, Professor Gallus agreed that the administration

frequency columns within the template were pre-printed and that if they contained a

mistake this would be a matter that he would not check when completing or signing a

prescription. As far as the drug dosages for Mr Higham were concerned, they were not

matters that he would have checked against any existing protocol. Professor Gallus

also said that he would not go to the literature behind the protocol108. Indeed, he agreed

with the proposition put to him by Mr Griffin QC that as AML was not one of

Professor Gallus’ sub specialities, he would not recognise that the drug cytarabine

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should routinely be administered bi-daily rather than once daily just by looking at the

frequency administration column of the template. Professor Gallus said:

'That's correct. I would not. Somebody in their wisdom has decided that this is the way it's

going to be. And I mean there is sufficient variation between protocols amongst various

places to say, well this is a variant. But I mean from where I sit and from my expertise I

would not have picked the fact that the usual way to give this would be twice, no.' 109

Professor Gallus also agreed with Mr Griffin QC’s proposition that unless the

prescription was checked by a consultant who was a specialist in respect of the

treatment of AML, the once daily rather than twice daily administration of cytarabine

discrepancy was unlikely to be detected and added:

‘The very fact that it is a protocol gives it a certain status and if the protocol says it’s a

once-daily administration, then your assumption is that this is deliberate.’ 110

8.60. I find that neither Professor Gallus nor any other clinician identified that Mr Higham

should have received twice daily dosing consolidation chemotherapy, or that the

template used for the purposes of prescription was in error in only providing for once

daily administration.

8.61. I also find that Professor Gallus did not receive any communication from any clinician

at the RAH to the effect that the protocol was erroneous or that there was any other

anomaly in respect of the protocol at a time that would have prevented the miscarriage

of Mr Higham’s second cycle of consolidation chemotherapy in January 2015.

8.62. Nevertheless, Professor Gallus had been a recipient of the conflicting emails of Mrs To

and Associate Professor Lewis. On can understand him not paying much attention to

the protocol attached to Mrs To’s email, as it involved an RAH protocol exclusively.

However, he had received Associate Professor Lewis’ email which had correctly spelt

out the twice daily requirement. All that said, Professor Gallus had not been a recipient

of the email chain initiated by Dr Beligaswatte at the FMC on 21 July 2014 that had

precipitated the introduction of the error into the FMC template that would be used in

Mr Higham’s consolidation chemotherapy. On the whole, it is difficult to be critical of

Professor Gallus.

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8.63. The only other matter surrounding Mr Higham’s consolidation therapy that should be

mentioned is that on 15 January, which was the day between Mr Higham’s first and

third days of cytarabine administration in his second cycle of therapy, he was seen by

Dr David Ross. Dr Ross was a haematologist who like Dr Beligaswatte had an

involvement in both the RAH and the FMC haematology departments. A note made in

respect of this consultation indicates that Dr Ross determined that Mr Higham should

continue with that cycle and that the patient should be followed up with Dr Beligaswatte

after that cycle. In his evidence before the Court Dr Ross said that he had no

recollection of seeing Mr Higham. In any event, it is clear that Dr Ross had nothing to

do with the erroneous chemotherapy prescription that had been filled for Mr Higham.

In January 2015 Dr Ross would have some involvement with Mr Knox’s care during

the course of Mr Knox’s second cycle of consolidation therapy. I will mention

something of this when dealing with Mr Knox’s circumstances.

9. The error is discovered

9.1. On 16 January 2015 Mr Russell Baldock who is a pharmacist at the RAH was rostered

for prescription verification. In the course of his work he encountered a prescription

that had been compiled by Associate Professor Agnes Yong on 15 January 2015.

Associate Professor Yong is a consultant haematologist at the RAH. The prescription

was for the second cycle of consolidation chemotherapy for an AML patient, Ms MR,

and it prescribed twice daily administration of cytarabine on three alternate days,

namely 19, 21 and 23 January 2015. 16 January 2015 was a Friday. Ms MR’s

chemotherapy was to commence on Monday 19 January 2015.

9.2. As part of the prescription filling process it was necessary for Mr Baldock to check the

prescription against the relevant chemotherapy protocol which he did. On examining

that protocol he realised that the protocol only called for daily administration of

cytarabine. This protocol of course was the erroneous protocol that had been on the SA

Pathology server since mid-July 2014. Mr Baldock also established that in respect of

the patient’s first cycle of consolidation chemotherapy she had been administered once

daily cytarabine on three alternate days which had been in accordance with the existing

erroneous protocol.

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9.3. However, as far as the upcoming second cycle for Ms MR was concerned Mr Baldock

also noticed that there was already in existence a prescription for the same

chemotherapy for the same patient, but which had been compiled on 12 January 2015

by Dr Shanmuganathan to whom I have already referred. This prescription called for

only once daily administration on the three alternate days beginning Monday

19 January 2015. Naturally, this prescription had been based on the erroneous protocol.

9.4. Mr Baldock observed that Associate Professor Yong’s prescription was a variation on

the protocol which, according to Mr Baldock, occasionally occurs. In those

circumstances he decided to seek an explanation from Associate Professor Yong to

ensure that the dose frequency variation to twice daily was an intended adjustment. The

fact that there were two prescriptions in existence for the same treatment was also

irregular.

9.5. Mr Baldock contacted the more senior doctor, Associate Professor Yong, via email and

he also had a conversation with her. Mr Baldock believes that he actually spoke to

Associate Professor Yong before he sent an email to her about the matter at 9:21am.

The email was copied to another pharmacist, Mr Abhi Phatak. The email to Associate

Professor Yong mentioned the patient’s name and the fact that Dr Shanmuganathan had

also written a prescription for the patient earlier in the week. The email only refers to

an anomaly in respect of an accompanying drug used in the chemotherapy, the nature

of which does not need to be discussed here, but nothing about the once daily versus

twice daily anomaly. Associate Professor Yong in her email response at 10:16am stated

to Mr Baldock, as copied to Mr Phatak, that the ALLG M15 study recommended

consolidation of twice daily administration of cytarabine and that this should be

followed. It will be observed that these communications between Mr Baldock and

Associate Professor Yong occurred early on that Friday.

9.6. In the event the second consolidation chemotherapy cycle for the patient Ms MR would

be administered on a twice daily basis over the three alternate days in accordance with

the correct and intended regime of administration that Associate Professor Yong had

prescribed. It would not serve to alter the erroneous administration in respect of

Mrs Pinxteren at the RAH nor in respect of Mr Higham at the FMC over the course of

the ensuing weekend.

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9.7. Associate Professor Agnes Yong was called to give oral evidence in the inquest. She

was represented by Mr Trim QC and Mr Besanko of counsel. Associate Professor Yong

holds the position of a senior consultant haematologist at the Haematology Department

at the University of Adelaide. Her employer, as with the other haematologists, is SA

Pathology. She is a member of the staff of the Clinical Services Department and was

the deputy to Professor Bik To. She is a clinical associate professor. Associate

Professor Yong arrived in Australia in 2011 and had worked at the RAH since 2012.

9.8. Associate Professor Yong explained that the majority of her work at the RAH was

clinical and that her particular area of interest within haematology was research in

chronic myeloid leukaemia and transplantation. Associate Professor Yong obtained her

Doctorate of Philosophy in respect of chronic myeloid leukaemia.

9.9. In 2014 Associate Professor Yong was a member of the ALLG and had been aware

through Associate Professor Lewis of the ALLG M15 study. She told the Court that

she was aware of the agreement that the RAH would take part in the M15 study.

9.10. In the course of her evidence-in-chief Associate Professor Yong was shown the ALLG

M15 trial document relating to lenalidomide maintenance therapy. She was familiar

with the study participation requirement that a patient had to undergo induction

chemotherapy and have at least one consolidation cycle of chemotherapy. She was

familiar with the recommended chemotherapy regimen for the 56-65 age group as set

out in that document. Associate Professor Yong herself told the Court that she had at

least three patients who had participated in the trial. Associate Professor Yong’s

familiarity with this study would prove to be an important circumstance in the detection

of the error.

9.11. In relation to Associate Professor Lewis’ email of 19 July 2014 she told the Court that

she did not recall seeing that at that time as in 2014 it was not particularly relevant to

her clinical practice. As well, she had not read the updated and erroneous RAH protocol

dated 15 July 2014 which had been uploaded by Mrs To on 16 July 2014. At all

relevant times she worked off the M15 study documentation. It seems, therefore, that

Associate Professor Yong’s clinical practice had not been infected by the erroneous

protocol.

9.12. Associate Professor Yong had assumed Ms MR’s care because she had been on ward

duty at the time of her admission. Associate Professor Yong explained that Ms MR

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was diagnosed with AML and had undergone successful induction chemotherapy.

Ms MR was a suitable candidate to take part in the M15 study as she was aged less than

60 years. When Ms MR came to undergo her first cycle of consolidation chemotherapy,

Associate Professor Yong had been away at a meeting in the United States. The first

cycle of consolidation chemotherapy for Ms MR had been administered in accordance

with the incorrect protocol. However, it was in relation to the second cycle that the

error was detected. Ms MR was due to undergo that second cycle commencing on

Monday 19 January 2015. Associate Professor Yong saw Ms MR in the days prior to

19 January 2015. Associate Professor Yong wrote out the second consolidation

prescription for Ms MR thereby giving rise to the conflicting chemotherapy

prescriptions, the other having earlier been written by the registrar Dr Shanmuganathan.

9.13. Associate Professor Yong had compiled her prescription not from the erroneous

protocol, but from the original ALLG M15 study document which of course set out the

correct dosage frequency. She had intended her patient Ms MR to participate in the

study. She did not need to refer to the RAH protocol for these purposes. She told the

Court that she simply used the recommended trial consolidation dose.

9.14. At the time she completed the prescription for the second round of chemotherapy

Associate Professor Yong did not know that there was already in existence another

prescription which had been written out by Dr Shanmuganathan.

9.15. Associate Professor Yong identified the email exchange of 16 January 2015 between

herself and Mr Baldock. It was actually in respect of the involvement of another drug,

that is not relevant for these purposes, that caused Associate Professor Yong and

Mr Baldock to have interaction in relation to this prescription and it was in the course

of oral discussions that it was revealed to Associate Professor Yong that the original

prescription of Dr Shanmuganathan was for only once daily administration of

cytarabine.

9.16. According to Associate Professor Yong, the revelation that another doctor had written

out a conflicting prescription in terms of cytarabine frequency did not automatically

lead her to a conclusion that there was in existence a documented error in the RAH

protocol. She told the Court that on Friday 16 January 2015 she was not aware that the

hospital protocol stipulated once daily administration. She had been on leave for most

of December 2014 and wondered whether it had been changed deliberately without her

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knowledge. This was a matter that she intended to take up with Mrs To who was

responsible for protocol maintenance. However, Mrs To did not work on Fridays111.

9.17. Associate Professor Yong told the Court that during the following Monday morning,

19 January 2015, she had a meeting with the pharmacists, Mr Baldock and Mr Phatak,

during which the RAH protocol and the ALLG M15 protocol were brought up on the

screen and the discrepancy was obvious to see.

9.18. On that Monday at 7:58am Associate Professor Yong sent an email to Mrs To

explaining that on the previous Friday the pharmacists, including Mr Baldock, had

brought to her attention that the RAH AML protocol had a different consolidation

regime for patients between 56 to 65 years from that set out in the M15 protocol. She

pointed out the discrepancy as being twice daily against once daily administration. She

also pointed out that it had previously been decided that the RAH protocol would align

with the M15 study as the RAH had wanted to use the ALLG recommended induction

and consolidation protocols. Associate Professor Yong enquired within her email as

follows:

'Please could you check for me – is this a typo?? It’s quite serious as it means that our

patients’ consolidation is missing 3g/m2 each cycle if we are only doing 1g/m2 od and not

BD.'

9.19. On the face of it this extract from Associate Professor Yong’s email suggests that the

discrepancy between the RAH protocol and the M15 study was something that she

knew about on the Friday after Mr Baldock had drawn the two conflicting prescriptions

to her attention. However, on the face of it the email is also consistent with a lack of

appreciation on Associate Professor Yong’s part on the Friday, and indeed until matters

were clarified on the Monday, that the discrepancy was explained by an actual error

within the RAH protocol. Mr Griffin QC has argued that based on the discrepancy

coupled with Associate Professor Yong’s determination that the M15 twice daily

regimen should be followed leads to the inescapable conclusion that Associate

Professor Yong consciously realised that there was an error in the RAH protocol that

would have required immediate rectification and that the other conflicting prescription

was as a consequence of that. I do not accept that submission. I do not believe that

Associate Professor Yong did conclude on the Friday that the RAH protocol was

erroneous as a matter of certainty. After all, a state of uncertainty in that regard is

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reflected in her query of Mrs To as to whether the inconsistency between the M15 study

and the RAH protocol was due to a typo. I do not doubt, however, that given Associate

Professor Yong’s familiarity with AML consolidation chemotherapy she had grounds

to deeply suspect that the RAH protocol was in error when it specified only once daily

administration. I cannot accept for a moment that on that Friday it would not have been

possible to establish that the RAH protocol was in error and that the specification of

once daily administration of cytarabine was not deliberate. I have found that while

Associate Professor Yong on the Friday did not establish that the RAH protocol

contained an error, the error could easily have been established that day and that

rectification of the protocol and of any outstanding prescriptions at the RAH could have

been achieved.

9.20. As a result of Associate Professor Yong’s email to Mrs To, Mrs To came to her office

in a very upset state saying that she had indeed made an error in typing out the protocol

and that the intended dosage was meant to be twice a day and not once a day112.

Associate Professor Yong’s concern from that point was to correct the protocol

immediately and so she instructed Mrs To to do that. This was in fact done. The correct

prescription as written out by Associate Professor Yong was in fact administered to

Ms MR in respect of her second cycle of consolidation chemotherapy.

9.21. Associate Professor Yong instructed the pharmacy to identify all patients who had been

wrongly administered consolidation chemotherapy in accordance with the erroneous

RAH protocol to that point in time.

9.22. There was an issue raised during the course of Associate Professor Yong’s evidence

and the evidence of Mr Phatak as to whether a Safety Learning System report (SLS)

would be initiated and by whom. An SLS report is a document that is intended to

describe and circulate an account of a clinical error or other adverse event that has been

identified. There was a dispute of sorts as between Mr Phatak and Associate Professor

Yong as to whose responsibility it had been to file such a report at the RAH. In the

event an SLS would not be filed until mid-February 2015. I will return to this issue

briefly later, but I do not believe that an SLS filed on or about 19 January would

necessarily have prevented anything that would take place from that point forward,

either at the RAH or the FMC.

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9.23. There is also the fact that the FMC was using the same erroneous protocol as of Monday

19 January 2015. This fact would only be recognised at a later point in time and indeed

too late for Mr Knox to avoid being administered incorrect consolidation chemotherapy

that was ordered based upon the still erroneous FMC template. I will come to the

circumstances in which the error came to be identified at the FMC independently of the

RAH in a moment, but the fact that it was not identified at the FMC on either Friday

16 January or at the very latest Monday 19 January 2015 owes itself to poor clinical

governance at both hospitals and what appears to be the fact that government tertiary

hospitals in this State act in a silo fashion insofar as each of them does not appear to

know what the others are doing, even though they are working within the same sphere

of medicine. The poor clinical governance is classically illustrated by the fact that

notwithstanding the identification of the error at the RAH on 19 January 2015, Mr Knox

was still allowed to undergo chemotherapy that was incorrect. I will come to the precise

circumstances of that in a moment. A lack of proper communication and a

demonstration of poor clinical governance at either of these two hospitals should never

be tolerated in the future.

9.24. I return to the narrative as it unfolded following Associate Professor Yong’s

identification of the error. At 11:29am on Monday 19 January 2015 Mrs To emailed

Associate Professor Yong and copied it to Associate Professor Lewis. The email

attached an amended and correct protocol which stipulated twice daily administration.

The email requested Associate Professor Yong to examine the change and to approve

it prior to it being uploaded onto the system. A few minutes later Associate Professor

Yong replied outlining a few minor alterations.

9.25. The following day, Tuesday 20 January 2015, there was a further email exchange

between Associate Professor Yong and Mrs To about the content of the corrected

protocol in which Mrs To again asked whether the document could be uploaded, adding

‘I am nervous about any mistake now’. After further correspondence between

Associate Professor Yong and Mrs To the corrected protocol was uploaded onto the SA

Pathology server.

9.26. As a result of the email exchange, at 10:53am on Tuesday 20 January Mrs To sent a

circular email to the many recipients that appear to represent the same or a similar

distribution list to the list that had been circulated in July 2014. The recipients included

Associate Professor Lewis, Professor Bardy, Dr Beligaswatte, Dr Coghlan, Professor

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Gallus, Dr Hiwase, Dr Horvath, Associate Professor Kuss, Dr David Ross and naturally

Associate Professor Yong. For reasons that will now become obvious this email gave

rise to a deal of critical commentary during the course of the inquest. I set out the email

in full:

'Subject: updated AML (excluding APML) protocol uploaded

Attachments: AML_140715_1_AY edited_ct_cleaned.pdf

Dear all,

Please note that an (sic) revised AML protocol (1.1), with one correct (sic), has been

uploaded to the intranet. This version remains as version dated 15th July 2014 with (1)

added to the end to mark the update, as the rest of the information is unchanged.

Associate Professor Yong would like to bring your attention that: under section 3.6 HiDAC

2-ida consolidation: Cytarabine IV 1g/m2 is to be given twice daily.

CHE TO

(Working on Monday, Tuesday and Wednesday)

Project Officer

C/o Haematology Clinical Trial Office

Level 3, East Wing, Royal Adelaide Hospital, North Terrace, Adelaide, SA 5000, Australia'

9.27. Although the email refers to the protocol as having one correction, the correction is not

identified. There is also no mention of the fact that Associate Professor Yong’s

instruction that cytarabine was to be given twice daily had arisen out of an error in

respect of dose frequency that had been identified in the protocol. Nor did it refer to

any frequency error as being corrected as such. It was generally accepted in the inquest

that this email was a wholly inadequate way of alerting a body of professional people

to the existence of a serious error in a chemotherapy protocol, particularly when it is

borne in mind that a number of the recipients of that email across two hospitals had

prescribed chemotherapy in accordance with the original and erroneous RAH protocol,

or in accordance with the FMC template which also up to that point had provision for

only once daily administration of cytarabine consolidation chemotherapy. Those

practitioners included Dr Beligaswatte, Professor Gallus, Dr Hiwase,

Dr Shanmuganathan and Dr Ross.

9.28. Notwithstanding the distribution of this email, Mr Knox at the FMC would be

prescribed his second round of consolidation chemotherapy still in accordance with the

uncorrected FMC chemotherapy template which specified only once daily

administration of cytarabine.

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9.29. Dr Beligaswatte had been Mr Knox’s haematology physician at FMC. Mr Knox had

undergone his first cycle of consolidation chemotherapy in December 2014 at the hands

of Dr Beligaswatte. That consolidation chemotherapy had involved only once daily

administration. That of course took place at a time prior to the identification of the

error in mid-January of 2015. However Dr Beligaswatte, who as indicated had been

one of the recipients of Mrs To’s email of 20 January 2015, again prescribed the

erroneous once daily chemotherapy in respect of Mr Knox’s second cycle. The

prescription is dated 22 January 2015 and is signed by Dr Beligaswatte. I accept that

Dr Beligaswatte did not appreciate at that point that the error had been identified within

the RAH protocol or appreciate the significance of the information contained in

Mrs To’s email of 20 January 2015. However, by 20 January 2015 he had returned

from leave. He was asked by his counsel Ms Cliff as to whether he received Mrs To’s

email of 20 January 2015 timed at 10:53am and he said:

'I cannot recall reading this email at this time. I was shown subsequently many months

later that I have, but I can't recall reading this.' 113

He acknowledged that the email certainly would have come into his inbox. He

explained that he had just returned from leave and was catching up on his work. He

would have been skimming emails to see which ones he really had to read. He said that

he did not think that the email would have struck him as anything other than a

housekeeping email that would have simply involved the minor editing of a protocol.

He pointed to the fact that the email suggested that the protocol had been ‘cleaned’

which may have made him think that any alteration had simply involved formatting

issues and minor things of a like nature. Thus he may have believed that he did not

even need to open the email. Dr Beligaswatte did say this:

'Yes, the document was pertinent. I acknowledge that. I don't think that it flagged the

seriousness but I acknowledge that it was pertinent to my practice.' 114

9.30. I found Dr Beligaswatte’s self-analysis as to why he did not take on board the contents

of Mrs To’s email of 20 January 2015 very difficult to accept as being reasonable.

Dr Beligaswatte was still working at the RAH in the period between 20 and 30 January

2015. The email was sent by Mrs To who was a person who had much to do with the

upkeep of chemotherapy protocols. The content of the email, as distinct from the title

of the subject matter, related quite clearly to an AML protocol that was concerned with

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consolidation chemotherapy and in particular cytarabine chemotherapy. Furthermore,

it concerned a matter in respect of which Dr Beligaswatte had a significant personal

involvement. He had been instrumental in introducing the protocol to the FMC.

Moreover, he had personally been involved in the consolidation chemotherapy of a

number of individuals, including Mr McRae and Ms Crannage, wherein he had

prescribed once daily treatment. Furthermore, if his memory had served him well

in January 2015, he would have recalled that at the time of the introduction of that

protocol at the FMC in July of 2014 there had in fact been an issue that had involved

whether the therapy would be administered once daily or twice daily. Mrs To’s email

was a document in which a consultant haematologist senior to him, namely Associate

Professor Yong, was saying that in respect of the very protocol that he had been

involved in, and the very treatment that he himself had administered, the therapy was

to be given twice daily, meaning of course that it was not meant to be given once daily.

Even if, say, Dr Beligaswatte had thought that Associate Professor Yong’s intimation

that cytarabine was to be given twice daily was merely an update, it could not possibly

explain why Dr Beligaswatte would prescribe only once daily administration in respect

of Mr Knox’s second cycle of consolidation chemotherapy which was due to

commence later in that week. And consider this; Associate Professor Yong’s intimation

that cytarabine be administered twice daily in accordance with the RAH protocol meant

that there would now be an inconsistency between the RAH protocol and the existing

FMC template. Given that Dr Beligaswatte had assumed responsibility for the content

of the FMC template, one would have thought that he would have assumed the

responsibility of considering whether the FMC template also required amendment. I

think it is the case that Dr Beligaswatte simply paid no attention to Mrs To’s email of

20 January 2015. To my mind that was simply not good enough. On the face of it this

email manifestly related to an important facet of Dr Beligaswatte’s practice at both the

RAH and the FMC. For him the importance of it was underlined by the fact that during

the course of that very week he had the responsibility of formulating a prescription for

Mr Knox’s consolidation chemotherapy at the FMC.

9.31. Mr Knox underwent his second cycle of consolidation chemotherapy from 22 January

to 26 January 2015. The error in the FMC protocol template would not be identified

until 30 January 2015 which was Dr Beligaswatte’s last working day at the RAH.

9.32. Mr Knox was the last person to undergo the incorrect chemotherapy.

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9.33. Mr Knox relapsed in December 2016. I understand he underwent further treatment

interstate.

9.34. I make the following findings:

• RAH protocol error was discovered following the identification by Associate

Professor Yong and an RAH pharmacist of a discrepancy between the prescriptions

written for Ms MR that had been written by Associate Professor Yong on the one

hand and a Registrar on the other. That discrepancy was discovered on Friday 16

January 2015. However, this did not lead to the identification of the error within

the RAH protocol on that day. In my view, the error should have been identified

on that day. Had the RAH protocol been identified on that day, and if the error was

quickly identified also at the FMC, it could have prevented the erroneous

administration of consolidation chemotherapy to Mrs Pinxteren at the RAH and

possibly Mr Higham at the FMC. It certainly would have prevented the erroneous

administration to Mr Knox.

• The error within the RAH protocol was identified on Monday 19 January 2015.

• On Tuesday 20 January 2015 an email circulated by Mrs To and referring to the

requirement described by Associate Professor Yong that cytarabine was to be

administered twice daily was wholly inadequate in that it did not signify that

Associate Professor Yong’s requirement had its origin in the identification of an

error within the RAH protocol. This email failed to alert any person at the FMC

that an error existed either in the RAH protocol or FMC protocol or both.

• It is uncertain as to why the error was not specified in the email of Mrs To. The

email was so perplexingly and inappropriately banal and matter of fact in its terms

that it attracts suspicion that it was deliberately uninformative. However, there is

insufficient evidence to suggest that it was a deliberate omission or that there was

any sinister motive underlying the omission. Nevertheless, I find that the omission

is utterly astonishing.

10. The error is acted upon at the RAH

10.1. The error was acted on immediately in the sense that it was corrected within the RAH

protocol, but that was about the extent of the action until mid-February 2015. SLS

reports would not be submitted in respect of the underdosing of Mrs Pinxteren, Mr

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McRae, Mrs Bairnsfather and the two other affected RAH patients until 12 February in

the case of a patient Ms MR, or until 17 February in the case of the other patients. Apart

from Dr Beligaswatte being made aware of the error, he says, on 30 January 2015, the

error would not be formally disclosed to the FMC until, I find, 11 February 2015 when

Associate Professor Kuss was made aware of it at a haematology ward meeting.

10.2. Associate Professor Lewis was not in South Australia between 2 January and

25 January 2015. He was in the United States on leave with his family. He was asked

by his counsel whether he had taken his work phone with him and he said that he had,

but that global roaming was not activated as he only requests this when he goes overseas

for work related matters and that in any event he generally tried to avoid accessing work

emails on family holidays. Thus it was that he says he did not see Mrs To’s email of

20 January 2015. He admitted, however, that he could have accessed that email at least

by way of wifi which from time to time he was able to access at ‘various points’115. In

the event he was advised of the error by Mr Phatak, the pharmacist, on Wednesday 28

January 2015 after he returned from leave. It will be noted that this was two days before

Dr Beligaswatte asserts that he was told of the error by, he says, Mr Phatak. Mr Phatak

said there had been five patients affected and their names were mentioned. There was

no discussion about using the Safety Learning System in order to report the matter. As

to what action he took after Mr Phatak advised him of the error, Associate Professor

Lewis said:

'I ascertained from Mr Phatak where the patients were in their treatment course and realised

that there was no immediate action to take, so no, I did not take any further action.' 116

He acknowledged that further action would have been appropriate in light of his

seniority and training. He said he should have been more proactive and that the lack of

action had left him embarrassed and deeply ashamed. He said that ‘in retrospect’ he

should have been much more proactive and have taken action including ascertaining

more detail about the affected patients, establishing whether patients in other hospitals

were affected, notifying his direct line manager, lodging an SLS and arranging for

appropriate and timely open disclosure with the affected patients. He did not have any

discussion about the error with Associate Professor Yong at around this time, although

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he said that there may have been some discussion which he did not recall117. For a

significant period of time between 28 January 2015 and 12 February 2015 when he

attended a meeting in San Diego with Associate Professor Yong and on which date he

says he first found out that the FMC had inherited the error, Associate Professor Lewis

does not appear to have displayed anything other than complete insouciance to the

whole affair. In his evidence Associate Professor Lewis proffered as a reason for not

taking any positive action that he ‘essentially froze’118. He said he froze and did not

know what to do.

10.3. One of the matters that Associate Professor Lewis acknowledges that he could and

should have done was to establish whether patients at other hospitals were affected by

the error. There were a number of means by which this could have been achieved

including contacting his counterpart the FMC Associate Professor Kuss, by notifying

senior members of SA Pathology who oversaw haematology services in South Australia

and by speaking to relevant clinicians at the RAH including Dr Beligaswatte who

asserts that he did not find out about the error until two days after Associate Professor

Lewis.

10.4. I will in greater detail deal with the circumstances in which the error was recognised at

the FMC in another section, but it as well to observe here that on 12 February 2015,

which was the day after a ward meeting at the FMC at which the error at the FMC was

disclosed to Associate Professor Kuss, Associate Professor Kuss emailed Associate

Professor Lewis about the matter. Associate Professor Lewis was still in San Diego at

that time. According to Associate Professor Lewis this email was the first he knew of

the fact that the erroneous RAH protocol had been adopted and utilised at the FMC119.

He said he was surprised at this because of the tendency at the FMC to use their own

protocols. He also said that he was ‘horrified’ to learn that FMC had been using the

erroneous protocol and that the failure to report the error in a timely manner had led to

patients at the FMC also receiving less than the intended dose of chemotherapy. In his

reply to Associate Professor Kuss, Associate Professor Lewis said that he would make

the matter his priority when he returned to work the following week.

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10.5. Strangely, according to Associate Professor Lewis, he did not have any discussion

about the error and its discovery with Associate Professor Yong while they were in San

Diego before the February 2015 email exchange that was prompted by Associate

Professor Kuss.

10.6. As for Associate Professor Yong’s part, she told the Court that she regretted not having

taken action in response to the list of affected patients that she was given on 20 January

2015. She spoke to Associate Professor Lewis after he returned to work and it appeared

to her that Associate Professor Lewis knew of the error as the pharmacist, Mr Phatak,

had spoken to him. She had no other involvement in addressing the error between the

time of that conversation with Associate Professor Lewis and her departure for San

Diego. She had not approached either Associate Professor Lewis or Professor Bik To.

10.7. Associate Professor Yong said that while in San Diego she received a call from

Professor Bik To. She received it when she and Associate Professor Lewis were

attending a session of this meeting. Associate Professor Lewis was with her at that

time. There was discussion about who knew what about the erroneous protocol being

used at the FMC, a matter that Associate Professor Yong said she also had not known

about120. Professor To forwarded a chain of emails to Associate Professor Yong

concerning the matter which prompted Associate Professor Yong on that day, namely

Saturday 14 February 2015, to send a long email to Professor To copied to Associate

Professor Lewis in which she asserted that if the FMC was using their protocol it had

come with a caveat that they had to take responsibility for not noting that the dose was

discordant with the ALLG M15 protocol. Associate Professor Yong also maintained

that Associate Professor Kuss’ assertion that the FMC pharmacist did not have access

to the M15 protocol was not a valid reason to excuse them because the document was

easily obtained. She asserted in her email that she wrote her own chemotherapy scripts

directly following the ALLG M15 document. This of course accords with her evidence

in relation to the prescription for Ms MR, but she also asserted that even if she had used

the RAH protocol which provided for 1 g/m2 once daily she would have noted the

discrepancy immediately because:

'.. all registrars and consultants should realize this dose is such a low dose, and at least

check or ask someone why it was such a low dose?' 121

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Associate Professor Yong added that the affected patients, save and except for hers,

‘had their registrars or consultants write this lower AraC dose without thinking!’.

10.8. Also in that same email Associate Professor Yong said that she had not contacted the

other four RAH affected patients but gave a description of the manner in which she had

dealt with the error in relation to her patient (whom we know to be Ms MR) who at the

last minute had been spared a second erroneous cycle as a result of Associate Professor

Yong’s intervention on 16 and 19 January. In her email Associate Professor Yong

stated that she had told the patient that they were giving her twice daily dosing for her

second cycle as she had tolerated the initial lower dose well. She had explained to the

patient that the lower than usual dosing in the first cycle had been administered because

they had not wanted to give her too high a dose in case she experienced complications,

in other words the first cycle had not involved error but had been administered in

accordance with proper and considered clinical practice. In her evidence before the

Court Associate Professor Yong acknowledged that this advice had been deliberately

deceptive insofar as it had been calculated to mislead Ms MR into believing that the

lower dose had not been given in error but had been administered on legitimate clinical

grounds122. I should add that having regard to this extraordinary admission I exercised

caution in relation to the question of Associate Professor Yong’s credibility, but I

nevertheless found her to be an essentially truthful witness. That said, the impression

that the error and the underdosing was in the minds of some a matter to be essentially

swept under the rug is all the more enhanced.

10.9. As for Professor To, he told the Court that the first he heard of an error was when his

wife, Mrs Che To, had alluded to it in a domestic conversation around 20 January 2015,

probably when driving home from work. This error had only been described in very

general terms to him. Professor To had been satisfied with an assurance by his wife

that the error had been corrected. He had not asked her any further questions which is

utterly perplexing.

10.10. It appears that Associate Professor Yong had not told her superior, Professor To, about

the error and this is perhaps explicable on the basis of an assumption that she may have

made that Professor To would be aware of the error through other means. However,

this is not a professional way of going about things and there is no doubt that Associate

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Professor Yong should have notified Professor To of the matter and not have waited for

him to raise the matter with her when she was overseas. Associate Professor Yong told

the Court that she was waiting for either Associate Professor Lewis or Mrs To to raise

the matter with her. When Associate Professor Yong was cross-examined by Mr

Griffin QC along the lines that Associate Professor Yong as a senior member of the

haematology team should have spoken to Associate Professor Lewis and Professor To

in a collegial manner and have raised with them the question of what should be done in

respect of patients affected by the error, she agreed but seized upon two mitigating

circumstances. She said that they were so busy and that it did not cross her mind to say

anything to them as Associate Professor Lewis knew and she believed Professor To

also knew. She also said she was not in the fashion of telling her bosses what to do.

She also seized upon a cultural matter insofar as having come from a patriarchal

Chinese family where one does not tell one’s seniors what to do, she had been reluctant

to raise the matter with her seniors in this instance. Clearly, this was unacceptable

having regard to the need for professionalism, candour and the need to ensure that the

affected patients were given appropriate consideration.

10.11. I have also mentioned the role of the pharmacist at the RAH. It will be remembered of

course that members of the pharmacy department had a significant hand in the

discovery of the error at the RAH. It is asserted by Mr Phatak that when he and

Associate Professor Yong spoke on the morning of 19 January 2015 he asked Associate

Professor Yong what had to be done about making a report in the SLS. Mr Phatak gave

evidence that Associate Professor Yong responded by saying that she would handle it.

Associate Professor Yong’s version of the conversation is that she told Mr Phatak that

she did not say that and that in any case she did not know how to compile an SLS report.

In this Associate Professor Yong was not on her own. Witness after witness claimed

that they did not know how to use the SLS system and/or said that they had believed

that it was a system exclusively to be used by nursing staff. As a means of notifying

and correcting the underlying factor in an adverse medical event in a public hospital

system, the SLS leaves much to be desired.

10.12. There was further interaction between pharmacy staff, including with Ms Kirsty

Scarborough who was the Acting Deputy Director of Clinical Pharmacy at RAH and

who was the direct line manager to Mr Baldock and Mr Phatak. There was an issue as

to whether or not Ms Scarborough in turn informed Mr Christopher Doecke who was a

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Director of Pharmacy Services at the Central Adelaide Local Health Network and who

was her manager. What is apparent is that on 12 February 2015 Mr Doecke telephoned

Professor Peter Bardy who was the Clinical Director of Cancer Services at the RAH to

inform him of the error.

10.13. On the afternoon of 20 January 2015 one of the pharmacists, Mr Baldock, sent a list of

the RAH affected patients to Associate Professor Yong. Mr Baldock was not aware

that the FMC had adopted the erroneous protocol.

10.14. In the event SLSs were filed by Ms Scarborough, although this did not occur until 17

February 2015.

10.15. The issue is somewhat academic as no amount of SLSs filed within the RAH framework

would have alerted the FMC haematologists or pharmacists as to the error due to the

segregation of the haematology clinical staff as between both hospitals. This is a clear

deficiency in clinical governance that I find needs immediate rectification if it has not

already occurred.

11. The discovery of the error at the FMC

11.1. As indicated earlier the error in the FMC template could have been recognised on

Tuesday 20 January 2015 if the FMC haematologists who were the recipients of

Mrs To’s email of that date had paid attention to its content. Allowing for the fact that

the email related to an RAH protocol for consolidation chemotherapy, and that the

email was an unsatisfactory means of communicating the fact of the error, it will be

remembered that in 2014 Associate Professor Kuss and Dr Beligaswatte had discussed

the adoption of the RAH protocol at the FMC and that subsequently the protocol had

been adopted and encapsulated in the template that was prepared by Ms Teh. Even

allowing for the fact that Mrs To’s email was somewhat cryptic and that it did not

actually identify Associate Professor Yong’s twice daily administration edict as

reflecting the correction of an error, the email still required attention, particularly by

Dr Beligaswatte as he had the imminent responsibility of preparing Mr Knox’s

prescription for his second chemotherapy cycle commencing that week. I will deal with

the circumstances concerning Mr Knox’s second cycle in the next section.

11.2. In a previous section I dealt with the unsatisfactory aspects of Dr Beligaswatte failing

to absorb the information in Mrs To’s 20 January email. On Friday 30 January 2015

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Dr Beligaswatte was working at the RAH. In fact it was his last day of work at that

hospital. Dr Beligaswatte told the Court that it was not until 30 January that the

protocol error was drawn to his attention123. He said he was told about this by Mr Abhi

Phatak, one of the pharmacists at the RAH. The conversation took place at that hospital.

By way of background, one of the affected RAH patients, a Mr G, was expected to

attend the RAH that afternoon. Dr Beligaswatte was intending to see him.

Dr Beligaswatte said that Mr Phatak drew Dr Beligaswatte’s attention to the fact that

Mr G was one of the affected patients. Dr Beligaswatte said that nobody in the ten days

since Mrs To’s email of 20 January 2015 had attempted to contact him about the error.

He had been back at work following a period of leave since Monday 19 January.

Dr Beligaswatte told the Court that the error was described to him as involving the once

daily versus twice daily issue.

11.3. Dr Beligaswatte told the Court that Mr Phatak told him that other affected patients had

been prescribed a ‘catch-up dose’ of cytarabine and so on that basis Dr Beligaswatte

prescribed an additional cycle for Mr G. In cross-examination Dr Beligaswatte

acknowledged in effect that there was no evidence to support such a strategy. In the

event, Mr G’s catch-up cycle took place in early February.

11.4. In his evidence Mr Phatak, who testified at a time before Dr Beligaswatte testified, told

the Court in answer to questions from Dr Beligaswatte’s counsel, Ms Cliff, that he did

not recall raising with Dr Beligaswatte the matter of Mr G’s chemotherapy or recall

having a conversation in relation to the difficulty with the protocol. When it was put to

Mr Phatak that on 30 January 2015 he had explained to Dr Beligaswatte what had taken

place on 19 and 20 January 2015 in connection with the discovery of the protocol error

at the RAH, Mr Phatak said he could not recall this. Specifically, when it was put to

him that he had asked Dr Beligaswatte what he was going to do about it in the context

of further treatment of the patient Mr G he said he could not recall that either. It is odd

that Dr Beligaswatte, who had been the main driving force in connection with the

introduction of the protocol at the FMC and who also worked at the RAH, would not

have heard about the error in the RAH protocol between 19 and 30 January 2015. On

the other hand, Mr Phatak did not deny having had the conversation with

Dr Beligaswatte and there is no evidence to demonstrate that Dr Beligaswatte had any

knowledge of the error at any time prior to Friday 30 January 2015. That said, he had

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been a recipient of the email of Mrs To of 20 January 2015. If he read it, he of all

people could hardly have failed to determine the significance of Associate Professor

Yong’s indication that twice daily administration of cytarabine was called for. That he

either did not read it, or that its content meant nothing to him, is evidenced by the fact

that later in the week he prescribed the erroneous cytarabine regimen for Mr Knox.

11.5. Regardless of when it was that Dr Beligaswatte first knew of the protocol error at the

RAH there is no evidence that Dr Beligaswatte shared this revelation with any person

at the FMC until at the earliest Wednesday 4 February 2015. Dr Beligaswatte worked

at the FMC on Monday 2 February and Tuesday 3 February 2015 and did not say

anything to any person about the incorporation of the RAH error into FMC protocols.

When cross-examined about his failure on 30 January to say anything to Mr Phatak

about the fact that the same erroneous protocol was in use at the FMC, he said that his

focus had been to decide what he had to do in respect of the patient Mr G whom he was

seeing that day and that secondly he had been given to understand that the RAH ‘was

already investigating this’, but acknowledged that the RAH did not know that the FMC

was using the protocol124. He also acknowledged that this would have been a good

opportunity to let the RAH know about the fact that the error had been imported to the

FMC. 125. He also said that it did not occur to him to let Ms Teh at the FMC know about

the error as he was concentrating on his patient’s needs and he did not have ‘any

immediate problems in the coming days’126. As far as the patients who to that point in

time he had already treated at the RAH and the FMC in accordance with the erroneous

protocol, that is to say Mr McRae, Mr G, Ms Crannage and Mr Knox, he said ‘I

wouldn’t have remembered all the patients what (sic) I would have treated in the

preceding months’127.

11.6. Dr Beligaswatte told the Court that as he knew that no patient was due to receive

consolidation chemotherapy at the FMC in the immediate future he decided to raise the

issue of the error at an FMC haematology group meeting on Wednesday 4 February

2015. Dr Beligaswatte also told the Court that as a follow up on the meeting he asked

Ms Teh to confirm which patients at the FMC had received erroneous treatments

pursuant to the protocol128. There is some controversy as to whether this revelation was

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made at this haematology group meeting or at the following Wednesday’s meeting.

The controversy is fuelled by the fact that Ms Teh who would have been in attendance

at both meetings does not appear to have acted upon the revelation until at the very

earliest Wednesday 11 February 2015 which was the day of the next meeting. Associate

Professor Kuss, the head of haematology, was not at the meeting of 4 February 2015 as

she was away. However, she was at the meeting on 11 February 2015.

11.7. Regardless of whether or not the issue was formally mentioned at the 4 February 2015

meeting there is support for the proposition that Dr Beligaswatte disclosed the error to

a more senior FMC consultant on that day. I have already mentioned Dr Douglas

Coghlan. Dr Coghlan told the Court that he had no recollection of receiving Mrs To’s

email of 20 January 2015 in which it was said that Associate Professor Yong had stated

that cytarabine should be administered twice daily129. He said that the matter was first

raised with him at approximately 10:25am on Wednesday 4 February 2015 when he

was approached by Dr Beligaswatte as they were about to go into the ward meeting.

11.8. Dr Coghlan told the Court that Dr Beligaswatte told him that after he had returned from

leave the previous week, Dr Beligaswatte had been told by a pharmacist at the RAH

that Associate Professor Yong had identified an error in the consolidation protocol that

had resulted in patients being given once daily cytarabine administration when the

intention had been twice daily. Dr Beligaswatte sought advice on what he should do at

that point to which Dr Coghlan asked whether there was any urgent corrective clinical

action that needed to be undertaken. Dr Coghlan said that there was some discussion

with Dr Beligaswatte about the clinical status of affected patients. Dr Beligaswatte told

him that after Associate Professor Yong had detected the error there had been

discussion with other practitioners at the RAH including Associate Professor Lewis and

that they were aware of the error and were taking action to address it. Dr Coghlan

advised Dr Beligaswatte that ‘the system’ needed to be made aware of what had

happened so that an analysis could be undertaken and an appropriate response be

delivered. He therefore advised Dr Beligaswatte to document everything and told him

that the issue should be raised as a matter of high urgency with Associate Professor

Kuss upon her return to work. There was also the matter of the patients being provided

with an explanation as to what had taken place.

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11.9. Mr Higham was an inpatient at the FMC at that time. Mr Higham had received his

second cycle of consolidation chemotherapy during January but was in hospital with

afebrile neutropenia. There was discussion between Drs Beligaswatte and Coghlan

about Dr Beligaswatte needing to speak to Mr Higham on the following day.

11.10. Although Dr Coghlan related the conversation with Dr Beligaswatte as having taken

place before the ward meeting on Wednesday 4 February, he told the Court that he had

no recollection of the matter being discussed within the ward meeting itself. When

Dr Beligaswatte was cross-examined by Mr Trim QC on behalf of Dr Coghlan, he said

that he could not recall approaching Dr Coghlan and telling him about the underdosing

issue before the ward meeting and could not recall any of the content of the discussion

as put to him by Mr Trim QC. He insisted that he told the 4 February meeting and those

present at it that he had been informed by one of the pharmacists at the RAH that there

had been an underdosing error and that each relevant consultant at the RAH was

managing their patients accordingly. He told Mr Trim QC that he could not recollect

that this disclosure was actually made privately to Dr Coghlan before the meeting.

11.11. Dr Beligaswatte told the Court that he told Mr Higham of the error on 5 February 2015.

In Mr Higham’s progress notes there is a relevant note timed at 10:15am on 5 February

2015130. It appears to be a note made in respect of a consultation between Mr Higham

and Dr Coghlan that day. In the note there is no mention of anything about an error in

Mr Higham’s chemotherapy, but there is a notation to the effect that further

chemotherapy would be discussed with Dr Beligaswatte. There is also a note timed at

8:30am on 6 February 2015 that refers to a discussion with Dr Beligaswatte that had

taken place the day before. It refers to the ‘stuff up’ (presumably Mr Higham’s

descriptor) regarding the cytarabine dose and Mr Higham needing more as a result.

There is a further notation regarding a discussion with the patient concerning ‘the State-

wide protocol error’ and the fact that his family were quite stressed about that.

Mr Higham is recorded as being anxious and angry. It appears, therefore, that

Dr Beligaswatte did speak to Mr Higham on 5 February 2015 and disclosed the error to

him on that occasion. However, that does not mean that Dr Beligaswatte disclosed the

matter to the 4 February meeting at large as distinct from mentioning it to Dr Coghlan

privately prior to the meeting. I think it is more likely that the real impetus for

130 Exhibit C55, Tab 8

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Dr Beligaswatte speaking to Mr Higham on 5 February was his conversation with

Dr Coghlan on 4 February.

11.12. Mr Higham would undergo his catch-up cycle commencing on 2 March 2015. In the

event, Mr Knox would also undergo a catch-up cycle commencing on 25 February

2015. The cycles for both men involved the correct twice daily dosing. The timing of

and the possible beneficial effect of these additional cycles, if any, was the subject of

commentary which I will deal with in a later section of these findings.

11.13. Associate Professor Kuss was on leave until 18 January 2015. She was also on leave

from 28 January to 2 February 2015 inclusive. Associate Professor Kuss was at a

meeting in Sydney on Wednesday 4 February and Thursday 5 February 2015. She

therefore did not attend the ward meeting at FMC on Wednesday 4 February 2015

which was the meeting at which Dr Beligaswatte said he disclosed the error. However,

Associate Professor Kuss did attend the meeting on Wednesday 11 February 2015. In

her oral evidence Associate Professor Kuss recalled that Dr Beligaswatte was present

as was the pharmacist Ms Teh. She said that at that meeting Dr Beligaswatte told those

present that an error had been detected in the RAH protocol. She said that

Dr Beligaswatte explained the significance of the error, that it had originated in an RAH

protocol, that it had been transferred to the protocol template used at the FMC and that

a number of patients had been treated at the FMC in accordance with that erroneous

template. Associate Professor Kuss told the Court that her reaction was one of great

concern and that she immediately recognised the need to investigate who had been

affected and what their current clinical status was. She asked for the protocol to be

withdrawn. Associate Professor Kuss’ position was that she knew nothing of the error

until this meeting. She told the Court that Dr Coghlan had been at the meeting and

although no person at the meeting gave any indication that they had prior knowledge of

the issue, she believed that Dr Coghlan had been aware prior to the meeting. That of

course would align with Dr Coghlan’s evidence as already discussed. Associate

Professor Kuss said that she had been at work on certain days in January and February

2015 and had worked at FMC on some days, but no person had drawn the error to her

attention.

11.14. Associate Professor Kuss also told the Court that Dr Beligaswatte told her that he had

been made aware of the error on 30 January 2015 which accords with Dr Beligaswatte’s

own evidence. When she asked him why it had taken so long for the FMC to be

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addressing the problem, Dr Beligaswatte had told her that his primary concern had been

identifying the affected patients and ensuring patient safety and that he had been

requested to speak to a patient at the RAH. He had spoken to the pharmacist about the

error and had given instructions that if appropriate a top-up dose of chemotherapy

should be offered to the patients.

11.15. Associate Professor Kuss was instrumental in having Ms Teh identify the patients at

FMC who had been affected by the error. At the meeting she instructed Ms Teh to do

this131. She did not believe that Dr Beligaswatte had named all of these patients at the

meeting. The affected persons were Mr Knox, Mr Higham, Ms Crannage and two

others.

11.16. I have seen no written evidence of any formal communication within the FMC about

the discovery of the error prior to 11 February 2015. On this date, by email timed at

11:46pm, Associate Professor Kuss advised a number of individuals within SA Health

of the protocol error which, as she described it, had led ‘to a significant unintentional

reduction in AraC in the consolidation phase of treatment’132. At 10:36am on

12 February 2015 Associate Professor Kuss emailed Associate Professor Lewis at the

RAH forwarding her email of the night before. Her email to Associate Professor Lewis

commented, among other things, on the failure by the RAH to alert the FMC to the

problem and it sought Associate Professor Lewis’ ‘take on the issue’133. It will be

remembered that 12 February 2015 was the day on which Associate Professor Lewis

thawed from his hitherto ‘frozen’ condition.

11.17. I accept Associate Professor Kuss’ evidence that she had no knowledge of the error

until the ward meeting of 11 February 2015.

11.18. Ms Teh told the Court that she found out about the protocol error when Dr Beligaswatte

informed the participants of it at one of their weekly haematology meetings134.

According to Ms Teh, at that meeting Dr Beligaswatte said that there was an issue in

relation to an RAH protocol involving an error in respect of the cytarabine dose and

that the FMC had also experienced the error as well. At that meeting Associate

Professor Kuss asked her to identify the affected patients. As seen, Associate Professor

131 Transcript, page 2002 132 Exhibit C50, page 71 133 Exhibit C50, page 71 134 Transcript, page 2382

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Kuss corroborates this. Ms Teh said that on the same day she searched the dispensing

history and identified a number of patients. In her evidence Ms Teh was clearly

speaking of the ward meeting of Wednesday 11 February 2015, not Wednesday

4 February 2015. This is so because there is no doubt that Associate Professor Kuss

had not been present at the earlier meeting. There is no evidence that Ms Teh acted

upon her knowledge of the error prior to 11 February 2015. On that day she was able

to compile and email a list of the patients who had been affected135. This email was

sent to a number of persons within SA Health including Associate Professor Kuss and

Dr Beligaswatte. Dr Beligaswatte for his part sent an email to Ms Teh on 11 February

2015 attaching the ALLG M15 protocol pointing out the relevant regimens136. This was

sent to her to enable her to update the unit templates. On the same day a template for

what has become known as a top-up consolidation cycle for Mr Higham was created by

Ms Teh and signed by Dr Beligaswatte. It called for twice daily administration. As

indicated I will mention something of the top-up cycles in due course. The irony of

Dr Beligaswatte sending Ms Teh the ALLG M15 study document will not be lost on

the reader because this was the very document that he undoubtedly should have

provided to her in July of the previous year when she requested the same from him but

was told that in effect nothing existed and that she should work off the RAH protocol.

11.19. Dr Beligaswatte asserted in his evidence that Ms Teh had been instructed on 4 February

2015 to prepare the list of affected patients. Ms Teh in her evidence rejected that

suggestion saying in effect that she would not have delayed such an important exercise

and have delayed reporting on it until 11 February 2015. In my view it is more likely

that she became aware of the error, as she says, on 11 February 2015, after she was told

Associate Professor Kuss to prepare the list. It is more likely that she did so on that day

and reported on that day. It seems to me highly unlikely that she would have neglected

to perform such an exercise for a whole week and without somebody being on her case

about the delay. I prefer her evidence to that of Dr Beligaswatte. I find that although

Dr Beligaswatte informed Dr Coghlan of the error on 4 February and informed the

patient Mr Higham of the error on 5 February, he did not inform a ward meeting about

the error until Wednesday 11 February 2015.

135 Exhibit C31a 136 Exhibit C47b

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11.20. I make the following findings:

• The error within the FMC protocol template was not recognised as a result of Mrs

To’s email of Tuesday 20 January 2015. This, in part, was due to the fact that

although the email referred to the need for cytarabine to be administered twice daily,

it did not expressly refer to the fact that there was a protocol error relating to that

issue.

• Associate Professor Yong was a recipient of Mrs To’s email of 20 January 2015.

There was reference to herself in that email. I find that Associate Professor Yong

should have ensured that the content of that email, or the content of a follow up

email, referred to the identification of an error in the RAH protocol. This may have

at least prompted the recipients of the email at the FMC to check the FMC protocol

template.

• There is no evidence that any person at the FMC became aware of the error within

the FMC protocol template until 30 January 2015 when Dr Beligaswatte says he

was told about it. In the intervening period Mr Knox at the FMC was administered

an entire second consolidation cycle in accordance with the erroneous protocol.

Dr Beligaswatte was responsible for that erroneous cycle.

• Dr Beligaswatte was a recipient of Mrs To’s email of 20 January 2015.

Dr Beligaswatte did not appreciate the significance of the reference to Associate

Professor Yong indicating that there was a need for cytarabine to be administered

twice daily. He of all people should have appreciated the significance.

• I find that although Dr Beligaswatte spoke to Dr Coghlan about the error on

Wednesday 4 February 2015, and on the day after spoke to Mr Higham and

disclosed the error to him, Dr Beligaswatte did not disclose the error to the ward

meeting of 4 February 2015.

• I find that the error within the FMC protocol template was not formally

communicated to any persons in authority at the FMC until a ward meeting of 11

February 2015. I find that this was manifestly too late.

• I find that Ms Teh did not know of the FMC protocol error until the ward meeting

of 11 February 2015.

• I find that Associate Professor Kuss did not know of the FMC protocol error until

the ward meeting of 11 February 2015.

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12. The circumstances relating to the underdosing of Mr Knox

12.1. I deal with Mr Knox’s circumstances at this point because his second cycle of

consolidation chemotherapy occurred after the protocol had been discovered at the

RAH on 19 January 2015 and after Mrs To’s email of 20 January. Mr Andrew Knox

was born on 13 December 1948 and was therefore still 65 years in November of 2014.

He was diagnosed with AML in late November 2014. Mr Knox has survived despite

relapse. The expert evidence that I will mention in due course tended to suggest that

for a number of reasons Mr Knox could have hoped for a better outcome in relation to

the treatment of his illness. Without going into detail at this point these favourable

circumstances included his age, a lack of comorbidities, the cytogenetics connected to

his AML and molecular factors.

12.2. Mr Knox underwent induction chemotherapy at the FMC, beginning on 27 November

2014. The induction chemotherapy was successful in that Mr Knox achieved a

complete remission.

12.3. Mr Knox then underwent two cycles of consolidation chemotherapy. Mr Knox

underwent the first cycle between 29 December 2014 and 2 January 2015. The

prescription for this cycle was based on the FMC protocol template which of course

provided for the erroneous once daily administration. The prescription was signed

electronically by Dr Beligaswatte.

12.4. The Court heard that following his first cycle Mr Knox experienced febrile neutropenia

which required admission to the FMC. However, by 22 January 2015 he was ready for

the second cycle of chemotherapy. The prescription for that second cycle was signed

by Dr Beligaswatte on that day and was in identical format to the prescription for the

first cycle. It provided for only once daily administration of cytarabine. This cycle

commenced on 22 January. This prescription was signed two days after Mrs To’s email

to the effect that cytarabine should be administered twice daily, the email being

prompted by Associate Professor Yong’s discovery of the error between Friday

16 January and Monday 19 January 2015. That email was sent to the multiple

recipients that included Dr Beligaswatte and Dr David Ross to whom I have referred

earlier and who was also, like Dr Beligaswatte, a haematologist who worked at both the

RAH and FMC. The circumstances surrounding Dr Beligaswatte not registering the

content of Mrs To’s email have been discussed.

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12.5. Mr Knox underwent his second cycle of consolidation chemotherapy commencing on

Thursday 22 January 2015. The cytarabine was administered on that day and on 24 and

26 January 2015, that is to say on alternate days. It was administered once daily

notwithstanding the fact that this frequency of administration had been recognised as

erroneous only a matter of days prior. As seen, Dr Beligaswatte himself told the Court

that he did not become aware of the error until 30 January 2015 which was the last day

of his work at the RAH. Dr Beligaswatte told the Court that he did not recall reading

the email of Mrs To of 20 January 2015 and was only shown the email many months

later. This was simply inexcusable and his erroneous prescription for Mr Knox

following the discovery of the error at the RAH and after the receipt of Mrs To’s email

of 20 January despite its inadequacies is especially egregious.

12.6. I have from time to time referred to Dr David Ross. Dr Ross obtained his basic medical

degrees from the University of Adelaide in 1996. Dr Ross is also a PhD which he

obtained from the University of Adelaide in 2009. The topic of his doctoral dissertation

was minimal residual disease in chronic myeloid leukaemia. He has been employed as

a consultant haematologist since 2009. He too is employed by SA Pathology.

12.7. Dr Ross worked at both the RAH and the FMC as a haematologist. He told the Court

that across the course of a year he spent 30% of his time at FMC and 70% of his time

at the RAH. This arrangement began in approximately the second half of 2013.

Dr Ross’ duties at the RAH included diagnostic haematology and the provision of

laboratory services including the supervision of laboratory trainees. His clinical

responsibilities were initially limited to the outpatient clinic, although he had

subsequently been added to the ward roster. At FMC he had responsibility on a rotating

basis for inpatient and diagnostic haematology. He was also involved in outpatient

clinics, primarily focussed on chronic myeloid leukaemia which was the subject of his

PhD. As well, he was involved in connection with Philadelphia-negative

myeloproliferative neoplasms. These were his specialties in July 2014.

12.8. Dr Ross told the Court that he was familiar with the treatment of AML. Asked by his

counsel Mr Besanko as to his familiarity with that disease and the treatment of it he

said:

'My familiarity would be equivalent to any practising clinical haematologist.' 137

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However, he said that AML was not his specialty.

12.9. Dr Ross told the Court that the haematology unit at the FMC utilised chemotherapy

protocols and that he knew that they were housed within Excel documents which

effectively contained the chemotherapy prescription. Dr Ross said that at one point he

had developed a protocol for AML but had not been involved in the development of

protocols at the FMC since July 2014. However, he told the Court that he was aware

of how protocols were developed at the FMC at that point in time, explaining that if a

new protocol was proposed on the basis of new information becoming available or

because of a need to change an existing protocol, usually one consultant would take

responsibility for that task. The ‘published protocol’ based on the publication of new

results would be converted into one of the Excel templates which reduced the protocol

to a concise prescription for the patient. That process is undertaken in conjunction with

a departmental pharmacist. His understanding was that once the consultant and

pharmacist had prepared the template it would be circulated to the rest of the department

for comment. Any comments were then responded to and a new version was prepared

if appropriate. The resulting document would then be tabled at the end of a

departmental meeting138.

12.10. Dr Ross was asked about protocol development at the RAH. He said that he had not

been involved in the development of any protocol at the RAH since July 2014. He told

the Court of his understanding of how protocols were housed at the RAH and of the

differences between RAH procedures and those at the FMC. His understanding of RAH

protocol development was that a disease group leader or leaders would take on the job

of reviewing protocols. Once a protocol was amended by a consultant or the consultants

in question, it would be circulated among the ‘disease group’ for comment. Once the

disease group had agreed on a protocol it would be presented in a department protocol

meeting139.

12.11. Dr Ross is a member of the ALLG. Although Dr Ross was not on the AML

subcommittee of the ALLG, he had been aware of discussion among members of the

ALLG concerning a reduction of the dose of cytarabine for elderly AML patients in the

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consolidation phase of chemotherapy. He knew that there was discussion within the

ALLG about standardising approaches to induction consolidation chemotherapy140.

12.12. I mention this in some detail because Dr Ross would be the recipient of relevant emails

both at the time of the promulgation of the new and erroneous protocol at the RAH

in July 2014 as well as the email of Mrs To of 20 January 2015 in which the assertion

was made that Associate Professor Yong wanted to bring to the attention of the

recipients that cytarabine was to be given twice daily. The other relevant matter as it

affects Dr Ross is that he saw Mr Knox on 22 January 2015 which was the day of

Mr Knox’s first administration of cytarabine in his second cycle. He also saw Mr Knox

on 24 January 2015 which was the second day of cytarabine administration as part of

that second cycle. On neither day did Dr Ross identify any irregularity in the cytarabine

administration notwithstanding the fact that he was a recipient of Mrs To’s email of

20 January 2015 in which it was stipulated that cytarabine was to be administered twice

daily.

12.13. Dr Ross had not been responsible for either of Mr Knox’s consolidation chemotherapy

prescriptions. However, it is to be noted that at the FMC in August 2014 he had been

the authorising haematologist in respect of the consolidation chemotherapy for one of

the ten affected patients, a Ms Mc. That prescription was written on the erroneous FMC

template prescribing once daily administration. Dr Ross explained that at the FMC they

simply used the electronic template. When shown the prescription for Ms Mc by his

counsel Mr Besanko, Dr Ross said that he was now aware that it contained an error but

there was nothing that would have immediately stood out as unusual. He appreciated

now, of course, that the template should have provided for twice daily administration

and not once daily administration141. It is arguable that the involvement of Dr Ross in

the prescription for Ms Mc in 2014 was an opportunity to have corrected the FMC

protocol, but Dr Ross said that he did not identify that the frequency of the dose of

cytarabine as recorded on the prescription template should have said twice daily.

Dr Ross said:

'Well, clearly I deeply regret not having detected that there was an error in the document

but I was focussing my attention on checking the variable parts of the protocol which are

those that pertain to the specific patient. Since this is an approved departmental protocol

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which has already gone through a checking process I am not consciously reviewing the

fixed elements of the protocol.' 142

12.14. Dr Ross told his counsel Mr Besanko that as far as consolidation chemotherapy in 2014

and 2015 was concerned he knew that generally speaking the cytarabine regimens for

consolidation in patients over the age of approximately 55 to 65 years would involve

cytarabine of approximately 1g/m2 per day, ‘typically on six consecutive days or the

equivalent dose divided twice daily on alternate days’. In the case of Ms Mc, his

intention had been simply to give her the regimen that the FMC Haematology

Department had apparently agreed upon and which was reflected in the template

document. Asked by his counsel whether he should have identified that the frequency

should have been described as twice daily, he said:

'I clearly wish that I had, but I'm not certain that I should have done given the nature of the

document.' 143

12.15. Thus it was that the error was not identified in August 2014.

12.16. Dr Ross told the Court that he had no recollection of any involvement in the

management of Mr Knox. However, it is apparent from Mr Knox’s progress notes that

on Thursday 22 January 2015 he saw Mr Knox and determined that there would be no

change to the current plan in respect of his treatment. There is a specific note, ‘continue

𝑐 Chemotherapy’ with a reference to that note being the first day of that

chemotherapy144.

12.17. The note relating to Dr Ross’ attendance upon Mr Knox on 24 January 2015, which is

decipherable as having occurred at 9am, stated that the plan was to continue ‘as per

protocol’145.

12.18. Given that Dr Ross saw Mr Knox on the first two days of his cytarabine consolidation

chemotherapy, and that Dr Ross had been a recipient of Mrs To’s email of 20 January

specifying twice daily administration, it called for an explanation as to why Dr Ross

would not have recognised on either or on both of the two occasions on which he saw

Mr Knox that Mr Knox was not receiving cytarabine chemotherapy in accordance with

Mrs To’s email.

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12.19. Dr Ross acknowledged that he was a recipient of Mrs To’s email of 20 January 2015.

He said he did not recall receiving or reading it but that it was likely that he read it

in January or February 2015 given that it was his usual practice to read departmental

correspondence146. Asked as to whether it was likely that he read the attachment to

Mrs To’s email which was the updated and corrected RAH protocol, he said it would

not be likely because it would not have appeared as being particularly relevant to his

practice147. The point needs to be made, however, that one would not have needed to

read the attachment to determine that the protocol called for twice daily administration

because it was spelt out in the body of Mrs To’s email. Moreover, it said that Associate

Professor Yong, who was a colleague of Dr Ross at the RAH, wanted to bring that

requirement to the recipients’ attention, including of course the attention of Dr Ross

who was one of those recipients.

12.20. Asked by me whether he may have reviewed Mr Knox’s prescription if he had taken

on board the information contained in Mrs To’s email, he responded that it was unlikely

that he would have looked at Mr Knox’s prescription because of the use of the pre-

printed proforma template and:

'Therefore as long as any changes to the protocol are reflected in that document, there is

no reason to go and check it in subsequent months.' 148

12.21. Dr Ross was asked whether he may have reviewed Mr Knox’s prescription if Mrs To’s

email had spelt out in clear terms that the original protocol had been in error by

specifying once daily when it should have specified twice daily. To this Dr Ross said

that if the matter had been raised as an error in departmental procedure it was likely that

it would have been in the forefront of his mind. The following question and answer

were given:

'Q. So any patient possibly affected by the error or by the correction of the error, such as

Mr Knox, you might have reviewed his prescription on 24 January.

A. In the circumstance if that had been raised as an error near to that time, then, yes.' 149

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This to my mind classically illustrates the point that Mrs To’s email was inadequate

because it did not draw pointed attention to an actual error. The reality is that Associate

Professor Yong should have seen to it that it did.

12.22. It will be remembered, of course, that Mrs To’s email originated from the RAH and

that its content was expressed in an RAH context. This would raise a question as to

whether or not a recipient would have identified that the email might relate to FMC

protocols as well. Dr Ross was asked about this issue. At first he stated that he was

aware that both hospitals were meant to be using the same protocol which was aligned

with the agreed ALLG procedure150. Dr Ross then said that some protocols were

common to both hospitals but not all and that at the time of receiving the email he would

not have known that the protocol was one that was used at both the RAH and the FMC

and would have needed to check151. However, Dr Ross ultimately agreed with the

proposition put to him by Mr Griffin QC that if he had read Mrs To’s email he would

have been aware that the protocol referred to in the email may have had application at

the FMC as well152.

12.23. Dr Ross said it did not occur to him to check Mr Knox on day one of his chemotherapy

to see whether the protocol was correct or not, but said that there was nothing in

Mrs To’s email to indicate to him that it necessitated a change to practice at the FMC153.

12.24. One matter that Dr Ross did acknowledge which is important is that if a person had

shown him a document and had said that there was going to be once daily administration

of cytarabine on days 1, 3 and 5, and that this was an unchecked protocol which he had

never seen before, he expected that he would have questioned that and would have

wanted a direct explanation as to why it departed from what he would normally have

expected154. Dr Ross agreed with counsel assisting Ms Kereru that cytarabine dosages

of 1g/m2 daily on every second day is quite untoward; saying:

'Looking at it now it is clearly unusual.' 155

This was so having regard to the choices of twice daily administration on alternate days

or continuous infusion, neither of which are reflected in the erroneous protocol. He

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said that it had not registered with him in the case of Ms Mc in 2014 that he had been

signing off on something that was irregular. This was so notwithstanding the fact that

he would have received Associate Professor Lewis’ email on 19 July 2014 setting out

bd administration. Dr Ross said he had no recollection of reading Associate Professor

Lewis’ email and although he treated patients with AML, he would have expected that

the changes to a protocol would be correctly documented. He expected that he probably

did read the email and, asked the obvious question as to why he would not have picked

up the irregularity when he had come to sign the prescription for Ms Mc, he said:

'That relies both on an infallible memory and on the assumption that I place no trust in an

approved departmental document.' 156

12.25. To summarise, in July 2014 Dr Ross (a) did not identify any irregularity within the

correspondence that had been sent by Mrs To and Associate Professor Lewis, (b) that

when he signed off on the prescription for Ms Mc he had simply relied on the proforma

FMC template, (c) that when he saw Mr Knox on two occasions in January 2015 he did

not review Mr Knox’s prescriptions, but probably would have done so if he had paid

proper regard to the contents of Mrs To’s email of 20 January 2015 in which twice daily

administration had been directed by Associate Professor Yong.

12.26. It will be seen that what happened in respect of Mr Knox is highly relevant because it

demonstrates the poor quality of clinical governance across two major teaching

hospitals in this State and it also reveals a number of other worrying circumstances such

as the fact that clinicians do not read important emails. Further, clinicians seem to have

a tendency to prescribe chemotherapy by reference to what is in effect a recipe rather

than by having regard to the scientific principles underlying the drug they are

prescribing and to the clinical necessities of the patient. This set of circumstances owes

itself to poor communication, poor clinical governance and a failure by clinical staff to

read important communications.

12.27. In the light of the fact that the protocol error had already been identified at the RAH,

and should have been recognised at the same time at the FMC, the fact that Mr Knox’s

second cycle of consolidation chemotherapy miscarried is completely unforgivable.

There are no mitigating circumstances whatsoever.

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13. Was Mrs Pinxteren ever advised of the error?

13.1. This subject was the topic of some controversy.

13.2. It will be remembered that Mrs Pinxteren underwent only one cycle of consolidation

chemotherapy which concluded on Saturday 17 January 2015. The second cycle of

consolidation chemotherapy was not undertaken because she did not recover

sufficiently from the first cycle and by early March 2015 it was established that she had

relapsed. Her haematologist, Dr Hiwase, was overseas between 18 February and 4

March 2015.

13.3. Dr Hiwase was a recipient of Mrs To’s email of 20 January 2015 in which Associate

Professor Yong’s indication that cytarabine should be given twice daily was reported.

Notwithstanding the receipt of that email Dr Hiwase told the Court that he did not recall

receiving it or reading it and he did not know whether it was likely that he read it in

either January or February 2015157. He told the Court that he did not know when it was

that he first became aware that there had been an error in the protocol, although he

thought that there had been some discussion in the haematology unit about the error

prior to him going overseas in February 2015.

13.4. It is clear that by 26 February 2015 while Dr Hiwase was still away, he was aware that

his patient Mrs Pinxteren’s consolidation treatment had been the subject of the error.

On that day Professor To sent an email to Dr Hiwase the topic of which was the error

and its possible impact upon the treatment of the affected patients, including his patient

Mrs Pinxteren. Professor To advised Dr Hiwase that Mrs Pinxteren was still cytopenic

after her underdosed consolidation and would be having a bone marrow biopsy the

following Monday. As a result, her second proposed consolidation cycle which was

booked to start on that day was cancelled as her blood counts had shown no sign of

recovery at that point. Professor To’s email told Dr Hiwase that he had not informed

Mrs Pinxteren and that this would not happen until the result of her bone marrow biopsy

was known. In that email Professor To requested Dr Hiwase to inform Mrs Pinxteren

of the error. On the same day Dr Hiwase responded to Professor To by way of email.

13.5. According to Dr Hiwase, Professor To’s email was the first he became aware that

Mrs Pinxteren’s treatment specifically had been the subject of the error158. Dr Hiwase

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told the Court that his reaction to that news was one of discomfort. When he returned

to work he said that he had checked the pharmacy script for Mrs Pinxteren because he

could not believe that one of his patients had been involved in the error.

13.6. It appears that Dr Hiwase had seen Mrs Pinxteren on 2 February and 16 February 2015.

There is no suggestion that on either of these occasions he had raised with

Mrs Pinxteren the error. He told the Court that he was not aware of the existence of the

error when he met with Mrs Pinxteren on 16 February 2015.

13.7. It appears that Dr Hiwase next saw Mrs Pinxteren on 11 March 2015 probably in his

clinic room. He did not recall who was present on that occasion. Although he said that

Mrs Pinxteren’s husband was usually present, he could not positively attest to his

presence on this particular occasion. By then it had been established that Mrs Pinxteren

had relapsed. Dr Hiwase told the Court that at this consultation he told Mrs Pinxteren

of the error and tendered an apology for it. There is a note of this consultation in

Mrs Pinxteren’s outpatient progress notes159 in which there is specific reference to

Mrs Pinxteren being informed about the issue of the underdosing ‘due to clerical error’,

with the rider as follows, ‘but explained that in her case it did not matter much’. Also

on that same page of the progress notes is a further note which states as follows:

'Addendum

(4) I apologise the patient for mistake (sic)'

13.8. The legitimacy of this note and in particular its reference to Mrs Pinxteren being

informed about the error and it not mattering much, as well as the note of the apology,

was contested. Mr Griffin QC on behalf of Mr William Pinxteren urged me to find that

Mrs Pinxteren was not told of the error at that point in time or at all, that no apology

was tendered and that the further conclusion should be reached that any notations to the

contrary are a fabrication.

13.9. Dr Hiwase acknowledged that the ‘addendum’ in which the apology is recorded was

not written on 11 March 2015 when he had explained the underdosing error, but was

written after he tendered an apology for the second time on an occasion that he could

not exactly recall160.

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13.10. Dr Hiwase gave evidence that he had been involved in telephone conversations with

both Professor To and Professor Bardy. In the conversation with Professor To,

Professor To had asked him whether he had told his patient about the underdosing error.

Dr Hiwase had responded affirmatively and when asked as to whether he had explicitly

apologised for the error he said that he did not remember the apology verbatim, but that

he had been apologetic. In his conversation with Professor Bardy, Professor Bardy had

asked him whether he had told the patient about the error and whether he had

apologised, to which Dr Hiwase responded by saying that he had been apologetic, but

could not remember his precise wording. Professor Bardy then asked Dr Hiwase to

apologise when he returned from an interstate trip. Dr Hiwase told the Court that

following these conversations Dr Hiwase tendered his apology at a further consultation

with Mrs Pinxteren.

13.11. In Mrs Pinxteren’s outpatient progress notes there are notes of further consultations

over the following weeks, but there is no notation of any apology within those notes

even though Dr Hiwase has seen her repeatedly. That obviously raises a question as to

why if there had been a further consultation at which an apology had been tendered,

there would not be a separate notation of that as distinct from an ex post facto notation

of an apology appended to an already existing notation, namely the progress note of 11

March 2015.

13.12. In cross-examination Dr Hiwase rejected the suggestion that he had neither explained

the chemotherapy error to Mrs Pinxteren nor had apologised for it at any point in time.

One matter that Dr Hiwase did draw my attention to, and in respect of which there does

not appear to be any doubt, is that during the consultation of 11 March 2015 at which

he said he explained the nature of the underdosing, he had drawn on a piece of paper

pictures that illustrated the process of cell recovery. He did this in an endeavour to

explain the process by which Mrs Pinxteren’s blood count had not recovered since her

consolidation chemotherapy161. As well, he explained in some detail what he meant by

the underdosing not mattering much in her case. He said that he had explained to her

that blood counts normally recover within four weeks of chemotherapy and that the

next cycle of chemotherapy is given when the blood counts normalise, but that in

Mrs Pinxteren’s case her blood counts were very low such that she required platelet and

red blood cell transfusions. This meant that in her case the underdosing ‘did not matter

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much’ because even with that half dose her blood count was still low after eight weeks,

meaning that if she had been given a higher dose it would have led to more

complications such as even lower blood counts and severe infections. It is true that

Mrs Pinxteren’s blood counts had not recovered to a point where she was able to

undergo a second cycle of chemotherapy. That Dr Hiwase would want to mitigate the

damage of the error in the eyes of Mrs Pinxteren and her husband does have a ring of

truth. In addition, it seems plain that Mrs Pinxteren’s single but erroneous cycle did

have an effect on her. She failed to recover from it before a relapse was identified.

13.13. However, evidence was given by Mr William Pinxteren, Mrs Pinxteren’s husband, that

he was normally present at consultations that his wife had with Dr Hiwase and that he

and his wife were never told of any error nor were tendered any apology about anything.

There seems little doubt that Mr Pinxteren would have been present on the occasion of

11 March 2015 because he said he was present when Mrs Pinxteren was told she had

relapsed and he also recalled Dr Hiwase drawing a diagram. I find that Mr Pinxteren

was present at the consultation of 11 March when Dr Hiwase told his wife that she had

relapsed. However, Mr Pinxteren was adamant that Dr Hiwase never said anything

about a chemotherapy error or tendered an apology for anything at any time. He

maintains that he did not know anything about any error until after his wife had died.

Also, his wife never mentioned anything to him about an error which would tend to

negate the possibility, although not entirely, that Mrs Pinxteren may have been told

about the error on an occasion when only she and Dr Hiwase were present. As well, the

Pinxteren’s children, Mr Leon Pinxteren and Ms Wendy Cherini are both adamant in

their respective witness statements162 that their mother was at all times completely open

with them about her disease and treatment and that they were never made aware by

their parents about any chemotherapy error. They both assert that if their mother had

been advised of any error in her treatment they would have been told about it. They

assert, as their father also asserts, that the first they were made aware of an error in

treatment was when their father received a letter from SA Health offering

compensation. Mr Leon Pinxteren asserts:

‘Mum never withheld anything from me in relation to her condition or her treatment.

Anytime that she received results she would talk to me about them. I just do not accept

that she was ever told about this under dosing of medication’.163

162 Exhibits C4 and C5 respectively 163 Exhibit C4, page 5

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However, he also asserts,

‘Mum and dad were never the best, at times, in understanding what was going on and

sometimes got confused about what was being discussed, that’s why we were always fully

engaged in what was happening’.

There is no suggestion that either Leon Pinxteren or Wendy Cherini were present on

11 March 2105 when Dr Hiwase told Mrs Pinxteren that she had relapsed. However,

an inference is available from their evidence that if Mrs Pinxteren had been told of the

error, both of them, or at least one of them, would have known about it.

13.14. If as has been argued by Mr Griffin QC on behalf of the Pinxteren family the error was

never disclosed to Mr or Mrs Pinxteren and that no apology was ever tendered by

Dr Hiwase, it would mean that Dr Hiwase has fabricated that part of his evidence in

which he says that he did. As bad if not worse, it would also mean that Dr Hiwase

fabricated notations to the contrary in Mrs Pinxteren’s outpatient progress notes.

Mr Griffin QC urges me to make findings accordingly. Dr Hiwase’s counsel, Mr Trim

QC urges me not to make those findings.

13.15. To my mind it is clear that the issue as to whether or not Mrs Pinxteren was advised

either in general terms about an error in her treatment or specifically about the fact that

she should have received twice daily administration instead of once daily is a relevant

circumstance surrounding Mrs Pinxteren’s ultimate death from the disease for which

she was being treated. Whether any apology was tendered to her and/or to her husband

is also a relevant circumstance. Therefore, it is open for the Court to make findings

regarding those issues.

13.16. In a letter to Mrs Pinxteren’s general practitioner, Dr Mark Vawser, apparently typed

on 1 April 2015 following a further outpatient clinic on 30 March, Dr Hiwase explained

in considerable detail Mrs Pinxteren’s clinical course, but there is no mention of any

chemotherapy error. Indeed, the one single cycle of consolidation therapy is described

in terms, namely ‘intermediate dose cytarabine D1-3 daily dose’ which would be

consistent with a single dosage but on three consecutive days. This prompted

Mr Griffin QC to ask the Court also to find that Dr Hiwase had deliberately refrained

from identifying in the letter any irregularity in Mrs Pinxteren’s treatment and that this

circumstance supported the notion that he had refrained from informing Mrs Pinxteren

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and her husband about the error. I add here that there is nothing in the outpatient

progress note relating to the 30 March clinic about the error or any apology for an error.

13.17. Dr Hiwase said in evidence before this Court that it did not cross his mind to include

reference to the error in his letter to the GP. He denied that he omitted reference to the

error because he did not want the GP to know about it. He acknowledged that he should

have included reference to the issue in the letter and that its absence was regrettable164.

He denied that his reference to daily dosing on days 1 to 3 was deliberately misleading

but acknowledged that it was incorrect165.

13.18. The allegation that Dr Hiwase did not disclose and explain the error to Mrs Pinxteren

nor apologise but subsequently fabricated notations within her progress notes to the

contrary is an extremely serious allegation to make. In my view findings along those

lines would need to be made on cogent evidence in support. I acknowledge of course

that findings to that effect would be made on the balance of probabilities, but I am also

mindful of the principles annunciated by Dixon J in Briginshaw v Briginshaw (1938)

60 CLR 336. A proper reading of Briginshaw does not mean that I would have to be

satisfied beyond reasonable doubt before I made any such findings, but having regard

to the serious nature of such findings and their possible consequences I would need to

be satisfied to a high degree of satisfaction and to ensure that the findings were not

based on questionable evidence.

13.19. There is, I accept, a certain inherent unlikelihood in a responsible medical practitioner

falsifying progress notes, but of course it would not be entirely out of the question. Be

that as it may, the evidence that Dr Hiwase gave to the effect that his prescription was

primarily based on his unquestioning belief that the RAH protocol was accurate and

correct but that one element of his thinking behind the prescription that he wrote for

Mrs Pinxteren was the need to keep her dosages of cytarabine to a minimum having

regard to her clinical circumstances, is inherently credible. Inherently credible also is

that Dr Hiwase might have formed a belief that in Mrs Pinxteren’s case the underdosing

per se would not have had a significant adverse impact, especially as she had failed to

recover from that cycle of chemotherapy. The notation to the effect that the

underdosing did not matter much would be consistent with such a mindset at the time.

It would not be surprising, therefore, that Dr Hiwase would explain the error in terms

164 Transcript, pages 1348-1349 and 1390 165 Transcript, pages 1366-1367

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that may not necessarily have taken on a high degree of significance in the minds of Mr

or Mrs Pinxteren. It is possible that Dr Hiwase minimised the error to such an extent

that to a large degree its significance was lost in the minds of Mr and Mrs Pinxteren.

Evidence of such minimisation is afforded by his use of the word ‘clerical’ to describe

the nature of the error, a descriptor that to my mind was nevertheless wholly

inappropriate. This might explain why Mr Pinxteren has no recollection of any

discussion about an error or of any apology for an error. I am also mindful of the

possibility that the chemotherapy error has had such public ventilation since the death

of his wife that its significance in Mr Pinxteren’s mind may have been substantially

enhanced since the events of March 2015. It may have taken on a completely different

level of significance than what it had at that time. Furthermore, in assessing the

demeanour of Dr Hiwase I detected nothing to suggest an attitude of evasiveness or

lack of candour. It will be remembered that he candidly acknowledged a number of

shortcomings in relation to his performance including his failure to identify the error in

the protocol and his failure to describe or even mention the error in his letter to

Dr Vawser.

13.20. I am mindful of the support that the statements of Mr William Pinxteren’s son and

daughter lend to the notion that their mother was not told of the chemotherapy error,

but I am also obliged to have regard to Mr Leon Pinxteren’s assertion within his

statement that his parents had a limited ability to understand what was going on and

were sometimes confused about what was being discussed. If, as is possible, Dr Hiwase

downplayed the error and its significance and had found it necessary to draw a diagram

to illustrate the point that the error did not matter much and to demonstrate why it was

that Mrs Pinxteren had not recovered the from the first consolidation cycle, it would

not be surprising that both Mr and Mrs Pinxteren regarded any kind of error, especially

if described as clerical, as having very limited overall significance and perhaps not have

been worth mentioning.

13.21. For all of the above reasons I am not satisfied on the balance of probabilities that

Dr Hiwase failed to tell Mrs Pinxteren of the error or that he failed to apologise. I am

not satisfied on the balance of probabilities that Dr Hiwase fabricated any notations in

the progress notes. I am not satisfied on the balance of probabilities that Dr Hiwase

deliberately refrained from mentioning the chemotherapy error in his letter to

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Dr Vawser. In short, I do not make any findings one way or the other about those

issues.

13.22. My view that I do not need to make any finding about this issue is illustrated by reason

of the fact that knowledge on Mrs Pinxteren’s part that there had been an error could

not in any way have affected her further treatment. It was not as if Mrs Pinxteren could

have been given a second cycle of consolidation chemotherapy, or a so-called catch-up

round of consolidation chemotherapy. This is so because she simply failed to recover

from the first cycle. That was then complicated by the fact that she relapsed.

Accordingly, the issue as to whether or not Mrs Pinxteren was told about the error on

11 March 2015 or at any other time has limited materiality.

13.23. However, there is one matter in connection with the manner in which the Pinxteren’s

were dealt with that should not go unmentioned. I would regard the word ‘clerical’, if

in truth it was used by Dr Hiwase to describe the error, as a highly inappropriate

description of the nature of the error. While the origin of the error might have justified

such a characterisation, that was so only while the error sat and remained within the

pages of the protocol. In reality it would have clinical consequences that were anything

but clerical. The fact of the matter was that patients were treated incorrectly and not in

accordance with an agreed standard. They were treated in accordance with a standard

that was not known to medicine. Regardless of its impact on an individual patient’s

wellbeing, it was a serious clinical error in treatment.

14. Mr McRae is advised of the error

14.1. On 6 March 2015 Dr Anya Hotinski, a leukaemia fellow at that time, informed

Mr McRae in the presence of his family of two important matters, firstly that he had

probably relapsed and secondly that he had been subjected to the frequency error.

Associate Professor Lewis told the Court that he had asked Dr Hotinski to attend to that

task. As it so happened Associate Professor Lewis was that day enroute to Sydney. I

agree with Associate Professor Lewis’ acknowledgement in his evidence that it was a

significant error to have asked a relatively junior medical practitioner who had not in

any way been responsible for Mr McRae’s underdosing not only to advise a patient of

that underdosing, but also to convey the devastating news that the patient had relapsed.

Associate Professor Lewis acknowledged, appropriately, that he feels ashamed and

embarrassed at having done so. Indeed, it smacks of a complete abdication of

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responsibility and of an avoidance of a difficult issue due to a lack of fortitude. Clearly,

Mr McRae and his family should have been told about this earlier and it is no answer

for Associate Professor Lewis to say that he had simply frozen.

14.2. Mr McRae and his family members were unsurprisingly upset by the receipt of this two

pronged piece of information, and it is also not surprising that Dr Hotinski herself

became distressed at having to perform a task which was not hers to perform.

14.3. The circumstances in which this unfolded are as follows. Dr Hotinski endeavoured to

locate Associate Professor Lewis as during her meeting with the McRae family she was

unable to answer the many questions that they had. As indicated above, Associate

Professor Lewis was unavailable on that day. Dr Hotinski asked Associate Professor

Yong to attend the meeting. Associate Professor Yong who did attend the meeting told

the Court that Dr Hotinski was very distressed and very upset, her stated concern being

that Mr McRae and his family had many questions, were very distressed and that

Dr Hotinski could not realistically deal with the situation166. Associate Professor Yong

told the Court that she had no knowledge of Mr McRae’s circumstances or the course

of his disease and only found out about those matters when Dr Hotinski asked her for

assistance. Associate Professor Yong agreed with the proposition that it was highly

inappropriate for a relatively junior doctor to be tasked with telling a patient that he was

relapsing and, as well, and at the same time, to have to tell the patient about an error

affecting his treatment167.

14.4. When Associate Professor Yong attended she told Mr McRae and his family that the

underdosing error may not have made any difference. There was also a discussion as

to the nature of further treatment that might be provided to him in the coming weeks.

Associate Professor Yong also informed Mr McRae and his family that the discovery

of the frequency error had been due to Associate Professor Yong’s own initiative.

14.5. The day after this meeting Professor Bik To sent an email to Associate Professor Lewis

advising him that Mr McRae had been very upset when told about the underdosing.

There is also mention in the email of Dr Hotinski becoming distressed herself and of

Associate Professor Yong’s having to see the patient as a result. This email forecast a

number of matters that Associate Professor Lewis would have to consider and explain

166 Transcript, page 1794 167 Transcript, page 1795

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when he came to see Mr McRae himself, a matter which Associate Professor Lewis as

the head of the haematology unit and the person principally responsible for the error,

should have anticipated. Included among the issues that Professor To said that

Associate Professor Lewis would have to deal with were the provision of an explanation

of the whole event, whether Associate Professor Lewis could have arranged another

consultant to see Mr McRae given that Associate Professor Lewis had been unable to

see him, the nature of the treatment plan from that point forward and whether

azacitidine treatment would be offered or whether if remission was achieved again he

would be offered a transplant.

14.6. Accordingly, Associate Professor Lewis personally saw Mr McRae on 13 March 2015.

At this meeting Mr McRae’s relapse was confirmed and the treatment error was

discussed. The nature and origin of the treatment error was openly discussed.

14.7. One matter that was put to Associate Professor Lewis in cross-examination was whether

he had settled on what was referred to as a ‘watch and wait’ policy for Mr McRae,

meaning that one would wait and see how Mr McRae responded to treatment, and that

he had been trying to determine the best time to raise the issue of underdosing with

Mr McRae and his family. Associate Professor Lewis said that was possible. It will be

noted that the RAH had known about the error on Monday 19 January. On any level,

the delay in informing Mr McRae was unacceptable. So was the manner in which Mr

McRae and his family were informed.

14.8. At the 13 March meeting Mr McRae was taken through his treatment possibilities.

Azacitidine therapy was selected. There is no suggestion that this treatment was

inappropriate. There was no possibility of Mr McRae having a catch-up round of

chemotherapy as he had relapsed.

14.9. There are three further matters I should mention. Firstly, I observe that in Dr Hotinski’s

note of the meeting with the McRae family she recorded that in respect of the

underdosing error she had said to the family ‘I am unsure if this contributed to the

relapse but of course this is a possibility’168. Professor Gibson, the independent expert

who was called to testify as to the possible impact of the error on the individual patients,

168 Exhibit 12C, Volume 4

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stated in evidence that he believed that to have been a reasonably honest statement169

and not an unreasonable way of looking at the matter170.

14.10. Secondly, by letter dated 27 February 2015 Dr Hotinski had informed Mr McRae’s

general practitioner, Dr Chia, that she was concerned that Mr McRae had relapsed.

Within that letter there is no reference to the dosing frequency error, but I do not suggest

that there is anything sinister adhering to its absence in this instance.

14.11. Thirdly, I did not trouble Dr Hotinski to give evidence in the inquest as I do not believe

she had anything to answer for.

15. Mrs Bairnsfather is advised of the error

15.1. This subject matter was encapsulated in a letter that was written to Mrs Bairnsfather’s

general practitioner, Dr Andrew Wilson, by Dr Noemi Horvath, a consultant

haematologist at the RAH. The letter is apparently dated 4 March 2015 following a

clinic of that day. The letter indicates that Dr Horvath had informed Mrs Bairnsfather

that because of an error in the RAH AML protocol her consolidation treatment included

a lower dose of cytarabine than she should have received. Dr Horvath goes on to say

in the letter that she did not know whether this was an important factor in the outcome.

She said:

'It is possible that if she had received the full dose, she would have maintained her

remission and recovered her blood count sooner. It is also possible that she would have

developed even more severe and more prolonged cytopenia and become more unwell.

Carol took this information on board very calmly.'

15.2. There is no reason to doubt that this was the advice that was tendered to

Mrs Bairnsfather by her consultant haematologist. The content of that letter was shown

to Professor Gibson in the course of his evidence for his comment. I did not understand

Professor Gibson to be critical of the content of that letter.

15.3. In the event there does not appear to be any basis for concluding that delay in informing

Mrs Bairnsfather of the error impacted on her outcome. Mrs Bairnsfather only

underwent the one cycle of consolidation chemotherapy. Having regard to her response

which involved a suspicion that she had relapsed and had displayed myelodysplastic

syndrome following chemotherapy, notwithstanding remission, a second cycle of

169 Transcript, page 205 170 Transcript, page 206

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consolidation chemotherapy was not indicated in any event. Rather, Mrs Bairnsfather

was administered a course of azacitidine.

16. Mr Higham is advised of the error

16.1. I have referred to Dr Beligaswatte’s attendance upon Mr Higham on 5 February 2015

in which Dr Beligaswatte informed Mr Higham of the error. A further meeting was

conducted on 16 February 2015. This meeting was attended by Dr Beligaswatte,

Associate Professor Kuss, other clinicians, Mr Higham, Mr Higham’s wife,

Mr Higham’s son and Mr Higham’s daughter. This meeting was the subject of an audio

recording by Mr Higham’s son. It is not necessary for me to deal with anything that

specifically arises from that meeting, although there does not appear to have been any

express mention of the fact that the error involved the frequency at which cytarabine

had been given.

16.2. On the same day of this meeting Dr Beligaswatte wrote a letter to Dr Christine Brown171

who was Mr Higham’s general practitioner. The letter makes reference to the family

meeting of that day, the main purpose of the meeting being a discussion of the

implications of an inadvertent underdosing of cytarabine which occurred during

Mr Higham’s consolidation cycle. The letter makes reference to Dr Beligaswatte’s

discussion with Mr Higham on 5 February 2015. In this letter Dr Beligaswatte asserted

as follows:

'The optimal dose of cytarabine in consolidation has been extensively debated in the

literature. Despite multiple clinical trials addressing this issue over the last several decades

there is no uniformly accepted standard of care. As such we pointed out to Bronte that

there is no evidence that his leukaemia control would have been compromised.'

There is then reference to a recommendation that Mr Higham undergo an additional

cycle of consolidation chemotherapy, the so-called catch-up round. The additional

cycle was described in terms that tended to suggest that this involved a simple matter

of administering a dosage of cytarabine that would bring the total dose up to the amount

of cytarabine that was intended in the first place. Insofar as that suggestion was

supported by scientific grounds, this is a matter that is by no means certain.

16.3. Another relevant aspect of the letter is that although it refers to inadvertent underdosing,

it does not refer to the error having stemmed from incorrect frequency of dosing. It

171 Exhibit C11a, pages 9-10

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does not refer to the fact that Mr Higham’s intended frequency of dosing had been twice

daily and not once daily as had been administered. A person not familiar with the

requirements of consolidation chemotherapy for AML in terms of frequency of dosage

in my view would be likely to interpret this letter as asserting that the error was in

respect of dosage magnitude rather than frequency. As far as the use of the expressions

‘optimal dose’ is concerned, as will be seen the literature does not support the

contention that there is any serious debate relating to frequency of administration. True

it was that there had been some academic opinion expressed as to optimal dose,

particularly as it related to efficacy versus toxicity, a matter to which I have already

referred. However, the literature appears to be virtually unanimous that cytarabine is a

schedule-dependent drug that should be administered twice a day when administered

on alternate days172. To my mind the letter to Dr Brown was misleading in that it

suggested that the underdosing was of limited significance due to uncertainty about the

appropriate magnitude of the dosage, a matter that would be sought to be rectified by a

further cycle of chemotherapy.

16.4. There is in my view a further questionable implication in the letter and that is that none

of this would have made any significant difference to his leukaemia control. The

expression that there was no evidence that Mr Higham’s leukaemia control would have

been compromised has a reassuring air that at that early point in time was not warranted.

Whether or not Mr Higham’s treatment had been compromised could not have been

known at that time. I deal with issue of causation later in these findings.

16.5. As for the assertion that there is no uniformly accepted standard of care, this is

misleading. While there are a number of differing standards of care in respect of

consolidation chemotherapy, it is wholly wrong to suggest, as this letter implies, that

the standards of care are so diverse and uncertain that cytarabine can legitimately be

administered outside any existing standard and that non-conformity with a standard

would not make any material difference to the patient’s outcome. In short, there were

uniformly accepted standards of care. Mr Higham’s treatment did not conform to any

of them because, as was pointed out many times during the course of this inquest, there

was no consolidation regimen, or standard of care, that involved once daily

administration of cytarabine on alternate days.

172 For example Exhibit c19B, ‘Modelling the Pharmacodynamics of Highly Schedule –Dependent Agents: Exemplified by

Cytarabine- Based Regimens in Acute Myeloid Leukemia’ – Braess and others, Cancer Therapy: Clinical , Clin Cancer Res 2005;11 (20) October 15, 2005

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16.6. Professor Gibson whose evidence on this point I accept told the Court that the assertion

that the optimal dose of cytarabine had been extensively debated in the literature could

only be true if Dr Beligaswatte was referring to the dose of cytarabine and not the

frequency with which it was given173.

16.7. In his evidence Dr Beligaswatte denied that he was trying to conceal the real nature of

the frequency error. I will deal with this issue when considering in the next section the

content of a similar letter that he would write to Mr Knox’s general practitioner and the

content of the chain of emails that he exchanged with Dr Coghlan to which I have

already referred174.

16.8. As of 16 February 2015 Mr Higham was still in remission. This enabled him to undergo

a third catch-up cycle of consolidation chemotherapy. As a result of the 16 February

2015 meeting Mr Higham was prescribed that third cycle. The cycle consisted of 2gm

of cytarabine being administered to Mr Higham twice a day on three alternate days.

This commenced on 2 March 2015. Professor Gibson opined that this treatment was

‘not unreasonable’.

16.9. By 18 April 2016 it was clear that Mr Higham had relapsed. On 7 August 2016 he died.

17. Mr Knox is advised of the error

17.1. Mr Knox was advised of the error at a meeting on 17 February 2015 attended by

Dr Beligaswatte, Associate Professor Kuss, the clinical nurse consultant and a risk

manager.

17.2. A note compiled by Dr Beligaswatte and placed on Mr Knox’s progress notes states

that the sequence of events was outlined to Mr Knox ‘leading to a total reduction of

6g/m2 ara-C across 2 consolidation cycles’175. The note does not contain any reference

to the error involving frequency of dosing. The note goes on to state: ‘No evidence that

leukaemia control compromised, as no universally accepted evidence based standard

for consolidation’. This was evidently the advice tendered to Mr Knox.

173 Transcript, page 146 174 Supra para 7.76 herein 175 Exhibit C16c, pages 840-841

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17.3. Like Mr Higham, Mr Knox was prescribed a third round of consolidation

chemotherapy, a catch-up round. This consisted of 2gm of cytarabine administered

twice per day on three alternate days. The therapy commenced on 25 February 2015.

17.4. Following the meeting Dr Beligaswatte wrote a letter to Mr Knox’s general

practitioner, a Dr S Kim Low176. This letter was in similar terms to that written to

Mr Higham’s general practitioner. The letter is dated 17 February 2015 and refers to

the meeting of that day. The letter also refers to a reduction in the total cytarabine dose

during consolidation in respect of Mr Knox. It then states:

'There are no universally accepted evidence-based standards of care for consolidation

chemotherapy in AML. As such there is no evidence that Andrew’s leukaemia control has

necessarily been compromised.'

The letter then goes on to describe the proposed additional cycle of cytarabine twice a

day on alternate days in order to ‘catch-up to the total planned cytarabine dose in

consolidation of 12g/m2.’

17.5. I have referred elsewhere to an exchange of emails about the error between

Dr Beligaswatte and Dr Coghlan. The exchange was prompted by an email of 13

February 2015 sent by Associate Professor Kuss to Dr Beligaswatte and Dr Coghlan,

and copied to others including Professor Bardy and Associate Professor Lewis,

informing that the Higham family had made a complaint and seeking from

Dr Beligaswatte information regarding the various AML regimens as soon as possible.

Dr Beligaswatte’s reply to Associate Professor Kuss of the same day, copied also to

Professor Bardy and Associate Professor Lewis, included a discourse on the properties

of cytarabine and the ‘ongoing debate’. Dr Beligaswatte suggested in the email that

there was no consensus regarding its dose. He referred to dosages above 1.5g/m2 as

being not likely to represent an optimal benefit/risk ratio. He also said that there was

no evidence to suggest that giving a smaller dose of cytarabine per cycle would

adversely affect Mr Higham’s leukaemia control given that he had offered him a third

cycle that would bring the total dose up to the intended level. Dr Beligaswatte’s email

referred to a number of publications that encapsulated an issue concerning dose

magnitude but not frequency. It was this email that prompted Dr Coghlan’s reply to

the effect that Dr Beligaswatte had missed the point, the real point being that the

pharmacokinetics of the drug cytarabine and its required frequency of twice a day

176 Exhibit C16c, page 907

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administration were the relevant factors when considering the impact of the error.

There was then a further email from Dr Beligaswatte, which stated ‘…I wonder whether

twice daily dosing really makes a difference for very slowly cycling cells’.

17.6. It will be remembered that the letter to Mr Higham’s GP was sent on 5 February, some

eight days or so before the exchange of emails between Dr Beligaswatte and

Dr Coghlan.

17.7. In my view the letters to the respective general practitioners of both Mr Higham and

Mr Knox were misleading. A frank and candid item of correspondence between

specialist and general practitioner could not have failed to describe in precise terms the

true nature of the error and its possible consequences, either theoretical or actual. To

my mind the terms of the letter to Mr Knox’s GP were couched in such a way as to lead

that person to view the error as being of little or no consequence.

17.8. The statement in Mr Knox’s GP letter that there are no universally accepted evidence-

based standards of care for consolidation chemotherapy in AML was simply not true.

The ALLG M15 study, that is to say the regimen that was intended to be and should

have been administered to Mr Knox and all of the other affected patients, was clearly a

widely accepted evidence-based standard of care. This aspect of the letter was

misleading. Professor Gibson was asked to comment on the suggestion that there is no

universally accepted evidence based standard for consolidation. He suggested that the

implication that administering cytarabine once daily was acceptable is incorrect. He

stated that it is universally agreed that in respect of the regimen under discussion it has

to be given twice daily177. I accept that evidence.

17.9. For the same reasons identified in respect of the content of Dr Beligaswatte’s letter

regarding Mr Higham, the assertion contained in the letter regarding Mr Knox that there

was no evidence that Mr Knox’s leukaemia control has necessarily been compromised

was also misleading.

17.10. Dr Beligaswatte denied that his intent in writing these letters was to conceal the true

nature of the error. I am bound to say that the letters were so outwardly lacking in

candour that a conclusion that Dr Beligaswatte was being deliberately deceptive is

open. However, I hesitate in making that finding because of the distinct possibility that

177 Transcript, page 638

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in February of 2015, as evidenced by his email correspondence with Dr Coghlan,

Dr Beligaswatte genuinely held an unconventional view that dosage frequency was of

little or no relevance to the efficacy of cytarabine administration except to the extent

that the error in administering it only once a day had meant that the patients did not

receive their full numerical measure of that drug, a circumstance that in his mind could

readily be rectified by a third cycle. Of course, there is a possibility that within that

correspondence with Dr Coghlan, Dr Beligaswatte was being disingenuous about what

he truly believed. On the other hand, having regard to his already identified prominent

role in the whole affair, it is possible that out of wishful thinking he held the views that

he appears to have held about the limited relevance of dosage frequency. In all of the

circumstances I cannot discount the possibility that the terms of Dr Beligaswatte’s

letters were influenced by genuinely held views. In the event, I make no finding as to

whether or not Dr Beligaswatte set out to deliberately mislead the general practitioners

of Mr Higham and Mr Knox. In any case I do not believe that the content of either

letter compromised their respective treatments from the dates of the letters onwards.

18. The evidence of Professor Peter Bardy

18.1. I have already referred to Professor Peter Bardy. At the time with which this inquest is

concerned Professor Bardy was the Clinical Director of the Cancer Service at the

Central Adelaide Local Health Network (CAHLN). In that role he reported to the Chief

Executive Officer of CAHLN. He was the direct line of report for all oncologists,

radiation oncologists and haematologists in the Cancer Service through the respective

Clinical Heads of Oncology, Radiation Oncology and Haematology. That was

nominally a .4 role with the balance of his work taken up with clinical duties at the

RAH and the QEH. In that role he reported to the Clinical Director of Haematology in

each of the sites at which he worked.

18.2. Professor Bardy provided a statement and annexures to the inquest178. He also gave oral

evidence.

18.3. Professor Bardy told the Court that prior to July 2014 he had not been aware of any

discussion relating to any proposed changes in the relevant protocol. He received the

email from Mrs To of 16 July 2014 that had been sent to a large group of recipients.

He also received Associate Professor Lewis’ email of 19 July 2014 explaining the

178 Exhibits C53 and C53a

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changes. He did not check the AML protocol after receiving those emails. Between

July 2014 and January 2015 he was not generally involved with inpatient management

at the RAH and was not responsible for any new patients with AML. He therefore did

not have any reason to refer to the RAH AML protocol during that period.

18.4. Professor Bardy also told the Court that he was unaware of any protocol error or of

underdosing administered pursuant to it until he was told about it by Mr Doecke, the

Director of Pharmacy at the RAH, on 12 February. Professor Bardy informed Mr

Doecke that an SLS incident report should be filed in respect of any incorrect protocol

in use at the RAH. One such report was lodged by Ms Scarborough later that day.

Others were not filed until 17 February 2015.

18.5. Professor Bardy also told the Court that he had not been informed by Associate

Professor Yong on or about 20 January 2015 about the error having been identified at

the RAH. Although he had been a recipient of the 20 January 2015 email sent by Mrs

To, he told the Court that in the absence of knowing that there had been an incident or

an error, the email would not have seemed remarkable to him. I can see why he would

say that. He was alluding to the fact that the email did not specify anything about an

error.

18.6. Professor Bardy told the Court that for some time he had known Associate Professor

Lewis in a professional capacity. He said that when he heard about the error he was

most concerned about the fact that senior clinicians had not shared the information with

him as Clinical Director of the Cancer Directorate. He did not know that

Dr Beligaswatte had apparently been informed of the error on or about 30 January 2015

and had provided a further consolidation round of chemotherapy to a patient

commencing on 2 February 2015.

18.7. Other relevant matters dealt with by Professor Bardy included the fact that he himself

had never heard of any regimen whereby single daily dosages of consolidation

chemotherapy would be delivered on alternate days179 and stated that in his view any

clinician with experience in the management of AML would have queried such a

regimen. He held that view even though he was not himself an expert in AML180.

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18.8. Professor Bardy also gave evidence that he would regard it as unfortunate if not

unsatisfactory that a relatively inexperienced registrar, not the consultant, would deliver

two-pronged information to a patient that not only was the patient no longer in

remission, but that his treatment had been the subject of an error, as had been the case

with Mr McRae181.

18.9. I have already referred to Professor Bardy in respect of electronic scripts. Professor

Bardy told the Court that as at the time that he gave his evidence in the inquest,

electronic prescriptions had not yet been introduced at the RAH. He told the Court that

electronic prescriptions would mitigate against possible error but only on the proviso

that they were developed with contemporary appropriate governance processes around

it. He agreed with the proposition that such governance processes are essential to

ensure that the data entry in the electronic system is not infected by error182. Professor

Bardy emphasised in his evidence that electronic prescriptions must go through a

process of tight governance183.

18.10. Professor Bardy also gave some evidence about the SLS. He told the Court that training

in the SLS for medical practitioners was very poor184. I would add for my own part that

it does not require any training to know that when an error has been committed in any

professional walk of life, frank and immediate disclosure is called for.

19. The evidence of David Swan

19.1. Mr Swan was the Chief Executive of SA Health from 2011 to 2016.

19.2. Mr Swan knew nothing of the chemotherapy error or underdosing pursuant to that error

until 16 February 2015, which of course was nearly a month since the error had been

discovered at the RAH. It was, as I have found, five days after the underdosing at the

FMC had been revealed and discussed at the ward meeting attended by Professor Kuss.

That the Chief Executive of the overarching entity in respect of the administration of

the delivery of health in the public sector should not have been informed of the matter

before then is extraordinary. Naturally Mr Swan, who gave evidence, was questioned

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about his reaction to that and with some measure of understatement stated that he had

been ‘very disappointed’185.

19.3. Specifically Mr Swan suggested that Mrs To’s email of 20 January 2015 in which she

had outlined Associate Professor Yong’s advice that chemotherapy should be

administered twice daily was not a satisfactory method of communicating the existence

of an error. He made the obvious point that there is an ‘issue’ about a project officer

sending out communiques of that nature regarding a complex protocol186. He also

described the email as ‘completely deficient’187. Mr Swan was also critical of Associate

Professor Lewis and suggested that as soon as Associate Professor Lewis had returned

to work in January 2015 there should have been an investigation including an

immediate conversation with Associate Professor Yong to ascertain what she had done

as far as reporting the incident was concerned188. One matter that struck me as

extraordinary was Mr Swan’s assumption that an SLS report would have had the effect

of notifying the FMC of the difficulty that had been identified at the RAH. It will be

remembered that no SLS was filed in relation to any of these affected patients until at

the very earliest 12 February 2015. Granted that an SLS should have been filed no later

than Tuesday 20 January 2015, but I was not persuaded that any SLS then filed within

the RAH environment would have alerted any person at the FMC to the fact that there

had been an error detected at the RAH, let alone that the same error was possibly in

existence at the FMC. Despite Mr Swan’s evidence I was not persuaded that any SLS

created at the RAH would have been distributed to clinical counterparts at the FMC, let

alone have enabled those counterparts to consider whether there was in existence, and

to have identified, any error that had crept into their processes as well. I was also

surprised at Mr Swan’s revelation that he had no realisation in this context that the FMC

Haematology Department effectively acted autonomously189.

19.4. Mr Swan gave evidence about briefings that were created within SA Health both in

respect of information that was imparted to him and also information that was imparted

to the Minister. Mr Swan referred to a number of different documents in this regard

and suggested in effect that initially, and for some duration, he had been misled into

believing that adequate and timely open disclosure had been made to all of the affected

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patients when in reality there had been a distinct lack of that. Moreover, there had been

the fiasco concerning the treatment of Mr Knox. Mr Swan was initially not made aware

of the fact that Mr Knox had been treated pursuant to the incorrect protocol

notwithstanding that the error had been identified at the RAH. Mr Swan was asked by

me to spell out in terms what it was that he had been told in briefings and which was

incorrect, and he said:

'I'd been told that once they identified the error in January, I think it's around 20 January,

they'd promptly addressed the protocol. They were advising patients and informing open

disclosure, they were moving on with improving their protocols but the events, both of the

sense of patients still being treated post that date was a major issue for concern about a

breakdown between addressing the issue and what we were being told. The delay in

responding to addressing the protocol, we understood that once the protocol was changed

in January that all patients would have been promptly responded to with treatment plans

and ensuring that they were being informed and involved with that care but that was not

the case.' 190

Mr Swan, correctly in my view, said in his evidence that as between a number of

individuals there had been a responsibility to bring to his attention the fact that a person

had been erroneously treated notwithstanding the discovery of the error191. Asked as to

what he had meant when he had told his counsel Mr Golding that he had not been

informed of all the facts, he outlined that there had been a delay in responding to

treatment of individuals and that the response to the treatment error was not clear at all.

He said that what he did not know was that there had been a delay in developing a

response to the care of the patients. He asserted that the response should have been

extremely prompt. That of course goes without saying. In the event, he had gained a

perception from the briefing that people had been responding quickly to the protocol

error and were remediating the situation as much as possible in terms of both treatment

and open disclosure to the affected patients192. He said he was misinformed about those

matters.

19.5. In cross-examination by Ms Johns on behalf of Mr Knox, Ms Crannage and the family

members of affected patients, Mr Swan agreed that it would not have been acceptable

to wait until March 2015 to have informed a patient that there had been an error while

simultaneously informing the patient that the person had also relapsed193. He also

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agreed with Ms Johns’ proposition that simply putting the whole thing down to an error

in the dose would not be acceptable without mentioning that the error in reality was

connected with frequency of dosing194.

19.6. Asked as to identify the clinical governance errors that had been responsible for the

chemotherapy underdosing, Mr Swan identified the errors that had crept into protocol

development wherein it had been left to one person to deal with a project officer. He

suggested, rightly in my view, that this process created a risk of error because of its lack

of checks and balances and said ‘you would think that there should be a dual signing

off with probably even a third-party endorsing a recommendation on a protocol’195.

19.7. Mr Swan’s evidence also led to the revelation that the briefing to the Minister had

contained the tired suggestion that ‘there have been a number of recent review articles

highlighting the current controversy surrounding dose and timing of cytarabine’ which

was capable of implying that the state of the science regarding consolidation

chemotherapy for AML was so uncertain that any error would have had limited impact,

or may not have been an error at all.

19.8. The evidence of Mr Swan made it abundantly plain in my view, if it was not plain

already, that for a long period, and for an unacceptable one, the chemotherapy protocol

error and its consequences or possible consequences had largely been swept under the

rug.

20. The expert witnesses - causation

20.1. In this section I shall deal with the issue as to whether or not the administration of

consolidation chemotherapy that was not in accordance with the intended protocol had

any impact on the survivability of any of the deceased persons. I will also deal with the

same issue in relation to Mr Knox and whether any conclusion that I might draw from

Mr Knox’s circumstances has any bearing on the conclusions that I might draw in

relation to the survivability of any of the deceased persons.

20.2. Four independent expert witnesses were called to give oral evidence in this inquest.

They also provided written reports. Each of the four expert witnesses were independent

in the sense that none of them had any connection with the deceased persons or their

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courses of treatment, nor with that of Mr Knox or any other affected patient. Two of

the expert witnesses, namely Professor John Gibson, a haematologist, and

Professor Allan Boddy, a pharmacokineticist, were engaged by counsel assisting the

Coroner to provide an expert analysis of the treatment of the four deceased persons and

of Mr Knox. Associate Professor Andrew Wei was engaged by solicitors acting for a

number of medical practitioners who were called to give oral evidence at the inquest.

Dr Stephen Vaughan was originally engaged to provide an expert opinion by AHPRA

for the purposes of that agency’s investigation. Dr Vaughan’s original written expert

report was furnished to the State Coroner along with other material that was gathered

by AHPRA in the course of its investigation. This material was provided as a result of

process issued by the Coroners Court to AHPRA. In the event the Court decided to call

Dr Vaughan to augment his written material by oral evidence. I indicate that I have had

regard to all of the independent expert evidence.

20.3. Other expert opinion was given by a number of the medical practitioners who were

involved in the treatment of the deceased persons or Mr Knox. I have had regard to

their expert opinions as well.

20.4. Professor John Gibson is Senior Staff Specialist and Head of the Department of the

Institute of Haematology at the Royal Prince Alfred Hospital in New South Wales. He

is a Professor of Haematology in the Faculty of Medicine, University of Sydney. He is

the Head of the Blood and Bone Marrow Transplantation Service and the Sydney South

West Area Health Service. He is also the Co-Director of Cell and Molecular Therapies

at the Royal Prince Alfred Hospital. Professor Gibson is a Doctor of Philosophy and a

clinical haematologist. He is a Fellow of the Royal College of Pathologists of

Australasia and a Fellow of the Royal Australasian College of Physicians. Professor

Gibson provided a number of reports in relation to the treatment of the four deceased

persons and of Mr Knox. In particular, he provided opinions in relation to the issue as

to whether or not the consolidation therapy that was administered not in accordance

with the correct protocol had any impact on the duration of complete remission or the

duration of survival in relation to the concerned patients. I recognised and accepted

Professor Gibson as an expert witness in the field of haematology and in particular as

an expert in the treatment of AML.

20.5. At the time of the inquest hearing Professor Allan Boddy was a Doctor of Philosophy

and Professor of Pharmacy (Cancer Therapeutics and Personalised Medicine) in the

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Faculty of Pharmacy at the University of Sydney. His Doctorate of Philosophy is in

the subject of pharmacokinetics (University of Manchester). Professor Boddy provided

a written report in relation to the therapeutic principles for cancer treatment and in

particular the pharmacology of cytarabine which is the drug utilised in AML

chemotherapy. He gave evidence about the pharmacological principles relative to

cytarabine chemotherapy regimens. He also gave evidence in connection with the

pharmacokinetics associated with the administration of cytarabine. Professor Boddy

provided a report and gave oral evidence in the inquest. In his oral evidence he dealt

with the possible impact that the erroneous administration of consolidation therapy may

have had in respect of each of the five individuals who are the subject of this inquiry. I

regarded Professor Boddy as an expert in pharmacology and pharmacokinetics. In

particular, I regarded him as an expert in respect of the pharmacological and

pharmacokinetic principles as they apply to the drug cytarabine.

20.6. Associate Professor Andrew Wei is a clinical haematologist at the Alfred Hospital in

Victoria. He is Head of Human Molecular Pathology at the same hospital. He is also

an Adjunct Associate Professor at the Monash University in Victoria. He is a Fellow

of the Royal Australasian College of Physicians as well as a Fellow of the Royal

College of Pathologists of Australasia. He has had other memberships in organisations

associated with haematology. It is evident from Associate Professor Wei’s curriculum

vitae that he has been involved in research, particularly in relation to AML, and has

published in respect of that same topic. I was furnished with Associate Professor Wei’s

written report. In his oral evidence Associate Professor Wei explained that as a full-

time clinical haematologist at the Alfred Hospital he is in charge of acute leukaemia

practices within that hospital which includes the determination of treatments that should

be utilised. He manages the hospital’s clinical trial program and states that he and his

associates operate potentially the largest clinical AML program in Australia. Associate

Professor Wei also explained that a large part of his practice is directed towards the

treatment of AML patients who are older than the age of 60-65 years. Associate

Professor Wei is a Member of the Australasian Leukaemia and Lymphoma Group

(ALLG). I accepted Associate Professor Wei as an expert in the field of haematology.

He voiced expert opinions in relation to the question as to whether or not the

administration of the erroneous consolidation chemotherapy had any impact on the

remission duration or duration of longevity of the five individuals the subject of this

inquiry.

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20.7. Dr Stephen Vaughan is a consultant physician in Haematology/Medical Oncology both

in private practice and in sessional public practice. He has acted as an expert witness

in respect of cancer and blood diseases. He is a clinical associate in haematology at the

Royal Melbourne Hospital. He has admitting rights in a number of hospitals in

Australia. He is a Fellow of the Royal Australian College of Physicians and is a Fellow

of the Royal College of Pathologists Australia (Haematology). As indicated earlier he

originally provided a written expert opinion to AHPRA for the purposes of that

organisation’s investigation. He gave evidence in this inquest in relation to the

treatment of AML including consolidation chemotherapy. He voiced expert opinion as

to whether or not the administration of erroneous consolidation chemotherapy had any

impact on the remission duration or duration of survival in relation to each of the five

individuals the subject of this inquiry.

20.8. It will be seen that Professor Gibson, Associate Professor Wei and Dr Vaughan gave

evidence essentially in relation to the same broad issues from a clinical perspective. On

the other hand Professor Boddy, who is not a clinician as such, gave evidence

concerning the therapeutic properties of cytarabine administration in the treatment of

AML. He essentially gave expert evidence about the mechanics of how cytarabine

eliminates acute leukaemia within the bone marrow and blood of a person. It was

necessary to adduce this evidence in order to provide the Court firstly with an expert

overview of how the drug cytarabine actually works and secondly with an account of

the principles that apply when the appropriate dosage and frequency of administration

of that drug come to be considered. It is as well to commence an analysis of the expert

evidence with the evidence of Professor Boddy.

21. The evidence of Professor Boddy

21.1. Professor Boddy explained the properties of the drug cytarabine in terms that were very

easily understood. This was so both in his report196 and in his oral evidence. He

explained the effect of the drug cytarabine on the creation and proliferation of

leukaemic cells. He told the Court that cytotoxic chemotherapy, in this case cytarabine

therapy, works by targeting cells that are growing and dividing. This results in a failure

of the replication system within those cells and causes the cells to die. Professor Boddy

explained, however, that cells that are not progressing through the S-phase or synthesis

196 Exhibit C19

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phase of a cell cycle are less sensitive to the actions of cytarabine. Cells are only

susceptible to the actions of anti-metabolites such as cytarabine when they are in the S-

phase of the cell cycle which can occur over a period of 12 to 24 hours. In order to

capture all of the cells in a leukaemic population it is necessary to maintain the drug

within the body and to repeatedly expose those cells to the drug at different intervals,

thereby maximising the number of cells that are exposed to the cytotoxic action of the

drug. In order to maintain effective concentrations of the drug for an appropriate period

of time it is necessary either to use a continuous infusion of cytarabine or, alternatively,

repeated doses. Professor Boddy pointed out that induction therapy consists of a

continuous infusion whereas the intended consolidation protocol called for shorter

durations of infusion over three hours, but repeated on a 12-hourly basis every second

day, in other words, twice daily on days 1, 3 and 5.

21.2. Professor Boddy also explained that a chemotherapy protocol is designed to provide

the maximum anti-leukaemic effect but takes into account the potential toxicities from

the treatment. The uncontested evidence in the inquest was that cytarabine has an

adverse effect on normal blood cells such as red cells, white cells and platelets and that

the destruction of these cells can cause adverse side effects such as infection and

bleeding. It will be seen that these consequences were experienced in the cases under

discussion. Essentially, cytarabine chemotherapy involves a balance between

maximum exposure of the leukaemic cells to the drug on the one hand and the

minimisation of the toxic effects of the drug on the other.

21.3. Throughout Professor Boddy’s oral evidence he emphasised the importance of the

maintenance of concentration of the drug over time by way of repeated administration.

Its importance is generated by the fact that not all cells within a population of leukaemic

cells will be at the same phase of the cell cycle. Professor Boddy described cytarabine

as a ‘schedule-dependent’ drug, that is to say a drug which is only active at one phase

of the cell cycle197. At any given time different cells will be at various phases of the

cell cycle such that ‘catching as many of them as possible at that vulnerable S-phase

requires prolonged or repeated exposure to the drug’198. To my mind, this is an

important matter as it negates the suggestion that whether or not the drug will act on

leukaemic cells in the S-phase of the cycle is a matter of pure chance. It is an ongoing

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process. It would stand to reason, therefore, that a prolonged absence of the drug in the

body, occasioned by infrequent and interrupted administration, would be an undesirable

circumstance.

21.4. The other matter on which Professor Boddy placed great emphasis was the fact that

cytarabine has a short half-life and is only effective for a limited period of time as it is

rapidly eliminated from the body199. For those reasons twice daily administration of

cytarabine during consolidation chemotherapy will provide a greater anti-leukaemic

effect than once daily administration200. In addition, Professor Boddy emphasised the

fact that the literature has suggested it is not a case of how much cytarabine is given in

terms of dosage, ‘but for how long the drug is around in the body, either as the result

of continuous infusion or repeated administration’201. As well, in Professor Boddy’s

opinion the existing literature underlined the importance of repeated exposure or

prolonged exposure to the drug that would be provided by a schedule of 12-hourly

administration and indicated that a more prolonged gap between administrations would

render them less effective. The evidence that Professor Boddy gave in relation to these

topics was largely uncontested. Insofar as any other evidence differed, I preferred the

evidence of Professor Boddy, an undoubted expert in relation to the pharmacology and

pharmacokinetics of cytarabine. I accepted all of that evidence.

21.5. Professor Boddy was asked to comment upon various treatment protocols in respect of

cytarabine, particularly in relation to dosage and frequency of administration within

those protocols. He told the Court that dosage schedules are derived from an

understanding of the pharmacology of cytarabine, how it works and how exposure to

different concentrations over different times might influence not only the anti-

leukaemic effect, but also the toxic effect. Thus, the derivation of a schedule is a

reflection of the two factors of anti-leukaemic effect and tolerability of toxicity. The

overall desire is to administer the most effective treatment which would be the one that

would provide the highest dose and the most continuous exposure, but tempered by

questions of tolerability. In particular the schedule of 12-hourly administration on

alternate days had been largely ‘based on those empirical observations of the

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tolerability of the treatment and also the anti-leukaemic effect in terms of the purpose

of the consolidation treatment that patients remain in remission’202.

21.6. In his oral evidence Professor Boddy was asked to comment on the suggestions that

had been made either in correspondence or in clinicians’ conversations with the

deceased and their families to the effect that there was no universally accepted

evidence-based standard for consolidation chemotherapy in AML. Professor Boddy

agreed that there is no evidence-based standard in the sense that there has never been,

say, a comparison between twice daily and once daily administration of cytarabine. But

he said ‘just because there isn’t that evidence base, doesn’t necessarily mean that there

isn’t a sound clinical and pharmacological reason for choosing one of those schedules

over the other, ie, the twice daily administration’203. Professor Boddy expressed the

view that a proposal for a comparative study would require ‘some pretty strong grounds

for thinking that an alternative was going to be better’ or at least as good in terms of

efficacy with reduced toxicity204.

21.7. Mr Trim QC in cross-examination put to Professor Boddy the proposition that there has

been no optimal type or number of consolidations identified in the literature. Although

Professor Boddy acknowledged that there had certainly been some debate as to the

number of cycles and the dose of cytarabine that should be administered, as far as he

was aware there has been no active debate that would bring into question whether 12-

hourly administration on days 1-3-5 is the accepted and optimal treatment for these

patients. Professor Boddy made the point that he had not heard of any proposition

postulated within the scientific community that contradicted the notion that anything

other than 12-hourly was the accepted rate of administration. He added that he had not

heard of any proposition suggesting that reducing the repeated or prolonged exposure

to the drug cytarabine would be more or equally beneficial in terms of anti-leukaemic

effect205. I would add for my part that the overwhelming conclusion from the whole of

the evidence, including the literature that I will discuss, is that there has been no

scientific debate regarding dosage frequency. For instance, no protocol in which

cytarabine is administered once daily on alternate days has been drawn to my attention.

In this regard, Professor Boddy contemplated how one could ethically deal with an issue

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such as this in a scientific setting and concluded that there would be no scientific or

clinical justification within a clinical trial for putting patients in the position of being

randomised to one dose level and others to a different dosing level. He said ‘to my

knowledge, no clinical or scientific justification for asking that question’. He stated

that this was the overriding ethical issue. In this, Professor Boddy made complete

sense.

21.8. Professor Boddy also expressed the opinion that although there may be other methods

of administering consolidation chemotherapy, that having chosen one of the recognised

options adherence to the protocol described was essential in order to obtain the expected

benefit. He said:

‘The protocol wasn’t adhered to, therefore the anticipated benefit is less likely.’ 206

Professor Boddy acknowledged in a general sense that in an individual case it is not

possible to conclude whether or not departure from the protocol contributed to early

relapse in the patient, but added that if one posed the question as to whether or not the

departure reduced the anti-leukaemic benefit in the patient’s treatment, the answer

would have to be in the affirmative. Professor Boddy summed up his views in this way:

‘Okay, because the interval between doses has been identified as a factor that limits the

anti-leukaemic effect of that treatment, and it departs from the schedule from which an

anticipated clinical benefit and risk of toxicity is derived. So departing from that schedule

means that calculations that are made about anticipated benefit and anticipated risk are

undermined by the application of the non-specified schedule of administration.’ 207

21.9. In his written report Professor Boddy deals with the question, ‘how does a once daily

dose impact on the efficacy of the treatment for elderly patients with AML?’. His

answer in part was as follows:

‘In principle, administration of a lower total dose, and limiting exposure to anti-leukaemic

concentrations of cytarabine to a single short period with once daily dosing would provide

a less than optimal treatment.’

He also stated:

‘It is possible to say that the regimen of 1g/m2 once daily is likely to have an inferior anti-

leukaemic effect compared to 1g/m2 twice daily, as the design of dosage regimens is based

on probabilities of optimal treatment.’

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and:

‘Administration of cytarabine as a single daily dose would limit the exposure of the patient

to effective concentrations of the drug, and reduce the anti-leukaemic effect of the

treatment.’

In addition:

‘A greater duration between doses allows leukaemic cells greater time to recover before

the next dose is administered and, more importantly, only those cells in the S-phase of the

cell cycle during a short window around the time of administration would be affected by

the single dose administration. A second dose after 12 hours would be likely to hit those

cells which were in the non-replicative phase of cell cycling during exposure from the first

dose.’

21.10. I accepted Professor Boddy’s evidence that based on pharmacological and

pharmacokinetic principles, in general terms once daily administration of cytarabine on

alternate days, for the reasons he gave, would not provide as great an anti-leukaemic

effect as twice daily administration. To my mind the evidence was overwhelming that

in principle, and leaving aside for the moment the issue as to the efficacy of

consolidation therapy in the elderly, once daily administration on alternate days would

be less likely to eradicate leukaemic cells and would be more likely to result in a relapse

than otherwise would be the case with twice daily administration.

21.11. One matter that Professor Boddy was at pains to refute was the suggestion put to him

in cross-examination that there was no established optimal treatment regimen or

standard treatment for elderly AML patients in the consolidation phase. He accepted

that there were a number of alternative regimens but importantly all of them adhere to

the same principles relating to the administration of the drug; which is to provide

repeated exposure to the drug over a period of days without a break of 36 hours208. I

return to the question of the anti-leukaemic effect in the elderly below.

21.12. In his oral evidence Professor Boddy was cross-examined extensively about the

efficacy and value of consolidation chemotherapy in elderly patients. Much of this

cross-examination was based upon literature that I will discuss. Some of Professor

Boddy’s evidence concerning efficacy in the elderly was given upon his being recalled

in light of certain evidence that Associate Professor Andrew Wei gave after Professor

Boddy had given his original evidence.

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21.13. As to the definition of elderly, I was not entirely certain where the cohort of elderly

patients began and whether it was at the age of 60 or 65. However, I assume for these

purposes that elderly would include the 60 to 65 age bracket.

21.14. Professor Boddy acknowledged that the anti-leukaemic effect of cytarabine has been

shown to be less in older patients than in younger patients209. He added that the benefits

of chemotherapy in older patients is generally less than that seen in younger patients.

As far as Professor Boddy was concerned the relevant elements in that regard were an

elderly patient’s comorbidities, the greater toxicity that will be experienced in older

patients and the intrinsically greater resistance to treatment within the leukaemic cells

of those patients. However, he added that the response to therapy will differ from one

patient to the next within the same age group and said that he did not believe that

leukaemic cells in the elderly ‘are in some way bullet proof in terms of cytarabine

treatment’210. He added that the cells are sensitive to cytarabine treatment and that

sensitivity is maximised by the twice daily administration. He repeated as he had on a

number of occasions during his evidence in this context that the duration of exposure

and frequency of administration is a factor that is highly relevant to the anti-leukaemic

effect.

21.15. Professor Boddy stated that a study comparing once daily versus twice daily

administration in order to demonstrate that there is no difference in outcome in elderly

AML patients has never been undertaken211. This assertion was universally accepted in

the evidence tendered to the Court. Certainly, no such study was drawn to the Court’s

attention. He acknowledged Associate Professor Wei’s evidence that older patients

with AML were more likely to have mutations that were inherently resistant to

chemotherapy, and also acknowledged that the issues raised by Associate Professor

Wei were more in the realm of a clinical haematologist. However, Professor Boddy

expressed the view that the literature did not necessarily support Associate Professor

Wei’s opinion in that regard212. Specifically, Professor Boddy said that in reviewing

the literature he did not see any distinction drawn between younger patients and older

patients. In addition, Professor Boddy suggested that in the elderly there are other

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factors to consider apart from inherent resistance of the leukaemic cells to specific

treatment213.

21.16. Professor Boddy dealt with a matter that had been raised by Associate Professor Wei

and that was Associate Professor Wei’s suggestion that in the elderly a concept known

as ‘drug pumps’ might adversely alter the efficacy of treatment in that cohort of

patients. Professor Boddy told the Court that he was very familiar with the concept of

drug pumps. It was an area in which he had undertaken research. Professor Boddy

stated that he had not been able to locate any specific reference to drug pumps that were

relevant in the context of cytarabine treatment and resistance to therapy in the elderly214.

He stated that cytarabine is not a particularly good substrate for the well-known pumps

that exclude drugs from cells215. In short, Professor Boddy said that there was no

evidence that he could find to suggest that this concept applied to cytarabine uptake in

cells within the elderly. I will deal with this issue in more detail when dealing with

Associate Professor Wei’s evidence.

21.17. The effect of Professor Boddy’s evidence in my view was that in his opinion, having

regard to the pharmacological and pharmacokinetic principles adhering to cytarabine

administration, there is no reason to suppose that consolidation therapy using that drug

has no efficacy in respect of elderly patients. In addition, and in any event, there was

no justification based on scientific grounds that could in any way support the notion

that cytarabine administration once daily on alternate days would have the same

efficacy as cytarabine administered in accordance with the correct protocol. Professor

Boddy was asked to comment upon the treatment and outcomes of the four deceased

persons and that of Mr Knox. Regarding Mrs Pinxteren, Professor Boddy pointed out

that her remission after the induction phase of her chemotherapy indicated that her

disease was sensitive to the drugs that had been administered to her. As far as her

consolidation therapy was concerned he indicated that in order to achieve an

anti-leukaemic effect there was a necessity to provide prolonged exposure to the drug

or repeated exposure to the drug within a period and that in Mrs Pinxteren’s case

obviously only half of the protocol dose had been administered to her. However, the

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more important feature was the lack of the repeat dose within the same 24 hour period

in her case. Her treatment was not in accordance with the protocol. He said:

‘The protocol was derived from established clinical experience and evidence of a certain

level of efficacy of that treatment and so she received less than that defined treatment, and

so the degree of anti-leukaemic effect that would be the result of her treatment was less

than intended in the protocol.’ 216

According to Professor Boddy, based on pharmacological principles the leukaemia was

not treated at the level that it should have been and while he could not say for certain

whether this contributed to Mrs Pinxteren’s early relapse, it ‘shifted the balance of

probability towards an increased likelihood of that happening’217. He agreed with the

proposition that the correct administration of cytarabine in terms of its frequency being

reduced by half was likely to have increased the risk of relapse at some point218.

21.18. In his evidence Professor Boddy candidly acknowledged that he had struggled with the

question as to whether the protocol error contributed to or brought about

Mrs Pinxteren’s early relapse. Rather, as indicated above, Professor Boddy preferred

to answer a question in terms that suggested that Mrs Pinxteren did not receive the

optimal anti-leukaemic effect and that this would have increased the likelihood of an

early relapse.

21.19. As far as Mr McRae was concerned Professor Boddy similarly opined that the absence

of a second dose within the 24 hour period would lessen the anti-leukaemic effect of

his treatment219. Professor Boddy suggested that with the underdosing of Mr McRae,

the balance of probability shifted towards a reduction in the anti-leukaemic effect and

therefore a reduction in the benefit that Mr McRae would have received from the

treatment he had undergone. He agreed with the proposition that it was a possibility

that the underdosing contributed to, or brought about, Mr McRae’s relapse. He said:

‘… there’s only one direction that that can push the probabilities if you omit that second

dose, and that’s in a negative direction.’ 220

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Put in another way, he said that deviating from a protocol dose that had been derived

from a series of clinical investigations to optimise the treatment schedule and dosage

would mean that one is deviating from the expected benefit from that treatment221.

21.20. Again, Professor Boddy was not prepared to state any opinion in specific terms as to

whether Mr McRae’s treatment would have contributed to his relapse, but suggested in

general terms that underdosing or deviating from the protocol has the possibility to

lower the anti-leukaemic effect of the treatment222. In the context of discussing

Dr Hotinski’s meeting with Mr McRae in which she indicated and recorded that she

was unsure if the underdosing contributed to the relapse in Mr McRae’s case, Professor

Boddy noted that ‘of course this is a possibility’223.

21.21. Regarding Mr Higham, Professor Boddy told the Court that in his view it was possible

that the incorrect administration of cytarabine in Mr Higham’s two consolidation

rounds was likely to have increased the risk of relapse. I did not understand Professor

Boddy to be expressing any positive opinion that it did contribute to the relapse in

Mr Higham’s case.

21.22. As to Mr Higham’s so-called ‘catch-up round’ Professor Boddy suggested that its

possible therapeutic effect would in part be a question for a haematologist. He

suggested that it would be difficult to say whether the catch-up round would have been

as beneficial as properly administered consolidation rounds in the first instance224.

However, he indicated that there is no doubt that the catch-up round would have had

some anti-leukaemic effect, but judging the relative impact of it compared to a situation

where it had been given weeks earlier in combination with idarubicin was very hard to

predict with any certainty225. Complicating the issue in Mr Higham’s case was the delay

involved in the administration of the catch-up round. In this context Professor Boddy

pointed out that chemotherapy regimens for consolidation were designed to follow on

from the remission achieved from induction therapy as soon as was possible226.

21.23. Professor Boddy also commented on Dr Beligaswatte’s letter regarding Mr Higham,

and in particular the assertion within the letter that the optimal ‘dose’ of cytarabine in

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consolidation had been ‘extensively debated in the literature’. Professor Boddy pointed

out that all of the studies that he had seen used the 12-hourly repeated administration

of cytarabine. As far as the term ‘dose’ was concerned Professor Boddy pointed out

that the key feature in Mr Higham’s consolidation chemotherapy was the absence of

the second administration within the 24 hour period. He pointed out that administering

a dose in the morning as well as in the evening would involve an anticipated benefit

that would have been greater than if one had given the full dose as a single dose in the

morning. One could administer the ‘same dose’ but not meet the pharmacological

principles in respect of the most effective way in which to administer the drug227. In

the same context he pointed out, as he had repeatedly pointed out in his evidence:

‘It’s widely accepted that a prolonged or repeated exposure to the drug is the optimal way

to use cytarabine.’ 228

21.24. Regarding Mrs Bairnsfather, when asked as to whether the incorrect administration of

the cytarabine in the first and only consolidation round was likely to have increased the

risk of relapse in her case, Professor Boddy said:

‘Yes, that’s certainly possible.’ 229

21.25. Regarding Mr Knox, Professor Boddy dealt with the issue as to whether or not having

regard to Mr Knox’s good cytogenetic and molecular profile upon diagnosis and the

absence of myelodysplasia and comorbidities, the relapse following a successful

induction therapy was surprising. Although Professor Boddy stated that this was a

question for a clinical haematologist, he suggested that these favourable characteristics

would have put Mr Knox’s chances of a longer term remission at the upper end of the

scale. Later in his evidence Professor Boddy added that it was possible that the

administration error contributed to, or brought about, Mr Knox’s relapse230.

21.26. Regarding Mr Knox’s catch-up round and whether that would have provided the same

benefit as two correctly administered consolidation rounds, Professor Boddy suggested

that it would have been of less benefit than if it had been administered as part of the full

protocol231.

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21.27. Professor Boddy was also asked to comment upon the assertion that had been made to

Mr Knox and his family on 17 February 2015 that there was no evidence that his

leukaemia control had been compromised as a result of the underdosing as there was

‘no universally accepted evidence-based standard for consolidation’. As already

indicated, Professor Boddy acknowledged that strictly speaking the assertion that there

was no evidence-based standard was true in the sense that there had never been a

scientific or clinical comparison between twice daily and once daily administration.

However, it was in this context that he emphasised that a lack of such an evidence-

based standard did not imply that a sound clinical and pharmacological reason did not

exist for choosing one administration schedule over another, in this instance the

preferred schedule being twice daily administration.232

21.28. When it was suggested in cross-examination to Professor Boddy that it was not possible

to say that it is more likely than not that the departure from the protocol had an effect

on the remission duration of the involved patients, he stated:

‘It’s not possible to say in an individual case yes, this contributed to the early relapse in

that patient. But you asked the question of whether or not applying the drug in the way

that these patients received reduced the anti-leukaemic benefit from that treatment and the

answer is yes.’ 233

22. The evidence of Associate Professor Wei

22.1. I know turn to the evidence of Associate Professor Wei who is a Clinical and

Translational AML Researcher and a Clinical Practitioner Fellow. In 2008 he joined

the Alfred Hospital in Melbourne to develop the AML research program, developing

and leading, as Chief Investigator, 33 AML trials. He has been the AML Disease Group

Chairperson for Australasian Leukaemia and Lymphoma Group (ALLG) since 2009

and has led multiple nationwide cooperative group studies as Chief Investigator. He is

an Executive Member of the ALLG Scientific Advisory Committee. He is Chair of the

Cancer Council Victoria Clinical Network, a Member of the European Leukemia

Network working party and an abstract reviewer for the American Society of

Hematology meeting. He is also a Member of the Editorial Board of the publication

‘Blood’ which is the reputable Blood Journal that has been referred to elsewhere in

these findings.

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22.2. Associate Professor Wei is one of the contributors to a scientific publication entitled

‘Diagnosis and management of AML in adults: 2017 ELN recommendations from an

international expert panel’234. This article, which I shall mention in more detail in a

later section of these findings, suggests that in respect of intermediate and adverse risk

genetic AML in older patients greater than 60/65 years there was no established value

of intensive consolidation or consolidation therapy. It is fair to say that Associate

Professor Wei’s evidence in the inquest is in keeping with that proposition.

22.3. Associate Professor Wei provided a report dated 7 November 2017235. In that report

Associate Professor Wei supports a definition of greater than 65 years as defining

elderly AML. He cites the article to which I have referred and to which he was

signatory and reiterates that no consensus exists for the consolidation therapy of elderly

patients with AML. Similarly, he also asserts that there remains no universally

acceptable optimal standard consolidation therapy for elderly patients with AML.

Insofar as this implies that there are no accepted standards for the elderly at all, I reject

that for the reasons already given. There are a number of accepted standards, and they

apply to the elderly. The AGGL M15 study, that is to say the standard that should have

been administered in these cases, is one such standard.

22.4. Associate Professor Wei was asked to comment on evidence that Professor Gibson

gave236 to the effect that to Professor Gibson’s knowledge there were no widely

accepted and widely used consolidation regimens that involved once daily

administration of cytarabine in consolidation therapy. Professor Gibson had suggested

that it is a universally accepted pharmacokinetic rationale that once a day administration

is insufficient. To this proposition Associate Professor Wei opined that Professor

Gibson was correct in respect of adults below the age of 60-65, but that the situation

was less clear for older patients. In dealing with Professor Gibson’s evidence Associate

Professor Wei referred to the American NCCN guidelines of 2017 as representing the

most authoritative set of guidelines in the USA. For post remission therapy for patients

over 60 years the NCCN recommended a number of clinical measures that included the

identical protocol to that which was intended to be administered to the patients in

question in this inquest, plus idarubicin. There is no recommendation within those

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guidelines that once daily administration on alternate days is appropriate. Relying on

this guideline and other material, Associate Professor Wei in his report asserts:

'Therefore, a wide variety of consolidation approaches have been adopted as acceptable in

older patients with AML and there is no standard as stated by either the ELN or the NCCN

guidelines.'

In addition, Associate Professor Wei asserts that in elderly patients there is no clear

relationship between dose or frequency of cytarabine use and clinical outcome. He

asserts that dosing regimens for consolidation in elderly AML vary widely between

infusion or twice daily and that no single approach is clinically accepted to be more

effective than any other approach. Insofar as these assertions were meant to suggest

that the erroneous regimen that was administered to the patients in question was a

known or acceptable consolidation regimen, this would have to be rejected. There is

simply no evidence that the erroneous regimen is one that is acceptable on any level.

Naturally, Mr Trim QC seizes upon this to argue that the erroneous protocol

administered to the patients in question has legitimacy. I reject that argument. On the

contrary, on any basis it has no legitimacy whatsoever.

22.5. The crux of Associate Professor Wei’s report is that there is no evidence that the

intended consolidation would have improved the clinical outcome within the four

patients who have died and in Mr Knox.

22.6. It is necessary to discuss here in more detail Associate Professor Wei’s oral evidence

regarding the purpose of the ALLG AML M15 study. The ALLG had considered that

standardisation of practice in AML chemotherapy was desirable. Secondly, it was felt

that the higher doses of cytarabine in consolidation therapy was not called for as the

emerging literature suggested that a dose of cytarabine above 1g/m2 was unlikely to be

beneficial. Following conferences in which experts around Australia had participated,

a consensus had been reached as to the most appropriate treatment to be used for older

patients, in this case older patients being defined as patients above the age of 55 years.

It was collectively agreed that the 7+3 protocol would remain the appropriate induction

protocol and that two cycles of consolidation of cytarabine at 1g/m2 twice a day on days

1, 3 and 5, with idarubicin, would also be appropriate. The aim of delivering the highest

tolerable dose was in the hope that most patients’ leukaemias would experience some

degree of efficacy within that higher tolerable range. Associate Professor Wei asserted,

however, that what was still unknown was the minimum effective dose. So the practice

was to give as much as could be delivered within acceptable tolerability. There was a

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balance to be struck between maximum acceptable dose of chemotherapy to provide

optimal efficacy on the one hand and on the other the minimum amount of toxicity.

Associate Professor Wei explained that the M15 study was designed principally for

older patients up to the age of 65, the aim being that patients up to the age of 65 who

had maintained remission after consolidation therapy as described would be provided

with a maintenance therapy using the drug lenalidomide. To this end it was desirable

that all hospitals within Australia conform to the same protocols for induction and

consolidation therapy. As far as patients over the age of 65 was concerned, it was

envisaged that while they would receive the same chemotherapy regimens as persons

younger than 65, including the same consolidation therapy regime, they would not be

eligible for the trial in respect of lenalidomide maintenance therapy. Thus it was that

on the background of the ALLG M15 study the RAH AML protocols were amended

in July 2014. I note from that protocol, however, that the RAH protocol was said to

apply to persons of age 56 to 75 years. It was this protocol dated 15 July 2014237 that

was in error in that it only prescribed once daily administration of cytarabine in the

HiDAC1-IDA consolidation therapy where the M15 study had contemplated twice

daily administration.

22.7. Associate Professor Wei explained that the reason the trial was not intended to include

over 65 year old’s was that it is:

'… well-known that the outcomes of patients above the age of 65 were substantially worse

than younger patients and hence including patients with a worse prognosis with a good

(sic) means it will be very difficult to establish the benefit of the maintenance therapy.' 238

On can readily understand the desirability of avoiding trial outcomes being skewed by

the infiltration of less certain factors, but, as seen, the consolidation therapy would still

be made available to patients over 65 years regardless of their actual participation in

the study. And in any event, I have not seen it written or said that consolidation has no

benefit at all in the elderly cohort or that the practice of consolidation in that group

should be curtailed. Indeed, if it was thought that there was no benefit to be derived

from the practice within the elderly at all, on would have thought that by now every

effort would have been made to spare elderly patients from all of the terrible negative

side effects that the practice entails.

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22.8. In his oral evidence Associate Professor Wei restated that there was a diversity of

approaches used in older patients, but I have already found that any suggestion that the

erroneous protocol adopted at the RAH and the FMC was in any sense an accepted or

acceptable protocol would have to be rejected.

22.9. Also in his oral evidence Associate Professor Wei suggested that within older patients

there is substantially higher resistance to the drugs that are used and that for this reason

considerations that include differing doses, differing frequency of doses, be they daily

or alternate daily, and whether the dose is low, high or intermediate have not made a

material difference in the overall survival of patients over the age of 60-65 years239.

Associate Professor Wei stated that the sensitivity of the leukaemic cells in older

patients is much less because of more complex chromosomal or other abnormalities

such as the FLT3-ITD mutation and others. That said, Associate Professor Wei

acknowledged that he did not possess any trial data that compared daily versus twice

daily approaches, so in reality all that he could say was that the impact of the unintended

dose in these cases was uncertain. What Associate Professor Wei was saying to the

Court, I think, was that unlike in younger patients where clinical trials have

demonstrated certain benefits in consolidation therapy, there had been no such trials in

respect of the elderly, a matter that the literature does tend to bear out. As a result, he

opines that the minimum effective dose of cytarabine in older patients is not known240.

He was asked these questions:

'Q. Does that mean that the dose actually delivered here, may have had the same

therapeutic benefit for this group of patients, as the intended dose.

A. It's a possibility.

Q. One can't say one way or the other.

A. No.' 241

When asked whether an available extension of that proposition was that it was possible

that the once daily administration was detrimental in respect of the outcome for these

patients, Associate Professor Wei was somewhat vague in his response. He said:

'We just don't know because we don't have any clinical outcome data with that specific

regimen.' 242

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Indeed, throughout the entirety of Associate Professor Wei’s evidence he demonstrated

a conspicuous reluctance to make any kind of acknowledgment or concession that the

erroneous frequency of dosage had or even could have had any detrimental effect. He

did say that the only answer that he could give was that twice daily dosing is based

upon pharmacokinetic principles of maximum exposure to cells, a matter that the

pharmacologist Professor Boddy was at pains to point out and which I unhesitatingly

accept243.

22.10. When questioned by me as to whether anyone had ever suggested that once daily

administration on alternate days has the necessary efficacy, Associate Professor Wei

said that he was not aware of any information that would make us sure that it was

adequate. However, he agreed with the proposition that nobody in their right mind

would start treating any patient on that basis except perhaps in older patients with

abnormal kidney function244.

22.11. In cross-examination Associate Professor Wei told Mr Griffin QC for the families of

the deceased and for Mr Knox and Ms Crannage that the intended consolidation therapy

regimen was a regimen designed to provide acceptable levels of toxicity with the goal

of trying to eliminate as many leukaemic cells as possible245. He also agreed with Mr

Griffin QC that in achieving that goal one would need to regard the frequency with

which the drug is delivered, together with its infusion time and the number of days over

which it is delivered, as representing elements that were based upon pharmacokinetic

principles that dictated the optimal way of delivering the drug246.

22.12. Also in cross-examination by Mr Griffin QC, Associate Professor Wei acknowledged

that the erroneous once a day administration over days 1, 3 and 5 had not been seen or

employed under any approved or recommended protocol. He also agreed that he would

not recommend it himself; he said ‘we wouldn’t recommend it on the basis that we

haven’t seen it being used and we don’t know what its clinical efficacy is’247. When

Mr Griffin QC put to Associate Professor Wei that once daily delivery would not

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maximise the anti-leukaemic effect of the drug, Associate Professor Wei gave a long

answer:

'If you reduce the leukemic burden by 90% and then 90% when you next give it, I guess

my point is that, if you're doing this in a petri dish where you know exactly that the cells

are dividing every 12 hours, then that frequency is important. In a patient where, as you've

mentioned, there's divisions broad spectrum, it could be 12 hours, it could be two days, it

could be three days, the reason I'm sitting on the fence about what you're trying to say is

that, I don't know whether giving it on day 3 may have been the perfect time to give that

treatment, because that's when the patient's cells were dividing and then we reduce 90%

of the leukaemia at that point. However, if we gave it 12 hours and they weren't dividing,

it could have been ineffective. That's the difficulty of treating leukaemia in patients and

the lack of confidence we have with knowing exactly what the minimum effective dose

and schedule is, particularly when the leukemic cells are so resistant to begin with.' 248

The reference to the cells dividing in that passage is, of course, a reference to the need

for the drug to be active during the S phase of cell division. Associate Professor Wei’s

assertion that ‘if we gave it 12 hours and they weren’t dividing, it could have been

ineffective’ to my mind ignored the need for the patient to be exposed to the anti-

leukaemic effect for as long as possible and as frequently as possible. The purpose of

providing 12 hourly administration is to maximise the likelihood of the drug being

active when cells are dividing. It stands to reason that the more frequent the

administration, the greater the likelihood of the drug being active during that phase of

the cell cycle and therefore the greater the likelihood that more leukaemic cells will be

eliminated. As Professor Boddy opined, as seen earlier, the S-phase of the cycle is a

continuous circumstance, not one that occurs from time to time. Frankly, I do not see

the logic in Associate Professor Wei’s analysis as set out in the above answer and I

reject it.

22.13. On the other hand, the uncertainty surrounding cell resistance to drug therapy in the

elderly is another matter, and a matter to which I have given anxious consideration.

Associate Professor Wei testified that in the elderly cell resistance to chemotherapy was

likely to lessen the therapeutic effect of the treatment. He told the Court that acute

leukaemia in older patients expresses more mutations that inherently are resistant to the

chemotherapy. As well, there is a greater frequency of leukaemic cells in the elderly

that have what are termed ‘drug pumps’, that is to say cells that tend to pump the drug

out so that no matter how much drug you introduce into the patient the cell is going to

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pump it straight out249. Professor Boddy, as seen above, also referred to the concept of

drug pumps, but he suggested that the concept had limited application to the drug

cytarabine. I prefer the evidence of the pharmacologist Professor Boddy on the subject

of drug pumps and find that the concept has no application to the issues concerning the

efficacy of cytarabine consolidation therapy in the elderly.

22.14. However, when the point was made to Associate Professor Wei by Mr Griffin QC that

increased resistance by the leukaemic cell to this therapy would point to an even greater

need for strict adherence to the recommended regimen of delivery, Associate Professor

Wei repeated that this line of thinking would not necessarily apply in older people

because in elderly patients the leukaemic cells are inherently resistant to being fully

eliminated. On the same topic Mr Griffin QC posed the following question and

Associate Professor Wei gave the following answer:

'Q. And so it's obvious, is it not, that you would not be happy about such a therapy being

administered that significantly diminished the exposure of that person to the

antileukemic drug during the period of that particular administration of the

consolidation.

A. I would be not happy if that was our protocol and somebody didn't give the protocol

because of an error. But if as a unit we had agreed on a different protocol, the ones

that I've mentioned before, and that was delivered, I wouldn't be unhappy. ' 250

It seemed to me that this was a simple question, the answer to which was obvious,

namely an affirmative answer. It also ignored the fact that on the evidence presented

at the inquest no agreement has ever been reached that the erroneous protocol as used

in these cases is appropriate. As Associate Professor Wei’s cross-examination by

Mr Griffin QC proceeded it seemed to me that he stopped short, albeit not very much

short, of advocating a proposition that consolidation chemotherapy was virtually

valueless in the elderly. In any case I would reject such a proposition as simply

unsupportable having regard to established clinical practice.

22.15. Associate Professor Wei was cross-examined about the fact that persons over the age

of 65 years, although not participating in the M15 trial, do receive the same

consolidation therapy under the protocol as persons between the ages of 55 and 65

years. Associate Professor Wei acknowledged that in respect of the older patients who

do not undergo the trial, it has never been suggested that in their case they could be

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trialled on once a day administration on days 1, 3 and 5251. Associate Professor Wei

added that if one was to ask another haematologist whether once a day administration

would make any material difference, they would probably say ‘probably not’252. In the

light of that assertion, the obvious question was posed to Associate Professor Wei as to

why once a day administration was not routinely tried in patients over 65 years. To this

Associate Professor Wei stated that once a day administration is indeed provided to this

age group but acknowledged, as he must, that such a regime involved once daily

administration every day and not on alternate days253.

22.16. Later in his evidence Associate Professor Wei pointed out that even in older patients

who have favourable cytogenetics and molecular factors such as the presence of the

NPM1 mutation together with the absence of the FLT3-ITD mutation, a circumstance

that is broadly accepted as giving rise to better prognosis, there are other genes within

the patient that may not be known and which would substantially reduce the survival

outcomes of those patients254. He did agree that there was some significance in an

elderly patient having those two favourable characteristics and agreed that such a

patient would do better because they are more likely to respond favourably to

chemotherapy because of a lesser resistance to it255.

22.17. If I understood the evidence of Associate Professor Wei correctly, it is that the

resistance to therapy within an individual cannot be known with certainty due to the

possible presence of adverse and unknown molecular factors peculiar to, or at least

more commonly experienced in, the elderly such that the efficacy of consolidation

therapy in an individual cannot be predicted with certainty. On the other hand, I did

not understand him to be saying that consolidation therapy with cytarabine has no

benefit in the elderly whatsoever. I would reject that notion in any case as it would be

completely contrary to established clinical practice in respect of the treatment of elderly

AML patients. The point is worth making here that it is not as if consolidation

chemotherapy in the elderly is an undertaking to be taken lightly or merely in hope.

Regardless of its efficacy in an individual patient, it is not without its serious adverse

consequences for the patient in terms of its side effects.

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22.18. Associate Professor Wei commented upon the individual cases with which this inquest

is concerned. Regarding Mrs Pinxteren, Associate Professor Wei acknowledged that

her remission duration of less than three months was a short period of remission. The

question in her case was whether that was consistent with her clinical and biological

characteristics. Although in her case the NPM1 factor was a favourable factor, other

molecular factors that were unknown may have explained why in her case there was a

resistance to chemotherapy such that the patient had such a quick relapse256. Associate

Professor Wei acknowledged that from his point of view Mrs Pinxteren’s was the

clearest example of a very early relapse. He suggested that he would take a more

cautious approach to Mrs Pinxteren’s case. She was of advanced years. Although she

had the NPM1 mutation which is associated with better outcomes, if she had

myelodysplastic syndrome leading to secondary AML, it would have been difficult to

produce a long term remission because eradication of the myelodysplastic clone is

difficult even with intensive chemotherapy257. In the event he agreed with Professor

Gibson that in respect of Mrs Pinxteren it was not possible to say that the non-protocol

dosing contributed to her less than expected outcome258.

22.19. Regarding Mr McRae, Associate Professor Wei suggested there was a question mark

as to whether or not Mr McRae had in fact achieved complete remission. He had

demonstrated persistent myelodysplasia after having intensive chemotherapy. There

may have been persistent erythroleukaemia suggesting perhaps a poorer prognosis. On

the whole Associate Professor Wei suggested that in Mr McRae’s case it was not

possible to make an assessment as to whether he did better or worse than would

normally have been expected259.

22.20. Regarding Mr Higham, Associate Professor Wei stated that it was impossible to say

one way or the other as to whether the consolidation dosage received by him had any

deleterious effect or whether he fared worse than expected having regard to his

remission duration and overall survival260.

22.21. Regarding Mrs Bairnsfather, Associate Professor Wei pointed out that she was of

monosomy 7 which was an adverse finding. He suggested that it was not possible to

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say that the consolidation chemotherapy had any deleterious effect, or that having

regard to her survival duration she had a worse outcome with the therapy that had been

administered to her.

22.22. Associate Professor Wei suggested that in the case of Mr Knox it was not possible to

draw any conclusions to whether the actual dose administered had any deleterious

effect. In cross-examination by Ms Kereru of counsel assisting, Associate Professor

Wei stated that he would ‘just’ put Mr Knox into the elderly AML category. He

acknowledged that the presence of the NPM1 mutation and the absence of the FLT3-

ITD mutation were circumstances in Mr Knox’s favour. Associate Professor Wei dealt

with Professor Gibson’s opinion that having regard to Mr Knox’s age, to his de novo

AML and to his good prognostic markers that his was probably the most clear cut case

of an outcome that was less than might reasonably have been expected. To this

proposition Associate Professor Wei said that it was difficult to be sure about that

without knowing the status of other genes in this patient, one of which at least is known

to reduce the survival outcome of patients with the NPM1 mutation. In any event the

timing of Mr Knox’s relapse was consistent with the favourable NPM1 mutation in his

case because two years of remission is towards the middle to upper boundary of what

would be expected in a patient in that category.

22.23. As to the so-called catch-up rounds, Associate Professor Wei indicated that in the case

of Mr Higham and Mr Knox the additional rounds of chemotherapy represented

appropriate therapy, but opined that there was no evidence that the extra treatment was

obviously beneficial261. Similarly, in cross-examination by Ms Cliff of counsel,

Associate Professor Wei did not have anything adverse to say about any delay in the

administration of the catch-up rounds and suggested that there were reasonable clinical

circumstances that explained time lapses between the conclusion of consolidation and

the administration of the catch-up round in either case. In the event, I am not prepared

to contend otherwise.

23. The evidence of Professor John Gibson

23.1. I turn to the evidence of Professor John Gibson who is a Fellow of the Royal College

of Pathologists of Australasia, a Fellow of the Royal Australasian College of Physicians

and a Fellow of the First Faculty of Science. He has medical degrees with first class

honours as well as a Doctor of Philosophy. He is the Senior Staff Specialist, Institute

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of Haematology at the Royal Prince Alfred Hospital. He is also Head of the

Department, Institute of Haematology at the Royal Prince Alfred Hospital. He is the

Alan Ng Professor of Haematology, Faculty of Medicine, University of Sydney.

23.2. Professor Gibson had originally been tasked to provide an expert opinion in relation to

the treatment for AML of Mrs Pinxteren, Mr McRae and Mr Higham. His report was

tendered to the inquest262. Upon the death of Mrs Bairnsfather he was asked to provide

a similar expert report in relation to Mrs Bairnsfather’s treatment. Ultimately Professor

Gibson also provided a report in relation to the treatment of Mr Andrew Knox.

23.3. Like Professor Boddy, Professor Gibson emphasised the importance of twice daily

administration in order to maintain adequate levels for long enough for the drug ‘to do

its job’263. He was asked to comment on the consolidation protocol under which the

affected patients were treated and stated that once daily administration ‘would be

predicted to be less optimal’264. He added that by weight of experience there is good

reason for not administering cytarabine once daily and that based upon the

pharmacokinetics of the drug this would be suboptimal265.

23.4. Before dealing with the patients whose treatment is the subject of this inquest Professor

Gibson made the observation that it is impossible for him to predict absolutely what

would happen in an individual patient who received suboptimal treatment in

consolidation chemotherapy. However, he asserted that based upon the known

pharmacokinetics of the drug cytarabine, on clinical experience and on the fact that

cytarabine is given twice daily, one would have to assume that once daily is not the

optimal way to give it266.

23.5. Professor Gibson also dealt with two other general topics. I have already referred to

Professor Gibson’s opinion that there is an important correlation between early relapse

and diminished period of survival. He also stated that in his view it would be dangerous

to draw any unifying comment about patient outcomes from examining a cohort of only

10 affected patients. In other words, it would not be possible to draw conclusions in a

given case from the outcomes of the persons involved in the remaining nine cases267.

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Professor Gibson also specifically stated that this was so in the case of Mr Knox. He

opined that there was nothing in the history of Mr Knox and the notes that he had

examined in respect of him that throws any further light on the conclusions in respect

of the cause and circumstances of the deaths of the four deceased persons268. I accept

that evidence. However, for reasons already expressed, in my view the circumstances

surrounding the underdosing of Mr Knox were nevertheless relevant in this inquest.

23.6. Professor Gibson was extensively cross-examined by Mr Trim QC on behalf of the

doctors concerning the efficacy of consolidation chemotherapy in elderly patients.

Professor Gibson acknowledged that Associate Professor Wei was an internationally

recognised authority on the treatment of AML and that he respected his knowledge.

The scientific paper that was authored by Associate Professor Wei and others, to which

I have already referred, was drawn to Professor Gibson’s attention. Professor Gibson

stated that the claim within the paper that there was no established value of intensive

consolidation therapy in the elderly was new information to him, but was based upon a

very authoritative group of individuals’ opinions. Similarly an ELN guideline that

claimed that for patients with intermediate adverse cytogenetics from the age of 65 there

is no established value of intensive consolidation therapy and that there was no

consensus in existence for consolidation therapy of elderly patients with AML was also

drawn to Professor Gibson’s attention. I will deal with this article in another section

below, but to my mind it does not support any positive suggestion that consolidation

chemotherapy for AML in the elderly is utterly superfluous. It needs to be repeated

that no person, nor the literature that I have read, has suggested that consolidation

therapy for the elderly should no longer be administered. Nor does this paper nor any

other piece of literature that I have seen support a contention that consolidation

chemotherapy can be administered in any manner of ways, including only once daily

on alternate days. This point is illustrated by the following question and answer in the

evidence of Professor Gibson:

'Q. Are they saying in that article that there is no benefit to be derived in patients aged

60 or above with the consolidation, is that your understanding of what they're saying

there.

A. I don't think they're saying that, I think they're just saying nobody knows exactly the

right way to give it, and there are a number of options that one can contemplate, one

can use, and there are some that are more frequently used than others, such as the

ALLG proposition of 2014. With increasing evidence in terms of how - and

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particularly subdividing patients into risk groups, the optimal therapy or what's

considered to the optimal therapy changes with time. And that's something that is -

that's life in terms of treating leukaemia. ' 269

As to the suggestion, spoken or unspoken, to the effect that the consolidation

chemotherapy can be given whimsically or haphazardly, Professor Gibson stated that

the authors are simply stating that there are a number of possible treatments that one

can consider for the individual patient and that many people would still consider that

cytarabine consolidation as outlined is a very standard and very acceptable therapy

when given in the split dose on alternate days270.

23.7. In questioning by me, Professor Gibson was asked:

'Q. What do you understand the purport of the expression 'No established value of

intensive consolidation therapy'.

A. You could interpret that in two ways: my interpretation initially was that there is no

value of that as the best consolidation. The other interpretation is there is no value of

consolidation, but they don't actually say that. So I think that many people would still

consider consolidation on value, but then it comes down to which consolidation

regimen you think is the best for your patient.' 271

23.8. Professor Gibson agreed with Mr Trim QC’s proposition that in older patients

leukaemia is more resistant to chemotherapy, irrespective of the fitness of the patient.

Professor Gibson said that that was a valid generalisation272. I do not believe that there

is any real controversy about that. However, that is not to say that either induction

therapy or consolidation therapy is pointless or has no efficacy whatsoever.

23.9. Professor Gibson provided the Court with an analysis of Mr Higham’s circumstances,

treatment and death. Professor Gibson identified a number of relevant characteristics

in Mr Higham’s AML. Mr Higham had a normal Karyotype of 46XY, but was

FLT3-ITD positive and had likely pre-existing myelodysplasia, the latter two

characteristics being unfavourable prognostic markers. Other risk factors including his

age and pre-existing medical comorbidities presented as risk factors that would predict

for a poor outcome following chemotherapy. Following Mr Higham’s induction

chemotherapy he attained remission, but there were persistent myelodysplasia changes

in his bone marrow. This circumstance would suggest that Mr Higham was at risk of

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having a progression of his disease in the future such that the chances of a relapse in

his case were higher than otherwise. On the other hand, the remission resulted in the

FLT3-ITD being absent which Professor Gibson described as a ‘nice result’273.

However, the fact that he had this molecular abnormality in the first instance was still

to be regarded as a ‘bad marker’274. It remained as a predictor of a poorer outcome

notwithstanding that it was no longer detected in remission.

23.10. Professor Gibson regarded Mr Higham’s consolidation therapy as involving

sub-therapeutic doses. During the course of his evidence Professor Gibson amended

the appropriate terminology from ‘sub-therapeutic’ to ‘non-protocol’. The reason for

this is that the expression sub-therapeutic implied that the patient did not receive a

complete therapeutic benefit and that this was the matter that in his view was impossible

to predict in an individual case. Professor Gibson said:

'All one can do is draw the assumption that based on population data and clinical trials and

experience that this is not the right dose to achieve the optimum response.' 275

23.11. Professor Gibson commented upon Mr Higham’s ‘catch-up round’. He regarded this

as a very reasonable thing to have been undertaken. However, Professor Gibson was

not able to say what the efficacy of the catch-up round would have been compared to

the efficacy of a properly administered consolidation regime in the first instance. He

observed that there was no evidence base to demonstrate that the catch-up round was

the correct strategy. He said that it could well have been the case that Mr Higham’s

outcome was exactly the same as if he had proper consolidation, but that was simply

speculation. He said he had no way to prove or deny that proposition.

23.12. Professor Gibson was questioned about Mr Higham’s relapse. Having regard to the

remission duration and period of survival, Professor Gibson stated that he found it

impossible to say what the impact of his erroneous cytarabine dosing might have had,

or what the effect the catch-up round might have been. However, taking into account

the myelodysplastic changes as well as the FLT3-ITD component of Mr Higham’s

presentation, Professor Gibson asserted, ‘he probably had a pretty reasonable outcome

in that context’276.

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23.13. Professor Gibson also told the Court that Mr Higham’s period of survival was greater

than the median within population-based statistics. He said that if one examined the

population-based figures of outcomes of therapy in that age group, Mr Higham’s

outlook would have been above the median expected.

23.14. Professor Gibson was asked by me whether in the case of Mr Higham he discounted

the possibility that the incorrect frequency of dosage in his consolidation therapy

compromised his treatment. Professor Gibson said that he did not discount that

possibility277.

23.15. Professor Gibson then analysed Mr McRae’s circumstances. He said that Mr McRae

fitted into the elderly AML category. Mr McRae was diagnosed with acute erythroid

leukaemia of a sub-type that was considered to be a poor risk sub-type for AML. The

findings in his case were consistent with pre-existing myelodysplasia. He was of

normal Karyotype 46XY. In his oral evidence Professor Gibson explained that there

are particular characteristics of erythroid leukaemia that make it somewhat difficult to

manage. This sub-type of acute leukaemia is often associated with significant

cytogenetic abnormalities and often with a pre-existing myelodysplasia and is therefore

frequently quite difficult to treat278. In Mr McRae’s case the FLT3-ITD factor was

negative and this put him, in Professor Gibson’s opinion, into the intermediate category

of AML. However, overall the characteristics of Mr McRae’s illness were predictors

of a less than optimum outcome279.

23.16. According to Professor Gibson, following his induction therapy Mr McRae’s remission

status at first was not entirely clear as his peripheral blood counts had not returned to

functional levels notwithstanding that his blast count was consistent with

morphological remission. A further bone marrow examination was consistent with

remission, but there was ongoing evidence of previous myelodysplasia in Mr McRae.

However, the recovery of Mr McRae’s neutrophils was quite significant and reflected

the fact that his bone marrow was starting to produce normal numbers of good cells.

23.17. Mr McRae underwent the erroneous consolidation chemotherapy. There were two

rounds.

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23.18. Ultimately Mr McRae unfortunately relapsed. As seen earlier in these findings,

Dr Hotinski had noted that she explained the chemotherapy dosing error to the McRae

family and had noted ‘I am unsure if this contributed to the relapse, but of course this

is a possibility’280. Professor Gibson regarded that as a reasonably honest statement.

There had been non-protocol use of the drug during the consolidation chemotherapy

and therefore according to Professor Gibson ‘you would have to draw the assumption

that it could have contributed to a less than optimum response’281. However, he said

that extrapolating the population-based data to the individual was incredibly difficult.

Thus what Dr Hotinski wrote was probably not an unreasonable way of examining the

matter, so said Professor Gibson. Professor Gibson opined that Mr McRae’s period of

remission fell into the median for his age group and, while recognising that the

treatment was not in accordance with the protocol, it also had to be recognised that there

is significant variability around remission figures and for that reason it was impossible

to actually say in an individual case that the remission period was less than expected or

more than expected. Professor Gibson said that Mr McRae’s survival period was

reasonably within the realm of expectation and said that he did not believe that it could

be reflected back to the protocol deviations282. Specifically, when asked whether he

was able to link Mr McRae’s ultimate relapse and death with the non-protocol doses of

cytarabine in the two consolidation rounds, he said:

'Not absolutely, no.' 283

23.19. Professor Gibson was asked by me whether in the case of Mr McRae he discounted the

possibility that the incorrect frequency of dosage in his consolidation therapy

compromised his treatment. Professor Gibson said that he did not discount that

possibility284.

23.20. I now turn to Professor Gibson’s analysis of Mrs Pinxteren’s situation. Mrs Pinxteren

had been significantly older than the other patients in this cohort. Professor Gibson

noted at least two identifiable risk factors that would predict for a poor outcome

following chemotherapy, namely her advanced age and her pre-existing medical

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comorbidities. In addition, there was the not unreasonable prospect that Mrs Pinxteren

had pre-existing myelodysplasia.

23.21. Mrs Pinxteren was FLT3-ITD negative and was NPM1 positive, favourable factors.

23.22. In the event, Mrs Pinxteren only underwent one round of consolidation therapy. This

single round was delivered in accordance with the erroneous protocol. She did not

undergo a second consolidation round due to her relapse. In addition, her second

consolidation round had in any event been delayed due to an incomplete recovery from

the first.

23.23. Professor Gibson stated that there would be many places, particularly in North America,

where Mrs Pinxteren would not have been offered treatment. The data from a North

American study would suggest that for a person in her age demographic the median

survival with treatment was about three months. This was only one month in excess of

the median survival period without treatment. Professor Gibson made the assumption

that her treating team probably believed that induction and consolidation therapy was

the best strategy to maximise quality and quantity of life, a strategy that he

acknowledged was not inappropriate in her case, and indeed it had given rise to a

favourable result. So he expressed the overall opinion that Mrs Pinxteren’s outcome

was disappointing.

23.24. Professor Gibson believed that the result of Mrs Pinxteren’s induction therapy was a

good result. Although there were persisting myelodysplasia changes, her cytogenetic

abnormality had apparently disappeared. He said that hers was as good a result as one

could have expected in a person of her age. As to the overall outcome, Professor Gibson

opined that given the positive results from her induction therapy, it was a disappointing

outcome for her to have relapsed so quickly after consolidation. He said:

'My opinion is that’s actually quite a disappointing result for this lady, given her good

response to the initial chemotherapy.'

Although he could not absolutely guarantee it, Professor Gibson suggested that he

would have expected Mrs Pinxteren to have remained in remission for longer. That

said, the outcome was within the realms of possibility. Such a short remission duration

was at the lower end of what people report in the literature. Asked therefore whether it

was a possibility that the incorrect doses of cytarabine in her one consolidation cycle

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may have contributed to the disappointing early relapse, Professor Gibson said that it

was a possibility, just as the converse was true. As to the suggestion made to her before

her death that the underdosing in her case did not matter much, Professor Gibson

regarded that as an unprovable statement one way or the other285.

23.25. In his written report Professor Gibson reported that Mrs Pinxteren’s remission duration

and survival, whilst at the lower end of parameters reported for similar patients, would

still fall within those reported in the medical literature. As such he did not believe that

it was possible to definitively state that the cytarabine underdosing contributed to a ‘less

than expected’ outcome. However, Professor Gibson also expressed the opinion that

the overall period of survival, while perhaps not being inconsistent with publicised

literature, was at the lower end of what one would have hoped for having regard to her

very good remission after induction.

23.26. Significantly, Professor Gibson stated that the duration of Mrs Pinxteren’s survival

could be explained by natural variations in responses to treatment, but having regard to

the lower end of expectation, particularly in somebody who had a remission with the

first treatment, the confounding variable would be the protocol deviation and that this

was a possible explanation for her outcome.

23.27. Professor Gibson provided the Court with an analysis of Mrs Bairnsfather’s treatment

and outcome. He described the prognostic characteristics of her disease.

Mrs Bairnsfather was in the elderly patient category although she did not have any

comorbidities that were relevant. However, underlying myelodysplasia had been

identified as being likely to have pre-existed the diagnosis of AML and that this was a

poor predictor for outcome. Mrs Bairnsfather also had an adverse cytogenetic factor

which in her case was monosomy 7. This is an abnormality generally recognised as an

unfavourable prognostic circumstance. In addition, Mrs Bairnsfather was noted to have

leukaemia in her skin which is another well recognised adverse prognostic factor.

There was also possible central nervous system involvement in her disease as well.

23.28. Mrs Bairnsfather underwent induction chemotherapy and attained complete remission

which included morphological, cytogenic and flow cytometry remission286.

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23.29. In the event Mrs Bairnsfather only underwent one round of consolidation

chemotherapy. The second cycle was in the first instance delayed because her bone

marrow had not recovered to an acceptable level. Ultimately Mrs Bairnsfather did not

undergo a second cycle of consolidation chemotherapy. Instead a different regime of

azacitidine therapy was put in place. The one round of consolidation therapy that

Mrs Bairnsfather underwent was the erroneous therapy.

23.30. At one point in her treatment it was thought that Mrs Bairnsfather may have relapsed,

but a bone marrow biopsy in February 2015 suggested that there was no evidence of

relapsed leukaemia.

23.31. In September 2016 Mrs Bairnsfather underwent another bone marrow biopsy and the

conclusion on this occasion was that her AML had returned with multilineage dysplasia.

The abnormal clone had reappeared, that is the CD7 abnormality which was the original

adverse marker in her case.

23.32. Following her relapse Mrs Bairnsfather underwent other treatment including a

re-induction regime that was unsuccessful. In his report regarding Mrs Bairnsfather,

Professor Gibson states that Mrs Bairnsfather’s remission duration and overall survival

duration was consistent with the ranges reported in the medical literature, especially

when one considers the pre-therapy characteristics that she had including the adverse

prognostic features. In fact, Professor Gibson states in his report that

Mrs Bairnsfather’s reversion to myelodysplasia during her recovery from the first and

only consolidation therapy round may be considered at the lower end of expectation.

However, that scenario is well recognised. As well, the patient’s overall survival period

was perhaps better than expected. In his oral evidence Professor Gibson stated that

given Mrs Bairnsfather’s adverse prognostic features at diagnosis, she probably

survived as long as one would have expected under those circumstances. Asked as to

whether Mrs Bairnsfather’s relapse could be linked to the one round of underdosing, he

said it was possible but not absolutely provable in her specific case because the

remission duration and overall survival fell within what is reported in the literature287.

23.33. Professor Gibson also dealt with Mr Knox’s circumstances. He produced an individual

report in relation to Mr Knox288. Mr Knox was younger than the four deceased

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individuals, but was 65 and not far from his 66th birthday. Professor Gibson referred to

Mr Knox’s characteristics as involving no significant comorbidities He had an ECOG

of 0 which is as good as one can get, a normal Karyotype, no evidence of pre-existing

myelodysplasia and the presence of the NPM1 mutation. All of these factors were

indicators of a better prognosis than otherwise. Mr Knox also had FLT3-ITD negativity

which in combination with the NPM1 mutation is a favourable factor. Professor Gibson

said ‘this would be a better result than others we have seen’, referring of course to the

four patients the subject of this inquest. Professor Gibson placed Mr Knox in the de

novo AML category and that the only adverse circumstance in Mr Knox’s pre-treatment

variables was his age. All this put him into the group that would be expected to have a

better outcome than average.

23.34. Mr Knox achieved a complete morphological remission following induction

chemotherapy. As well, the marker that had been used to monitor his leukaemic clone

had reverted to normal. Thus his result was essentially as good as one could have hoped

for. Professor Gibson was asked as to what could have been said by his doctors to

Mr Knox about his prognosis at that point. Professor Gibson answered as follows:

'So I think one could now be more confident in leaning towards a better-than-average

outcome. We would recommend at least two courses of consolidation treatment. There

would be perhaps a one or 2% chance of mortality during those treatments, but the payoff

for that is a prolonged remission and the potential for cure; albeit that would be, the cure

would be the less likely outcome, given his age. But certainly one would expect a

reasonably long remission.' 289

23.35. Mr Knox underwent two rounds of consolidation therapy, both administered pursuant

to the erroneous protocol. In the light of the revelation that Mr Knox had undergone

the flawed consolidation chemotherapy he underwent a catch-up round using the correct

dosing. However, the third consolidation round was administered without idarubicin.

Professor Gibson stated that the third round was not an unreasonable thing to

administer, but as to its utility he said that this was ‘an evidence free zone’290. However,

he regarded the catch-up round as something that was ‘still less than what is considered

to be optimal’291. In this context he observed that although it meant that Mr Knox had

the total dose of cytarabine that he should have had, it ignored the question of dose

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intensity and the time over which it was given. In his case the dose intensity would

have been less.

23.36. Ultimately Mr Knox relapsed in December 2016 which was a little over two years after

his original diagnosis. Asked as to whether that was a period that would be less than

one would expect for someone in Mr Knox’s condition, Professor Gibson said:

'So it is within the realms of possibility but it would be disappointingly less than one would

expect but these things happen sometimes.' 292

In his report Professor Gibson stated that although Mr Knox’s remission duration fell

within the ranges reported in the literature, his cytogenetic/molecular profile at

diagnosis had suggested that he fell within a good risk group for his age and that his

outcome could perhaps be statistically predicted to be above the median. In his report

he also stated that based upon the fact that twice daily intermediate dose cytarabine is

believed to be the optimal therapy for AML consolidation, it would be possible to

postulate that Mr Knox’s duration of remission was less than expected. In his oral

evidence Professor Gibson put it in another way. He stated that if Mr Knox had been

administered the correct protocol consolidation his outcome would clearly be a

disappointment but not impossible. However, in the context of the sub protocol therapy

that he did receive it would be disappointing result but maybe a little bit more expected.

I took Professor Gibson to mean that the disappointing length of remission, or at least

a length of remission that was less than what may have been expected, is explicable on

the basis of the incorrect chemotherapy.

23.37. Professor Gibson stated as follows:

'I think of the cases that I have reviewed, this is probably the most clear-cut one where the

outcome was less than one might have reasonably expected.' 293

23.38. However, Professor Gibson acknowledged that he agreed with Professor Boddy that it

was possible that the first and second cycles of erroneous consolidation therapy

contributed to or brought about Mr Knox’s relapse, but said that this was ‘not

provable’294.

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23.39. When Professor Gibson gave his evidence he had had the benefit of examining a report

from another expert, Dr Vaughan. I deal with Dr Vaughan’s opinions below. In

Dr Vaughan’s opinion, as expressed in his report, in Mr Knox’s case the reduced dosage

of cytarabine in the consolidation cycle was not fully compensated by the third so called

catch-up cycle and as a result there had been some reduction in Mr Knox’s prospects

of long term disease control or cure. Professor Gibson agreed that the third or catch-up

consolidation cycle probably would not have fully compensated for the erroneous

cycles and reiterated his opinion that Mr Knox’s relapse was disappointingly shorter

than he would have expected. He said that he could not be as ‘absolutely dogmatic’ as

Dr Vaughan had been, but reiterated that of the five cases that he had examined

Mr Knox was the one most likely to have been affected by the underdosing295.

23.40. Regarding Mr Higham, Professor Gibson said that he would not be as confident as

Dr Vaughan who expressed the opinion in his report that Mr Higham’s remission

duration would have been longer with correct doses of consolidation chemotherapy.

23.41. Regarding Mr McRae, Professor Gibson said that he had no way of knowing whether

Dr Vaughan was correct when Dr Vaughan opined that there had been some reduction

in Mr McRae’s remission duration as a result of the consolidation underdosing296.

Professor Gibson was of the view that it is impossible to be certain or to make a

definitive statement in respect of Mr McRae and his remission duration.

23.42. Regarding Dr Vaughan’s opinion in respect of Mrs Bairnsfather to the effect that the

under-dose in her one round of consolidation chemotherapy probably did not materially

contribute to a poorer outcome in her case, Professor Gibson repeated that she had

experienced a reasonable prolongation of survival with azacitidine treatment which

meant that her overall outcome was well within expected limits297.

23.43. Regarding Mrs Pinxteren, Professor Gibson stated that in his opinion Dr Vaughan’s

view that with appropriate consolidation therapy Mrs Pinxteren’s disease may have had

a better outcome was possibly accurate but not provable.

23.44. In cross-examination Professor Gibson reiterated that all of the cases fell within the

range of expectation as far as the patients’ longevity was concerned298. He said that he

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could not say yes or no to the proposition that it was possible that the patients received

a dose for them that gave them full therapeutic benefit299.

23.45. One matter that Professor Gibson repeated in his cross-examination was that in his

opinion Mr Knox’s disappointing length of remission and unexpected duration of

remission did not inform in relation to whether or not the outcomes of the four patients

who died had any connection with the underdosing in their cases.

24. The evidence of Dr Stephen Vaughan

24.1. I have referred to Dr Vaughan in the preceding section. Dr Vaughan was the author of

a report that was commissioned by and provided to AHPRA. The report was in turn

furnished by AHPRA to this Court together with other material that was summonsed

by the Court. I assume that it was in Dr Vaughan’s capacity as an adverse event

investigator that he was commissioned by AHPRA to compile his report.

24.2. Dr Vaughan is a haematologist and medical oncologist. At one time in his career he

was the Director of Medical Oncology/Haematology at Epworth Health Care across its

four campuses. At the time he gave evidence he was in that role. Dr Vaughan is also

a Clinical Associate of Haematology at the Royal Melbourne Hospital, although he told

the Court that that was a comparatively inactive appointment. He told the Court that

for about six months of the year he works as a locum for other practitioners, both in

medical oncology and in haematology. The remainder of his time involves the

investigation of adverse events. He is notified of all adverse events within the areas for

which he has responsibility. He also told the Court that he had responsibility for

introducing computerised chemotherapy prescribing systems and in the course of that

task he conducted a number of interstate and overseas visits to examine computerised

chemotherapy prescribing. That involved prescribing for the disease of AML. He told

the Court that this also took into account prescribing for elderly patients suffering from

AML. The system that he devised is based on the eviQ system which is an Australia-

wide chemotherapy protocol system managed from Sydney. Most Australia cities use

that as their chemotherapy prescribing basis. I heard other evidence about the eviQ

system. The Queen Elizabeth Hospital has used that system.

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24.3. Dr Vaughan’s report300 was tendered to the Court and he gave oral evidence in the

inquest.

24.4. In his oral evidence Dr Vaughan testified in respect of a number of general matters

concerning the appropriate treatment for AML. Firstly, he repeated other evidence that

had been heard in the inquest to the effect that a person diagnosed with AML and who

remains untreated will probably die within two to three months. This of course means

that there is absolutely no doubt that cytarabine chemotherapy in both the young and

the elderly is effective. The fact that the four deceased and Mr Knox achieved complete

remission after induction chemotherapy is testament to that fact. Naturally, the focus

of Dr Vaughan’s evidence was the effect of consolidation chemotherapy and whether

in the individual cases, or indeed in general, strict adherence to accepted protocols could

have an adverse effect on length of remission and longevity. Another general point

made by Dr Vaughan which I unhesitatingly accept is that strict adherence to protocols

is absolutely essential. Throughout his evidence Dr Vaughan was highly critical of

suggestions, express or otherwise, that known and accepted protocols can be departed

from either in error or in a calculated fashion. Dr Vaughan summed up his attitude to

the adherence to protocol in the following way:

'Absolutely. I find treating acute myeloid leukaemia a scary business and I'm sure it's for

a practitioner and I'm sure it's equally scary for patients. You take patients and administer

a treatment which may, depending on age, have a 10% mortality. You wipe out their

normal bone marrow for two to three weeks and you have got to undertake to keep them

alive during that period. I find it no less scary now after doing it for 35 years than I did

initially. It's a dramatic intervention. It's justified because without the intervention as we

have previously discussed, the survival is quite short. When you do scary things you have

got to assure yourself you are doing - you are following the rules exactly and attention to

detail is really important.' 301

I was impressed by this observation. It is obvious from the evidence that I have heard

that the administration of consolidation chemotherapy in respect of a person who has

achieved complete remission, including the elderly, is a serious undertaking. In the

elderly it can result in significant and debilitating side effects by reason of the

treatment’s toxicity. On many occasions during the course of his evidence Dr Vaughan

made the point that if it was thought that consolidation chemotherapy is unlikely to be

efficacious in the elderly, or that there was no evidence that it had efficacy, then he

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would query why clinicians would nevertheless choose to administer it. This was a

question that in my view was really unanswerable other than by reference to the fact

that it is universally accepted in the haematology community that consolidation

chemotherapy should be administered to both the young and the elderly in order to

maximise the chances of a longer remission. As Dr Vaughan pointed out, there are two

broad objectives in the treatment of leukaemia, one being a cure for younger people and

the other being prolonged disease free survival in older people302. In either case

Dr Vaughan convincingly pointed out to the Court that meticulous attention to detail in

the treatment of patients is important to minimise toxicity and to maximise the chance

of the two favourable outcomes that he described. In this regard he referred to the

principle of consolidating a remission as soon as the normal bone marrow has recovered

in order to exploit the difference and the delay between the recovery of leukaemic cells

and normal cells. Dr Vaughan stated that if the purpose of the exercise is to attempt to

eliminate leukaemic cells, then one has to expose the leukaemic cell to the drug for as

long as possible consistent with acceptable toxicity.

24.5. Dr Vaughan explained to the Court what he regarded as the ‘trade off’ between the

maximisation of duration of drug exposure in order to overcome cell membrane

resistance against the avoidance of excessive toxicity303. He said that he was of the view

that one would receive reduced effectiveness and reduced toxicity if cytarabine in

consolidation was only administered once daily on alternate days. He stated that

effectiveness and toxicity ‘run in parallel to some degree’304. He stated that the anti-

leukaemic effect of cytarabine would be reduced with once daily administration over

alternate days. In accordance with the evidence that I heard as a whole, Dr Vaughan

said that he had never seen a once daily regime of administration on alternate days. He

said that such a regime does not adhere to the ‘trade off’ that he described earlier in his

evidence. In fact he stated that anyone with experience in the treatment of acute

leukaemia, be they a pharmacist or oncology nurse, should have been aware that the

protocol was not a widely used protocol in the consolidation treatment for AML305.

24.6. Dr Vaughan was naturally asked during the course of his evidence as to his views in

respect of the treatment of the elderly with consolidation therapy. Much of

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Mr Trim QC’s cross-examination on behalf of the doctors was directed towards this

issue. As to the literature that had utilised expressions such as there having been ‘no

established value of intensive consolidation therapy’, Dr Vaughan said that the fact that

there may be no evidence of the kind that may be obtained by way of a clinical trial

does not mean that there is no evidence supporting the use of, in this case, consolidation

therapy in the elderly. In this regard he asserted that clinical judgment and established

practice could constitute evidence. He said that one does not need a ‘double blind trial’

to know that a particular therapy has an efficacious effect. He said in respect of

consolidation therapy:

'So there are parts of medicine where the trials don't tell you what the answer is; you're

relying on principles, like, say, pharmacokinetics, you're relying on established practice,

and you're relying on clinical judgment.' 306

Indeed, Dr Vaughan said that if one was to rely only on the evidence from randomised

double blind crossover clinical trials, one would be ‘paralysed’ in practice307. In short,

he stated that there are other types of evidence that one uses in practice all of the time.

Dr Vaughan was making these points to counter the suggestion that because there have

been no trials in respect of the efficacy of consolidation therapy in the elderly, as distinct

from in the young, that does not mean that consolidation therapy in the elderly is of no

practical use or has no effective efficacy.

24.7. Indeed, Dr Vaughan was of the opinion that the age of the patient becomes less

important once a remission had been achieved because induction therapy is a very

strong test of the patient’s functional status. If one survives induction one is regarded

as being tough. Dr Vaughan said it was not appropriate to examine statistics in relation

to all elderly patients across the board because one has to look at the performance of

those patients who achieve remission as was the case with the four deceased and

Mr Knox. He said that ‘these people are survivors’308. Thus in his opinion in the elderly

risk factors such as age and comorbidities are substantially obviated by the fact that

these elderly patients were ‘not all-comers’ but were survivors who had entered

complete remission309.

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24.8. In cross-examination Dr Vaughan went further. He pointed out that evidence from

trials within the elderly where part of the experimentation was submitting patients to

only once daily administration on alternate days would ‘not get past the Ethics

Committee’310. Thus that evidence will never eventuate311. He reiterated that one’s

reasoning as far as efficacy of consolidation therapy in the elderly is concerned is based

upon the pharmacokinetics of the drug and the pharmacological principles underlying

it. He suggested that these principles do not change in the elderly.

24.9. Other general comments that Dr Vaughan made in cross-examination included that

although there was evidence that young people do better than the elderly, that doing

nothing in the elderly by way of consolidation is not an option312. As far as he was

aware in Australia all patients are given post-remission therapy. In fact he said he

would be extremely uncomfortable giving anybody between the ages of 60 and 70 no

post-remission treatment313.

24.10. In this regard Dr Vaughan made the valid observation that if it was thought that

consolidation therapy did not provide any benefit, the question would have to be posed

as to why the medical profession would expose patients to half dose chemotherapy with

all of the risks this would involve for the patient but with no benefit. If it was to be

seriously entertained that consolidation therapy had no benefit in the elderly, providing

half of that therapy would expose the patient to the all of risks without any of the

benefits314. I must say I was impressed with this point. It made much sense.

24.11. Dr Vaughan disagreed with Associate Professor Wei’s conclusion that, in the absence

of evidence, it cannot be established that there was any detriment to the outcome of the

patients who were subjected to the erroneous regime. He said ‘I don’t agree with

that’315.

24.12. Dr Vaughan in a general sense also disagreed with Professor Gibson’s approach to the

use of statistics in analysing remission durations. He said that in a cohort of four or

five patients it is an inappropriate method of viewing the matter. Median survival is

reference to the whole population, not those who have achieved remission who have a

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much better outcome. He said ‘it’s impossible statistically because four patients

statistically is just not enough to say anything’316.

24.13. Dr Vaughan also expressed a view in respect of the so-called catch up rounds and

suggested that they were delivered too late and that such an approach contained an

element of ‘winging it’317. On this topic he suggested that ‘consolidation delayed will

be less effective than consolidation given on time’318. He said that this observation was

in keeping with the general principle in leukaemia treatment that as soon as a patient

has recovered one does not delay further treatment. He said that it is believed that

delayed consolidation was less effective consolidation319.

24.14. Dr Vaughan also dealt with the five individual cases. Regarding Mrs Pinxteren he told

the Court that in his opinion the timing of her relapse was ‘in part’ related to the

underdosing of the consolidation having regard to the fact that in his view she relapsed

‘fairly quickly’320. He agreed with Professor Gibson’s observation that her short

remission duration was at the lower end of what people report in the literature321.

However, Dr Vaughan told the Court that the consideration of her case was difficult

because in her case Mrs Pinxteren was not able to undergo a second cycle of

consolidation chemotherapy because of her inability to recover from the first. It was a

significant possibility that her relapse could be explained by her inability to receive a

second cycle of consolidation chemotherapy322. On the whole, he said that for those

reasons the erroneous single consolidation round may not have ‘made much difference

to the leukaemic outcome’323. This evidence tended to support Dr Hiwase’s assertion

that for similar reasons the underdosing in Mrs Pinxteren’s case may not have had only

limited impact. In cross-examination regarding Mrs Pinxteren, Dr Vaughan said that

in a nutshell the underdosing impact could be described as ‘a little’324.

24.15. Concerning Mr McRae, although there was some slight controversy as to whether he

had achieved complete remission and that his remission status was difficult, on the

whole he believed that Mr McRae had achieved complete remission325. He opined that

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Mr McRae’s remission was shorter than what otherwise would have been the case and

that the main reason to explain that was the underdosing326. He said that in his opinion

the erroneous consolidation cytarabine impacted on his remission for the most part

because on pharmacokinetic principles one would think that incorrect doses would be

less likely to be effective327. As to Professor Gibson’s opinion regarding Mr McRae,

he again stated that he tended to disagree with Professor Gibson’s approach to statistical

matters and his reference to median survival rates. He said that of the patients who

achieve complete remission the survival would be significantly longer than ten months

because early deaths pull down the average328. In cross-examination Dr Vaughan neatly

summed Mr McRae’s situation up by suggesting that in his case the underdosing made

the task of keeping him alive a bit longer less likely to be successful329. That said he

did not believe that Mr McRae would have been cured.

24.16. Regarding Mr Higham, Dr Vaughan acknowledged the difficulties posed to

Mr Higham by his comorbidities, his myelodysplasia and the FLT3 mutation. That said

his remission was a good result, especially after one induction330. He opined that the

catch up round was too late331, but may have had some benefit332.

24.17. It was in the context of discussing Mr Higham’s case that Dr Vaughan dealt with some

of the matters as expressed by clinicians either to patients or to their general

practitioners. For example, in respect of Dr Beligaswatte’s assertion about a debate

surrounding dosage, Dr Vaughan said there is no debate about the frequency at which

cytarabine should be given and that was twice daily. The only debate concerned the

issue as to whether 3000mg should be given or whether 1000mg should be given and

that had been largely resolved in that 1000mg was considered to be as good as

3000mg333. So, he opined that the treatment given to these patients was not standard

treatment.

24.18. When asked as to whether in his opinion the chemotherapy underdosing impacted on

the duration of Mr Higham’s remission he said ‘I think so, yes’334. He said it was a more

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difficult question to determine whether it had any effect on his longevity335.

Dr Vaughan summed up his opinion regarding Mr Higham in this fashion:

'So I'm saying probably he would have got a longer remission. Whether or not he would

have had an improved survival, got out to the end of the curve where it's flat, it's hard to

say.' 336

24.19. When asked if he could quantify how much longer Mr Higham’s remission may have

been but for the error, Dr Vaughan said that the short answer to that was no, but that

one would hope that he may have achieved another 6 to 12 months of remission337.

24.20. Regarding Mrs Bairnsfather, Dr Vaughan acknowledged that her monosomy 7 status

was a major difficulty for her. There was also the matter of her not undergoing a second

cycle of consolidation therapy due to her slow recovery. That said he considered that

her remission or ‘progression-free survival’ would have been increased if she had

received the intended dose of consolidation. He said ‘she would have done better in

terms of how long the leukaemia stayed away’338. He acknowledged, however, that

Mrs Bairnsfather would have relapsed ultimately but the correct consolidation would

have pushed the relapse ‘out a bit, maybe by several months, up to six months as a

guess’339. However, in cross-examination Dr Vaughan suggested that he did not think

that the underdosing in her one round of consolidation had a major effect and he did

not think that it shortened her lifespan340.

24.21. Regarding Mr Knox, Dr Vaughan like the other experts placed Mr Knox in a better

prognostic category. He regarded Mr Knox as not being in the elderly category, albeit

not by much. He was a de novo AML sufferer. He opined that Mr Knox’s remission

would have been longer if he had received the correct consolidation therapy and

suggested perhaps that he may have even been cured341. The following passage of

evidence was given:

'Q. As I understand he was in remission for 25 months, so two years and a month.

A. Yes, so he's in remission for a long time and I would have thought with adequate

consolidation that period would have been longer and/or maybe not relapsed.

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Q. So do you think that Mr Knox, given what you know about his diagnosis of AML

and his de novo status, would have been a candidate for cure had everything been in

accordance with the correct protocols.

A. I think that's a possibility, but as I've previously discussed two objectives in AML,

particularly - and I'm not sure I'm prepared to regard him as elderly, particularly in

his presence, but two objectives, prolonging disease free survival, and cure. The

worse the prognosis the more the emphasis is on prolonging disease free survival, the

better the prognostic factors the emphasis is more on trying to cure them with

conventional treatment and using transplant as a sort of backup if they relapse.' 342

24.22. Dr Vaughan regarded Mr Knox’s age as of limited significance343. He pointed out that

Mr Knox survived intensive treatment so the prognostic influence of age did not feature

much in his prognostication.

24.23. Dr Vaughan was critical of the timing of Mr Knox’s catch up round calling it too late

in its delivery.

24.24. Dr Vaughan agreed with Professor Gibson that of all the cases that had been reviewed,

that Mr Knox’s was probably the most clear cut case where the outcome was less than

one might have reasonably expected344.

25. The literature

25.1. A great deal of medical literature was tendered to the inquest and commented upon by

the expert witnesses. Some of the specific scientific articles tendered contained

references to protocols in respect of consolidation therapy for AML. The literature also

dealt with the issue of the efficacy of cytarabine consolidation chemotherapy in the

elderly. Again, the material differed in terms of what was meant by ‘the elderly’ insofar

as some publications suggested that it encompassed persons over the age of 60 as

distinct from persons over the age of 65.

25.2. Not one article that was tendered to the Court suggested that once daily administration

of cytarabine on alternate days was a legitimate consolidation therapy protocol in

respect of any age group. Nor did the literature suggest that such a regime of

administration would have the same efficacy as twice daily administration. As to the

question of efficacy in the elderly in general, no article suggested in terms that

consolidation therapy in the elderly in any form was a pointless therapy. No article, for

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instance, suggested that consolidation chemotherapy in the elderly should no longer be

offered. Indeed, none of the expert witnesses suggested this. Nor did any of the

clinicians called during the course of this inquest, that is to say none of the clinicians

who were involved in the promulgation of the RAH or FMC protocols or had been

involved in the treatment of the patients in question, suggested that consolidation

therapy was a pointless exercise generally or in any particular case or in the elderly.

That said, a recurring theme in a number of articles was to the effect that while

consolidation therapy had established benefits in younger patients as demonstrated by

the results of clinical trials and studies, there was no evidence from a similar source that

positively demonstrated a benefit in the respect of elderly patients. To my mind that is

a different thing from saying that because there is no trial evidence that consolidation

in the elderly is beneficial it must follow that there is no such benefit.

25.3. I refer to a number of the articles. Some of the articles pre-date the events with which

this inquest is concerned and some of them post-date those events.

25.4. In an article entitled ‘Treatment of Older Patients with Acute Myeloid Leukaemia

(AML): A Canadian Consensus’ published online 5 May 2013 in the American Journal

of Blood Research, it is asserted that patients over 60 years of age comprise a majority

of those diagnosed with AML. This assertion is supported in other literature that I need

not refer to. The article suggests within its Abstract that treatment approaches in that

cohort are variable with many uncertainties and controversies. It points out that patients

over 60 have different biological and clinical features compared to younger patients in

that they are more likely to display cytogenetic abnormalities and have a history of

antecedent haematological disorder and comorbidities that can limit treatment options

and lead to reduced dose intensity. One matter of particular relevance within the article

is the assertion that patients with favourable cytogenetic profile or normal karyotype

with a favourable molecular profile (for example NPM1 mutated – FLT3-ITD negative)

should be offered induction chemotherapy with ‘curative intent’. This is the profile

that Mr Knox had at the time of diagnosis. The article points out that most older patients

receive consolidation therapy, ‘although the magnitude of its benefit in older patients

remains unclear’ 345.

25.5. This article states that while the optimal number of post remission (consolidation)

cycles remains unclear, although one cycle may be sufficient, there is evidence in

345 Exhibit C36, Tab 8, page 7

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younger patients based on retrospective data that consolidation using repetitive cycles

of HiDAC (3g/m2) is associated with improved disease free survival and overall

survival in certain patients.

'We therefore believe it is reasonable to utilize this strategy as well in older fit patients

with these abnormalities. However, as HiDAC poses a higher risk of cerebellar toxicity in

patients over age 60, such patients should receive a reduced HiDAC dosing schedule, e.g.

1-1.5g/m2 every 12 hours on treatment days 1, 3 and 5.' 346

Save for the addition of idarubicin, the appropriate schedule as described in the above

passage is precisely the cytarabine dosage schedule that was intended to be included in

the RAH protocol, the error of course being the omission to specify administration

every 12 hours (twice daily). The article makes a recommendation that in patients who

achieve complete remission and who are medically fit for chemotherapy, therapy

should be administered for those patients. This recommendation appears to apply to

both younger and older patients. The article also makes a recommendation that

conventional dose consolidation therapy is adequate in patients with adverse risk

cytogenetics347.

25.6. An article in the Blood Journal promulgated by the American Society of Hematology,

Stone and others, 2001 and entitled ‘Postremission therapy in older patients with de

novo acute myeloid leukemia: a randomized trial comparing mitoxantrone and

intermediate-dose cytarabine with standard-dose cytarabine’348 contains certain

observations in relation to the efficacy of post remission therapy in the elderly. The

reference to de novo AML is a reference to patients who have no myelodysplasia

evident at the time of diagnosis.

25.7. This article states that the trials undertaken were unable to demonstrate an improvement

in disease free or overall survival time in older patients randomised to an intensive post

remission chemotherapy regimen. As well, the results suggested that acute leukaemias

in older patients are intrinsically resistant. The article states:

'Based on our results, it is reasonable to question the value of post remission therapy in

older patients with AML. Given the certain relapse associated with no post remission

therapy in mainly younger patients, most clinicians have been unwilling to conduct further

clinical trials in older patients that include a no-treatment arm.' 349

346 Exhibit C36, Tab 8, page 8 347 Exhibit C36, Tab 8, page 9 348 Exhibit C36, Tab 10 349 Exhibit C36, Tab 10, page 552

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This of course is an acknowledgement that in respect of older patients it would be

inappropriate to experiment with clinical trials in which consolidation therapy was not

administered. However, the article does indicate that within this age cohort, which I

understand from the article to be the 60 to 69 age group, a number of patients

experienced prolonged disease free survival and that favourable outcomes were only

associated with post remission chemotherapy. The article does not suggest that

consolidation chemotherapy in the elderly should be discontinued.

25.8. An article is contained in Leukemia Research 37 (2013), Hassaneine and others, entitled

‘High-dose cytarabine-based consolidation shows superior results for older AML

patients with intermediate risk cytogenetics in first complete remission’350. The

Abstract to this article refers to the results of a study in patients greater than 60 years

of age which indicated that a high dose cytarabine consolidation regimen produced

superior outcomes in AML patients over 60 years of age with intermediate risk

cytogenetics. The article also refers to what the authors describe as a ‘dogma’351 that

intensification of post remission therapy is of no benefit in most older AML patients.

The article asserts that the study conducted, which is the basis of the article, calls into

question that dogma and indicates that the results suggest that medically fit patients

aged 60 and over with intermediate risk cytogenetics should receive high dose

cytarabine consolidation therapy.

25.9. A Haematologica article by Sekeres entitled ‘Treatment of older adults with acute

myeloid leukemia: State of the art and current perspective’ December 2008, asserts that

no randomised study has shown that in older adults some amount of post remission

therapy provided a survival advantage over no post remission therapy. That there has

been no such study appears to be universally accepted.

25.10. An article in the New England Journal of Medicine, Dohner and others, entitled ‘Acute

myeloid leukemia’ 2015352, suggests that patients with favourable ELN genetic risk and

no co-existing conditions should receive intermediate dose cytarabine every 12 hours

on days 1-3, which is a recognised consolidation regimen, but for patients with

unfavourable genetic risk, co-existing conditions or both, that no value of intensive

consolidation therapy has been established.

350 Exhibit C36, Tab 11 351 Exhibit C36, Tab 11, page 559 352 Exhibit C19l

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25.11. Tendered to the Court was a publication entitled ‘Leukemia’ published in 2005 that

contains what appears to be a keynote address by J M Rowe of the Department of

Hematology and Bone Marrow Transplantation, RAMBAM Medical Center and

Technion, Israel Institute of Technology. The keynote address is entitled ‘Is there a

role for post remission therapy in older adults with acute myelogenous leukemia

(AML)?’. The publication asserts that as of 2005 there had never been a formal study

addressing the question encapsulated in the title of the keynote address in a manner

similar to a study that had taken place in younger adults. I understand from the literature

as a whole that such a study has not since been undertaken. The article further asserts

that the need for post remission therapy has been unequivocally established for younger

adults, but that the issue is still open for older adults as it has never been unequivocally

demonstrated that offering any form of post remission therapy affects ultimate long

term survival in that cohort. The article postulates two reasons for this, the first being

that older patients tend to have biological features that predict for a poor outcome,

including intermediate and unfavourable cytogenetics, myelodysplasia and leukaemic

cell multi-drug resistance. The article also asserts that the problem with older patients

is not one of achieving an initial response. Rather, it is the fact that no matter what one

does, very few remain in remission and very few survive. It will be remembered of

course that in all of these cases remission was achieved after induction chemotherapy.

The article also asserts that there was little evidence to justify administration of

maximally tolerated consolidation.

25.12. I now turn to literature that was published at around the time of, or subsequent to, the

events with which this inquest is concerned. Firstly, I refer to an article in ANN

Hematol entitled ‘Big data analysis of treatment and patterns and outcomes among

elderly acute myeloid leukemia patients in the United States’353 by Medeiros and others,

published online on 20 March 2015. This article points out that in the USA the median

age at diagnosis of AML is 66 years and that the incidence of the disease increases with

age, with over half of the patients diagnosed at 65 or older. The article asserts that

fewer than half of elderly patients receive anti-leukaemic therapy, that their outcomes

remain dismal and that even after successful induction of remission, disease relapse is

inevitable in the majority of cases despite additional post remission therapy. However,

in its Conclusion, the article states that age alone should not deter the use of guideline

353 Exhibit C36, Tab 4

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recommended therapies in AML. It then goes on to suggest that anti-leukaemic

regimens should be strongly considered in the majority of older patients, but that even

with treatment, outcomes remain dismal. This observation of course is based upon the

obvious success rate of induction chemotherapy and is not necessarily a reflection of

the efficacy of consolidation chemotherapy. In short, the article is somewhat silent

about the efficacy or value of consolidation chemotherapy as distinct from induction

chemotherapy.

25.13. An article published in the Journal of Clinical Oncology, volume 33, dated 1 April 2015

by Ostronoff and others, is entitled ‘Prognostic significance of NPM1 mutations in the

absence of FLT3-internal tandem duplication in older patients with acute myeloid

leukemia: a SWOG and UK National Cancer Research Institute/Medical Research

Council report’354. The conclusion expressed within this publication is that NPM1-

positive/FLT3-ITD-negative genotype remains a relatively favourable prognostic

factor for patients with AML age 55 to 65 years but not in those aged greater than 65

years. The body of the article also suggests that as far as the age bracket of greater than

65 years is concerned that the favourable genotype should not be considered a

favourable risk factor ‘at least not for those treated with standard induction followed

by conventional consolidation’. On the other hand, a study reported in 2013 by Daver

and others published in Clinical Lymphoma Myeloma Leukemia suggested that patients

of 65 years or older who were NPM1 mutated and FLT3 wild type had significantly

improved survival with cytotoxic chemotherapy. This article does not specifically

discuss the benefits of consolidation chemotherapy.

25.14. Mr Knox was NPM1 mutated and was FLT3 wild type and no evidence of

myelodysplasia.

25.15. I now refer to two articles that were published towards the end of 2016. The first article

is published in the American Journal of Hematology in December 2016 entitled

‘Karyotype Plus NPM1 mutation status defines a group of elderly patients with AML

(≥60 Years) who benefit from intensive post-induction consolidation therapy’355. The

article is by Sperr and others. This paper was based on an analysis of 192 consecutive

patients who were de novo AML and aged 60 years or older who were treated with

intensive chemotherapy. De novo AML is AML that is not accompanied by

354 Exhibit C36, Tab 12 355 Exhibit C36, Tab 16

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myelodysplasia so its application does not have universal significance in terms of the

patients under discussion in this inquest. However, the article does express a number

of conclusions as follows:

• In the elderly who are eligible for intensive chemotherapy, the same protocols as

applied in younger adults with AML are administered.

• Compared to younger patients the outcome is poor for the elderly because of co-

existing unrelated disorders and/or adverse molecular and cytogenetic parameters.

• When treated with post remission therapy, long term survival and continuous

complete remission may also be achieved in elderly persons.

• Overall the survival in AML patients receiving intensive chemotherapy and full

length consolidation is superior compared to those receiving palliative treatment.

• In general, intensive post remission treatment with repetitive cycles of

chemotherapy is considered essential to maintain continuous complete remission in

patients with AML.

• It has been previously shown that a consolidation protocol employing cytarabine at

2 x 1g/m2 on days 1, 3 and 5 for up to four cycles in patients aged 60 and above is

an effective and well tolerated consolidation therapy.

• In the elderly with complete haematologic remission no one generally accepted

consolidation strategy is available.

• Most patients with cytogenetically normal AML without the NPM1 mutation did

not achieve long term continuous complete remission despite intensive

consolidation.

25.16. It will be seen from this article that the consolidation therapy that is contemplated for

the elderly, plus idarubicin, consists of the very consolidation therapy that was intended

to be administered to the patients who are the subject of this inquest. The other matter

that arises from the article is that although it states that there is no generally accepted

consolidation strategy available, it does not support the proposition that existing

consolidation therapy protocols can legitimately be departed from in a manner that is

reflected by the erroneous protocol utilised in this case. On the contrary, it advocates

the use of the consolidation therapy protocol that should have been utilised in the case

of the four deceased persons and Mr Knox.

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25.17. The second recent article that I shall refer to is an article in the Blood Journal originally

published online on 28 November 2016 authored by Dohner and others including

Associate Professor Andrew Wei to whom I have referred and who gave oral evidence

in this inquest. The article is entitled ‘Diagnosis and management of AML in adults:

2017 ELN recommendations from an international expert panel’356. I have referred to

this article earlier. This article deals with many aspects of AML treatment including

consolidation chemotherapy in the elderly. The article states:

'Intensified postremission chemotherapy in high-risk patients, especially older patients is

without clear benefit.'

A table that sets out selected conventional care regimens for patients with AML357

recommends for favourable risk genetics patients greater than 60/65 years of age a

number of cytarabine consolidation regimens that are administered on a daily basis,

either once a day or every 12 hours. In respect of intermediate/adverse risk genetics

patients it asserts there is ‘no established value of intensive consolidation therapy’ and

then recommends consideration be given to other treatments. This statement was seized

upon by Mr Trim QC on behalf of the doctors as suggesting that there is in fact no value

in intensive consolidation therapy in elderly persons with intermediate or adverse risk

genetics. However, in reality all the article is asserting is that in the elderly there is no

conclusive evidence as to the value of the therapy. It does not assert that it has no value

at all or that it has been conclusively established that it has no value. Interestingly, the

table also recommends intensive induction chemotherapy for all ages with the footnote

that older patients greater than 65 years of age and patients with adverse genetics are

less likely to respond to conventional induction therapy and might receive alternative

therapy. It is of note that all of the patients the subject of this inquest, despite their

respective ages, broke this mould as they did respond to conventional induction therapy

insofar as they all entered complete remission following induction.

25.18. The National Comprehensive Cancer Network (NCCN) guidelines were tendered to the

inquest. This is an American guideline for the administration of chemotherapy for

AML. Two versions of this guideline were tendered to the inquest. The first is version

2.2014 ostensibly promulgated on 28 March 2014358. The other version is 3.2017

356 Exhibit C36, Tab 5 357 Table 8 358 Exhibit C19ma

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evidently promulgated on 6 June 2017359. The 2014 version for age 60 and above in

respect of AML post remission therapy where there has been a complete response to

induction therapy sets out a number of alternative therapies that include two cytarabine

regimens with either idarubicin or daunorubicin. Although neither of these two

regimens reflect the intended regimen in this case, both of them involve the daily

administration of cytarabine. The footnotes to this guideline refer to the ‘excellent

outcome’ that had been reported for outpatient consolidation providing another option

for elderly patients.

25.19. The 2017 NCCN version is more detailed and this time includes the intended regimen

that should have been administered in this case but with midostaurin instead of

idarubicin. It does not set out any regimen that would involve once daily administration

on alternate days, that is to say the erroneous protocol. The regimen set out in this

document that would conform to the intended regimen in this case is said to be

appropriate for FLT3 mutation positive AML, an unfavourable prognostic

circumstance. Certainly, the guideline contains nothing to suggest that consolidation

therapy with cytarabine in the case of persons of or above the age of 60 is inappropriate

or should not be offered. The notes to the document repeat reference to the ‘excellent

outcome’ that was reported in the notes within the previous version of the document.

25.20. A number of other published articles were tendered through Dr Ashanka Beligaswatte

during the course of his evidence. I refer to one of those publications. This is an article

within the Journal of Clinical Oncology, Volume 28, Number 4, February 1 2010

entitled ‘Favorable prognostic impact of NPM1 mutations in older patients with

cytogenetically normal de novo acute myeloid leukemia and associated gene – and

MicroRNA – expression signatures: a cancer and leukemia group B study by Becker

and others’. The article concerns a study involving 148 adults of or greater than the

age of 60 years of age with de novo cytogenetically normal AML. This of course would

include Mr Knox. The conclusion expressed in the article is that NPM1 mutations have

favourable prognostic impact in older patients with cytogenetically normal AML,

especially those aged of or greater than 70 years. The article makes it reasonably plain

that in contrast to patients aged 60 to 69 years, those aged of or greater than 70 years

with NPM1 mutations had a longer disease free survival. The article also makes a

universally accepted observation that AML in older patients is generally associated with

359 Exhibit C19m

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poor prognosis, the worse outcome of older patients being attributed to such factors as

preceding haematologic disorders, over representation of high risk cytogenetics or other

adverse prognostic clinical characteristics. However, the article suggests that the

finding from the study was that in older cytogenetically normal AML patients, NPM1

mutations had a favourable prognostic impact independent of other molecular and

clinical prognosticators. As well, although the favourable outcome associated with

NPM1 mutations was even more pronounced in the oldest sub-group of or greater than

70 years, older age alone should not exclude patients from more intensive

chemotherapy. The article also suggests that the study demonstrated that NPM1

mutations in older patients with CN-AML independently predicted better disease free

survival and overall survival.

25.21. The overall conclusion from the article is as follows:

'In conclusion, we show that NPM1 mutations constitute a strong, independent prognostic

factor for favorable treatment response and survival in older patients with CN-AML

treated with intensive chemotherapy. The gene - and MicroRNA - expression signatures

of older NPM1 MUT CN-AML patients appear similar to those in younger patients,

thereby suggesting that CN-AML with NPM1 mutations may be a single entity in all age

groups.' 360

25.22. Conclusions from the literature

25.23. In my opinion the literature establishes the following propositions:

• Whereas in a younger cohort of patients consolidation chemotherapy for AML has

been demonstrated as providing a benefit in terms of longer remission and overall

survival, and that this has been demonstrated by clinical trials, there is no evidence

from a similar source that would support that notion in respect of elderly patients.

For these purposes elderly patients can be regarded as persons of or above the age

of 60 years.

• However, this does not of itself mean that consolidation chemotherapy in elderly

patients suffering from AML has no benefit.

• There are a number of reasons, however, why in the elderly patient with

unfavourable cytogenetic, molecular and other prognostic factors, that

consolidation chemotherapy for AML may not be as effective as it will be in a

360 Exhibit C47e, page 75, article 9

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younger patient. However, this is not to say that consolidation chemotherapy for

AML in the elderly patient will be of no therapeutic benefit.

• There are a number of recognised and standard consolidation chemotherapy

regimens for AML in respect of the elderly. One of those regimens involves the

twice daily administration of cytarabine on alternate days 1, 3 and 5.

• There is no evidence in the literature to support the notion that single daily dosing

of cytarabine on alternate days 1, 3 and 5 is a standard regimen of consolidation

chemotherapy for AML.

• The literature generally does not discourage but in fact supports the notion that

consolidation chemotherapy should still continue to be administered to the elderly

in cases where remission has been achieved after induction chemotherapy.

26. Conclusions regarding causation

26.1. As indicated, I have accepted and preferred the evidence of Professor Boddy in relation

to the pharmacological and pharmacokinetic principles associated with the

chemotherapy drug cytarabine.

26.2. I have found that cytarabine is a schedule-dependent drug and that the recommended

frequency of administration is an important component in its efficacy. In particular, the

frequency of its administration is an important factor in eliminating leukaemic cells at

the time that they are within their S-phase. I find that administration on alternate days

where there is only one dose administration per day is likely to mean that the optimum

number of leukaemic cells in the S-phase will not be targeted and therefore will be less

likely to be eliminated. I find that once a day administration on alternate days is in

general likely to be less efficacious than twice daily administration on alternate days. I

find that the reduction in frequency will generally dictate a less favourable treatment

outcome and that this may be manifested in either a curtailed duration of remission

and/or duration of overall survival.

26.3. I find that as at the time with which this inquest is concerned, there were a number of

accepted standard consolidation therapies in respect of the disease AML. One such

standard therapy involved the twice daily administration of cytarabine on alternate days

at the dosage of 1g/m2 of body surface area of the patient. This prescription, together

with the administration of idarubicin, was the intended dosage that had been

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recommended within the ALLG M15 study as being the appropriate dosage for persons

of or above the age of 56.

26.4. I find that a prescription for consolidation therapy that involved once daily

administration of cytarabine over alternate days was not a standard therapy and was not

recognised as a standard therapy. It will be recalled that this was the therapy that was

administered to the four deceased patients and Mr Knox, together with idarubicin. It

has to be borne in mind that the dosage had been significantly reduced from the

previously recommended higher dosages of 3g/m2 or 2g/m2 of body surface area. The

reduction in those dosages was a reflection of a consensus that the higher dosages were

probably no more efficacious than lower dosages but would increase toxicity over and

above lower dosages. However, there was never any intention that the frequency of

administration when administered over alternate days would also be reduced. I find

that the addition of idarubicin was not in any way intended to allow for a reduction in

frequency of administration of cytarabine, nor had any expert or scientific or other

publication suggested the same. There was no basis for any clinician to conclude that

the addition of idarubicin could mean that the frequency of administration of cytarabine

could be reduced. Indeed, the dosage of cytarabine had in any event been reduced by

way of it being halved or by way of it being reduced to two thirds of what it originally

had been. It is therefore no surprise that Associate Professor Yong in her email

suggested that what had been administered to the affected patients was ‘such a low

dose’.

26.5. It is to be accepted, and I find, that in a younger cohort of AML patients it has been

demonstrated that consolidation chemotherapy has efficacy. I also accept and find that

it has not been proven through any clinical trial or study that in the elderly,

consolidation chemotherapy has efficacy or that if it has efficacy to what extent it has

efficacy. However, I find that this fact alone does not mean that consolidation therapy

in the elderly has no efficacy. That said, I find that in general elderly patients, that is

to say persons above the age of 60 years, and particularly those with unfavourable

cytogenetic and molecular markers and those who have pre-existing myelodysplasia,

are less likely to respond favourably to consolidation chemotherapy for the disease

AML.

26.6. I find that all of the deceased patients and Mr Knox were in the elderly category of

patients.

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26.7. In my opinion, each of the four deceased and Mr Knox received consolidation

chemotherapy that was potentially less efficacious than the consolidation chemotherapy

that was intended for them. To my mind, it was likely to be less effective in eliminating

residual leukaemic cells than would have been the case if they had been administered

cytarabine twice daily and not once daily. I do not accept that cytarabine consolidation

therapy in the elderly has no efficacy. The fact that it can have efficacy and prolong

remission and overall survival durations is reflected in the fact that it is still

administered to the elderly despite its toxicity and its manifest potential to cause

debilitating and dangerous side effects.

26.8. However, I do not believe that it is possible for this Court to conclude in any of the five

cases which this Court has examined that any remission period or period of overall

survival in the case of the four deceased was significantly foreshortened. Taking Mr

Knox’s circumstances also into account, to my mind the expert evidence does not allow

for such a conclusion in any of the five cases which this Court has examined. Clearly,

however, in each case the patients responded to induction chemotherapy that utilised

the drug cytarabine as they were all successfully brought into remission after induction

chemotherapy. It is probable that all five patients would have died within a matter of

months had they not successfully undergone induction chemotherapy. All of the five

individuals underwent a cycle or cycles of consolidation chemotherapy during the

currency of their periods of remission. It is difficult to judge what therapeutic effect

the cycle or cycles of consolidation therapy had in each case if any. It is not possible

to determine whether or not any deficit in terms of remission period or overall survival

was contributed to by the chemotherapy frequency error.

26.9. I have carefully considered all of the expert evidence. I am mindful of the opinions

expressed by Dr Vaughan to the effect that the remission durations and/or durations of

overall survival of the five individual persons under discussion were in some cases

curtailed. However, in my view his evidence is outweighed by the totality of the

remaining expert evidence that is to the effect that in an individual case it is not possible

to say whether the remission period or period of overall survival was curtailed.

26.10. During the final address of Mr Trim QC, and in the context of a discussion about

Professor Gibson’s evidence that he could not discount the possibility that the incorrect

frequency of dosage in Mr Higham’s consolidation chemotherapy had compromised

his treatment, and that the same applied to the case of Mr McRae, Mr Trim QC on

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behalf of the doctors conceded that it is possible that their treatment was compromised,

adding that it may not have been compromised either361. To my mind this concession

was rightly made. The question of course is whether it has been demonstrated in the

course of this inquest that it was a probability in any given case. In my view Mr Trim

QC is also right when he argues that one cannot say.

26.11. Before dealing with the cases of the individual patients, I should say that I placed

limited weight on suggestions based upon statistical considerations that an individual’s

duration of remission or duration of overall survival accorded with an established

median or average or within a range of expectation. Clearly a median or average

duration does not represent the outcomes of all patients within a confined group of

cases. Some cases will fall below the median or average and some will fall above it.

The fact that a patient’s remission or survival duration fell within a certain

acknowledged range does not of itself mean that their treatment outcome and their

period of remission or survival was not affected by a shortcoming in his or her

treatment. It would also not of itself mean that their remission or survival duration

would not have been longer if they had been given the correct treatment. However,

what it does do is render an anomaly in remission or overall survivability duration as

being less likely the result of a treatment error.

26.12. In relation to Mrs Pinxteren in particular, I find that Mrs Pinxteren’s period of remission

was unexpectedly and disappointingly short. This is so given her favourable response

to induction chemotherapy in the first instance. However, Mrs Pinxteren, was

considerably older than the other patients. It is obvious that she exhibited some

response to her one round of consolidation chemotherapy because in the event she failed

to adequately recover from it to enable her to undergo a second cycle. Although

Mrs Pinxteren’s period of remission was unexpectedly short, I am unable to conclude

on the balance of probabilities that chemotherapy delivered in accordance with the

intended protocol would have lengthened her period of remission or her period of

survival. To my mind there is validity in the suggestion that if Mrs Pinxteren’s one

cycle of consolidation chemotherapy had been delivered in accordance with the

intended protocol, then her ability to recover from it could have been even worse.

361 Transcript, page 3288

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26.13. Mr McRae obviously responded to induction chemotherapy. I find that Mr McRae did

successfully attain remission. Mr McRae underwent two rounds of consolidation

chemotherapy not in accordance with the intended protocol. A delay between the first

and second cycles was due to the fact that Mr McRae recovered slowly from the

complications experienced as a result of the first round of consolidation. Although I

find that Mr McRae’s consolidation cycles were sub-therapeutic, his remission and

overall survival fell within the range of expected outcomes. That is not to say that

simply because those durations fell within expected range this of itself means that the

reduction in dosage frequency had no effect on those durations. It is simply impossible

one way or the other to draw any conclusion in that regard.

26.14. Regarding Mr Higham, having regard to prognostic factors in his case his prognosis

was not favourable. He was FLT3 positive and NPM1 positive. The positivity of the

FLT3 factor did not augur for a favourable outcome. Mr Higham would have been

regarded as of a higher risk in terms of prognosis. He also had myelodysplasia and

co-morbidities. He underwent two rounds of consolidation chemotherapy and it will

be remembered that he had a third so-called catch up round. Mr Higham’s remission

and overall survival fell within the range of expected outcomes and as Professor Gibson

indicated, was above the median that would have been expected. However, this does

not of itself mean that Mr Higham would not have enjoyed a longer remission or longer

period of survival if his two rounds of consolidation chemotherapy had been

administered in accordance with the correct protocol. There is also the complicating

factor of the possible effect of any catch up round that was administered during his

period of remission. To my mind, the suggestion from Dr Vaughan that Mr Higham

could have had a longer remission of around 6-12 months had he been treated in

accordance with the correct protocol is speculative.

26.15. Regarding Mrs Bairnsfather who also underwent a single cycle of consolidation

therapy, the evidence demonstrates that it is not possible to say that whether if in her

case the one round of consolidation chemotherapy would have been administered

correctly it would have altered either her remission period or survival duration.

26.16. Regarding Mr Knox, his was a case where conceivably he may have been cured of his

disease and have not suffered a relapse. He spent approximately two years in remission

following his induction chemotherapy. He underwent two consolidation therapies not

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in accordance with the correct protocol. His situation is also complicated by the

administration of a third catch up round prior to his relapse. The effect of that catch up

round, as in the case of Mr Higham, is uncertain. There was debate in particular

between Professor Gibson and Dr Beligaswatte as to whether the remission period of

two years was a period that fell within the range of expected outcomes having regard

to his favourable prognostic factors. In the event, I preferred the evidence of Professor

Gibson, an experienced clinician in the treatment of AML. I prefer his independence

and greater experience in assessing the issue when compared to that of Dr Beligaswatte.

However, as indicated above, I do not determine these issues simply by reference to

statistical expected outcomes. Professor Gibson stated that of all the cases that he had

reviewed, Mr Knox’s case was probably the most clear-cut where the outcome was less

than one might have reasonably expected. Dr Vaughan also stated that with proper

consolidation treatment Mr Knox may not have relapsed at all or at least his remission

might have been longer. Associate Professor Wei on the other hand suggested that what

could not be known in Mr Knox’s case is whether there was some hidden cytogenetic

unfavourable factor that may have operated to deny Mr Knox the expected favourable

outcome. I agree that this is a matter that cannot be known with certainty. While there

is a very grave suspicion in Mr Knox’s case that the underdosing acted to his detriment,

and that his remission may have been longer without relapse had he been treated in

accordance with the intended protocol, for much the same reasons as expressed in

relation to the other affected patients, it is not possible to conclude that on the balance

of probability his period of remission of remission would have been longer.

26.17. I do not believe that the fact of Mr Knox’s relapse and the period of his remission in his

case demonstrates anything of relevance in relation to the remission durations or

survival durations of any of the deceased persons. Nor in my view does it shed any light

upon whether or not in those four cases the remission durations and the survival

durations were affected by the underdosing.

26.18. As it is not possible to determine in a given case whether the incorrect frequency of

dosing had any adverse effect on the patient’s treatment, it must follow that the effect

of the so called catch up rounds is equally uncertain. The same applies to a

consideration of whether any delay in the administration of any catch up round had any

adverse effect.

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26.19. In my view it is also not possible to determine whether any delay in advising any other

of the affected patients of the error in treatment resulted in their further treatment being

rendered less effective.

26.20. None of the above should be interpreted as a finding that neither the remission duration

nor the duration of overall survivability of these affected patients was not affected by

the chemotherapy error. It is in my view simply impossible to say one way or the other.

To my mind the possibility that their remission durations and/or their periods of overall

survival would have been longer had they been treated in accordance with the intended

protocol has not in any of the five cases under discussion been discounted. This

possibility remains because of the possibility that in an individual case an insufficient

quantity of leukaemic cells in their S-phase may not have been eliminated due to the

reduced frequency of cytarabine administration and the consequent absence of the drug

from their bodies for extended and, due to the use of the incorrectly worded protocol,

unintended periods of time.

26.21. It would not have been in any sense irrational or unreasonable for the deceased persons

to have spent what remained of their lives following the revelation of the treatment error

to them pondering whether the error had resulted in the foreshortening of their lives.

This in and of itself is a truly dreadful thing.

27. Recommendations

27.1. Pursuant to section 25(2) of the Coroner’s Act 2003 I am empowered to make

recommendations that in the opinion of the Court might prevent, or reduce the

likelihood of, a recurrence of an event similar to the event that was the subject of the

Inquest.

27.2. I have already referred to the odd circumstance that each of the major tertiary public

hospitals in South Australia had their own protocol systems within Haematology

Departments. I here refer to the RAH, FMC and TQEH. This was even more surprising

having regard to the fact that the consultant haematologists within the Haematology

Departments at each of those hospitals was an employee of SA Pathology, another

Government health entity. There appears to be no sound basis for having a system

whereby each Haematology Department has complete autonomy in relation to the

content of chemotherapy protocols.

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27.3. The chemotherapy error at both the RAH and the FMC would have been avoided if

both hospitals, like TQEH, utilised the EviQ chemotherapy protocol system. To my

mind there is a clear need for uniformity as between the chemotherapy prescription

systems across the board in South Australia.

27.4. Another matter that arises from this inquest is that there is a clear need for pharmacists

to be involved in the chemotherapy protocol alteration and promulgation system. It so

happens that at both the RAH and the FMC pharmacists were either instrumental in

identifying the error in the case of the RAH, or in the case of the FMC at least

instrumental in identifying an issue, an issue that clearly should have been resolved in

favour of what the pharmacist had suspected was an error.

27.5. There is also a need for a codification of the manner in which protocols are altered. The

only document that I have seen in this regard was an ex post facto scheme that was

tendered through Associate Professor Kuss and which she asserts was more or less a

codification of already understood processes that had not been in writing.

27.6. Mr Griffin QC has urged the Court to consider making a recommendation that only

clinicians with expertise in the disease AML should be able to prescribe chemotherapy

treatment, but that if the clinician does not have relevant expertise in that disease, that

a primary source document should be viewed by the prescribing practitioner in addition

to the published protocol. He also suggests that the prescribing process should involve

two separate clinicians signing off on the prescription. I have given consideration to

that suggestion. There is limited evidence for me to judge one way or the other whether

such a process would be feasible having regard to the fact that (a) different clinicians

within haematology departments have different areas of expertise and (b) AML is a

comparatively uncommon disease.

27.7. In my view the Safety Learning System method of reporting adverse incidents does not

work. Not only that, it does not work across the entire SA Health system. It has not

been necessary to go into minute detail about the operation of the Safety Learning

System as it functioned, or rather failed to function, here. However, the fact of the

matter is that it was utilised in the first instance not at all. It was ultimately utilised late

in the piece and it did not in any way serve to ensure that when the chemotherapy error

was identified at the RAH it was also identified simultaneously at the FMC.

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27.8. The email system of communication between clinicians and other professionals in order

to impart information concerning protocol changes and content is fraught with danger.

People simply do not read emails that come to them in circular form involving multiple

recipients. Emails such as these and delivered in this fashion tend to lack obvious

relevance to some recipients, lack the necessary impact and in most cases do not call

for any kind of acknowledgement or action on the part of any recipient. Attachments

to emails are described in very general terms and do not really display any meaningful

invitation or incentive that they be read.

27.9. The process of disclosure to the affected patients in this case was unsatisfactory. It was

by no means truly open and in some instances lacked candour, in one instance was not

delivered by an appropriate person, was late and in the first instance was usually

attended by the imparting of inaccurate or incomplete information. The disclosure was

conducted by persons who had either been involved in the promulgation of the

treatment error or had some other personal interest in the matter at hand. Open

disclosure is only truly open when it is conducted by an entity that has no interest in the

outcome of any consequence of the treatment error. Disclosure to patients of a

treatment error should be conducted by an independent entity.

27.10. The Court makes the following recommendations directed to the Minister for Health

and Wellbeing, the Chief Executive of SA Health and the Heads of Haematology at the

Royal Adelaide Hospital, the Flinders Medical Centre and The Queen Elizabeth

Hospital:

1. That a State-wide chemotherapy protocol system be developed in relation to the

treatment of haematological illnesses. That the system not be individualised in

respect of particular hospitals, but apply to all hospitals who provide haematological

services. The State-wide protocol development system should encompass the

following elements:

• A State-wide committee be established to govern protocol development and

alteration. The committee should comprise the Heads of each hospital’s

Haematology Department, the chief haematological pharmacist from each

hospital and in the case of the disease AML, a specialist consultant with

expertise in that disease.

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• The proposed changes to chemotherapy protocol should be discussed at a

meeting of the committee prior to any changes being made.

• Changes to protocol should be presented in draft form to that meeting.

• Two separate clinicians should review and sign off on the final protocol

document.

• The final protocol document should be presented to all haematology specialists

and registrars to ensure that all such clinicians are aware of and understand the

alterations. These communications should not be made by circular email.

• Any changes to protocol should be based upon documented evidence in support

of the change.

• All protocols and alterations to protocols should be uniform across all

Haematology Departments in public hospitals in South Australia.

• There should be a State-wide electronic prescription system that is uniform in

its operation within all Haematology Departments in public hospitals in South

Australia. Electronic prescription templates created by pharmacists should

involve checking against the outcome of meetings that have taken place in

accordance with the system described above. They should be checked against

the written evidence in support of the protocol alteration. The final electronic

prescription should be approved by the committee before it is uploaded onto

any prescription system. It should be recognised that electronic prescriptions

are only as accurate as the information that has been gathered in order for the

prescriptions to be created. It should be recognised that electronic prescriptions

are not necessarily failsafe. Two independent clinicians should sign off on any

prescription.

2. That the current Safety Learning System (SLS) be abandoned and be replaced by

an adverse event reporting system that includes the following elements:

• An adverse event such as the detection of a protocol error or the treatment of a

patient in accordance with an erroneous protocol should immediately be

reported to the head of the relevant department and immediately be reported to

the chief administrative officer of the hospital in question. It should also be

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immediately be reported to the Chief Executive of the Department of Health and

Wellbeing.

• The fact of the adverse event, a detailed description of the event and of measures

taken to rectify any underlying error should immediately be communicated to

the chief administrative officers of each tertiary public hospital in South

Australia and also be reported to the heads of the relevant departments within

those hospitals.

3. That as far as is possible haematology consultants who have a particular expertise

in respect of a particular illness should, generally speaking, treat patients who have

been diagnosed with that illness. It is to be recognised that this may not always be

feasible. I would recommend that if a treating clinician does not have relevant

experience in the particular disease in question, they should take advice from

consultants who do have such expertise.

4. That email should be regarded as a dangerous means of communication in respect

of imparting information regarding protocol changes. I would recommend that

email communication be kept to a minimum. Where email communication is

utilised, emails should not be sent to large numbers of recipients. They should be

sent to batches of recipients, the commonality in the batches being the particular

field of professional endeavour of the recipient. For example, one email should be

sent to clinicians, another email should be sent to pharmacists and so on. Any such

email should display a flag or other warning that it should immediately be read and

that any attachment should be so read.

5. That in any open disclosure process wherein an error in treatment needs to be

explained to a patient, that an independent entity who has had no responsibility in

relation to the promulgation of the error or has any other interest in the outcome of

any consequences of the error should conduct and oversee the open disclosure

process. The independent person should be involved at the time of such disclosure

and also have an involvement in the formulation of a treatment plan in respect of a

patient, taking into account the error in treatment. I further recommend that the

philosophy underlying any open disclosure system should not be the protection of

a person, persons or entities responsible for the error, but the welfare of the patient

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should always be the paramount consideration. Disclosure to a patient should be

timely, candid, complete and have the capacity to independently inform the patient

as to further possible treatment options.

6. That there be a complete overhaul of clinical governance systems as they apply to

Haematology Departments within tertiary public hospitals in South Australia. The

overhaul should involve as its elements:

• The identification of suitable clinicians to exercise clinical governance

responsibilities taking into account the expertise, experience and, importantly,

the character of the individual.

• The promotion of education in relation to timely, appropriate and candid open

disclosure.

• The creation of timely and effective adverse event reporting systems within the

public health system of South Australia.

Key Words: Acute Myeloid Leukaemia; Chemotherapy Underdosing; SA Health

In witness whereof the said Coroner has hereunto set and subscribed his hand and

Seal the 22nd day of March, 2019.

Deputy State Coroner

Inquest Number 42/2016 (1188/2016, 1189/2016, 1488/2016 and 0295/2017)