Abondio v Women's & Children's Healthcare Network [2000] VSC 51

5. The proceeding is brought by the infant plaintiff through her litigation guardian and mother Anne Abondio. The infant plaintiff was born on 9 March 1994. The statement of claim allegation is that the defendant Network conducted the Royal Women's Hospital as part of it (the Royal Children's Hospital was the other hospital within the Network) and that the litigation guardian mother Anne Abondio was a patient of the Women's Hospital which undertook the care and management of her pregnancy which resulted in the birth of the infant plaintiff. The claim is made that the Hospital negligently mismanaged the mother's pregnancy and labour by not advising the mother to have her labour induced on about 1 March 1994 (when the mother was admitted to the Royal Women's Hospital with symptoms consistent with pre-eclampsia) and allowed the pregnancy to continue so that it went well beyond its estimated due date until 9 March 1994, as a consequence of which the infant plaintiff suffered severe asphyxia causing brain damage and the impairment of physical and intellectual function. Allegations are made that the Hospital failed to monitor the condition and wellbeing of the infant plaintiff prior to and during the course of the labour, failed to diagnose the fact that the infant plaintiff was in a distressed state and failing to ensure the delivery of the infant plaintiff so as to avoid asphyxia and other detailed allegations that are unnecessary here to reproduce. The result is that the infant plaintiff was gravely injured and it is claimed that she will require medical care and attendant support for the balance of her life.

8. The affidavits reveal that the infant plaintiff was subsequently admitted to the Royal Children's Hospital on 14 September 1994 and received treatment from time to time in respect of her disabilities the subject of this proceeding. Affidavits filed on behalf of both parties (see the affidavit of Michael Rookwood Proud and its exhibits and the affidavit of Kathryn Booth and exhibits on behalf of the plaintiff) deal in detail with these matters. The defendants claim (and it does not appear to be denied) that in April 1998 the plaintiff's solicitors made available to the defendant films of magnetic resonant imaging scans (MRI) and CT scans of the plaintiff which were taken at the Royal Children's Hospital while the plaintiff was treated there. A neonatologist, Dr. Campbell, is retained by the defendants to advise as to whether or not there is a causal relationship between the treatment provided by the Women's Hospital and the injuries alleged. He has indicated that to support a definitive opinion it is necessary that he have access to the notes of the Royal Children's Hospital bearing upon the plaintiff's health and disabilities beyond the first nine months of her life.

11. Mr. Proud's affidavit exhibits correspondence passing between the solicitors which confirms consensual provision by the plaintiff's lawyers of part of the Royal Children's Hospital's records (the scans) but the raising of the claim of privilege with respect to the other medical records at the Royal Children's Hospital. The defendants have specified that access to the Royal Children's Hospital's notes is required in order for an opinion to be formed as to possible alternative causes of the plaintiff's injuries, including possible chromosome defects or congenital infections or any other development disorder which might be the cause of the plaintiff's brain damage. It was also claimed on behalf of the plaintiff that the only records from the Royal Children's Hospital in the plaintiff's possession pre-date 11 April 1995. Subsequently, the plaintiff continued to maintain privilege but "without prejudice to the maintenance of that privilege" indicated preparedness to release some extracts from the records in response to the question made on behalf of Dr. Campbell. The defendants claim that this material is insufficient to allow the formation of appropriate opinions, in particular because of the lack of specific medical information and opinion concerning Alessandra's health and disabilities beyond nine months of age. The claim of privilege was maintained but it appears that the films of the MRI scans and the CT scans were made available in the month of April 1998, without reservation.

14. The affidavit of Ms Booth of 22 December 1999 indicates that the plaintiff's litigation guardian obtained the records in April 1995 pursuant to the Freedom of Information Act, has obtained no further hospital records from that hospital and does not have them in her possession. That affidavit states

"I have provided the defendant's solicitors with the key diagnostic evidence in relation to the plaintiff being an MRI scan, the CT scan the cranial ultrasounds and the relevant medical material from the Royal Children's Hospital records that we obtained with our freedom of Information application in 1995."

The affidavit goes on to suggest that since the plaintiff's medical advisers have not found it necessary to access the records of the Royal Children's Hospital in order to form an opinion as to causation, this should not be necessary for the defendant either.

19. A summons had been issued in June 1999 seeking access to the Royal Children's Hospital notes but did not proceed when the defendants were advised that the plaintiff did not have the Royal Children's Hospital notes concerning the infant plaintiff. It would appear that, apart from Dr. Campbell, another doctor retained by the defendants (Dr. Lindsay Smith) required to see the Royal Children's Hospital notes in order to determine "other possible aetiologies" for the plaintiff's disabilities.

22. It would appear no fresh summons was issued but the matter brought on before me on the basis of inadequate discovery. The defendant claims that it will be prejudiced by not having access to the Royal Children's Hospital notes regarding the plaintiff. It is not absolutely clear to me whether or not the present position of the plaintiff is that it does not have any copies of the Royal Children's Hospital records concerning the infant plaintiff after 5 April 1995. If the plaintiff does not she would not have in her possession documents of that kind to discover. I note that the defendants did not follow the procedure provided by Order 42 to facilitate third party discovery although it had threatened third party discovery in earlier correspondence. If in fact the Royal Children's Hospital had been required by appropriate third party procedures to produce the documents, they would have been accessible at the Prothonotary's office, subject to the taking of the point of privilege. That point appears to me as bound to have been taken, as it has been taken here. In those circumstances the Prothonotary would have had to refer the resolution of the privilege point to me in any event. I note that the plaintiff has filed a number of Order 44 statements and expert evidence from medical practitioners. One of these is Dr. Lionel Lubitz a member of staff at the Royal Children's Hospital who had been a doctor treating the plaintiff. The claim was certainly made in Mr. Proud's affidavit that Dr. Lubitz would have had to consult the Royal Children's Hospital notes to provide the corporate history of the plaintiff's treatment. Thus, it is argued, it is inevitable they will form part of the evidence either through the calling of Dr. Lubitz or proving the factual foundation of the opinion of expert witnesses.

25. No argument was advanced to me from either side against the right of the litigation guardian to take the point of privilege on behalf of the plaintiff. Mr. Kaye, Q.C. for the defendant appeared to me to specifically disclaim that the Royal Children's Hospital was other then a third party to this proceeding, that is, that although both hospitals are within the defendant Network the proceeding was in effect against the Royal Women's Hospital only, because of its claimed mismanagement of the pregnancy and labour of Mrs. Abondio. This appears to relieve me from the necessity to consider arguments which might possibly have been raised arising from the Health Services (Metropolitan Hospitals) Act 1995 by which a number of hospitals (including the two hospitals here involved) were "aggregated" and in particular from considering the possible consequences of an aggregation and the specific provisions of s.65D of the Act referred to. Once an Order under s.55C was made (and as I understand it one was made with respect to these hospitals) all property and rights of the aggregated hospitals, wherever located, vest in the new hospital, and all liabilities of the aggregated hospitals, wherever located, become liabilities of the new hospital which becomes the successor in law of the aggregated hospitals.

28. Mr. Kaye's argument fundamentally was that any privilege which existed in respect of the reports and notes of the Royal Children's Hospital concerning the infant plaintiff had been waived in two ways: (a) by bringing the proceedings against the defendant (by which he specifically meant the proceedings against the Royal Women's Hospital, notwithstanding that the defendant in this proceeding was both hospitals) and (b) by waiving privilege as to some of the medical records, already provided to and in the possession of the defendant.

31. There is authority that a person having the conduct of litigation on behalf of a patient under a disability may exercise the patient's power to waive the statutory privilege given by s.28(2). See Andasteel Constructions Pty. Ltd. v. Taylor [1964] VicRp 17; [1964] V.R. 112; Elbourne v. Troon [1978] VicRp 15; [1978] V.R. 171 at 175-6. However, there has been no express waiver of any claim to privilege with respect to the undiscovered hospital records and accordingly the argument that the institution of the proceedings against the defendant alleging negligence per se constitutes a waiver must rest upon the doctrine of implied waiver. Mr. Kaye relied upon some statements of Beach, J. in Fitzgerald v. Munro (unreported, 7th August 1998), his Honour stating as follows:

"In her affidavit of documents filed in the proceeding the plaintiff has discovered not only the medical records of the Knox Private Hospital relating to her treatment but also the medical records of St. Vincent's Hospital relating to the treatment she received at that hospital between October 1975 and October 1995. The plaintiff claims privilege in respect of both sets of records.

Whilst the application before me only relates to the St. Vincent's Hospital medical records I cannot but observe that it would seem to me to be difficult for the plaintiff to maintain any claim of privilege in respect of the Knox Private Hospital records. In that regard I think it is strongly arguable that having chosen to sue the Knox Private Hospital and the two specialists who treated her whilst she was an in-patient at the hospital, the plaintiff has waived any claim to privilege. However, as I have pointed out, that matter was not debated before me and it is unnecessary therefore that I make any ruling concerning it."

36. It was put by way of analogy that it was well-established that where a client sues a solicitor for negligence the client thereby impliedly waives privilege in relation to all communication from the client to the solicitor, including those recorded on the file as well as in verbal communication, at least in respect of the transaction sued on. The argument was that privilege must be held to be impliedly waived in relation to other transactions (otherwise privileged) which might be relevant to an issue in the proceeding between the client and the solicitor. Thus reliance is placed upon Lillicrap v.Nalder & Son (1993) 1 W.R. 94 at 99-102 and at (1993) 1 All E.R. 724 at 729-732 and, perhaps more relevantly, Kershaw v. Whelan (1996) 2 All E.R. 404 at 413-416. Lillirap was a case in which, in a suit of a complaining client about advice, the defendant's solicitor called in aid reference to other transactions acting for the same client to show that the client's practice was in the past to ignore advice. In that case the Court of Appeal unanimously held that the institution by the plaintiff of the actual suit constituted an implied waiver not only in respect to the transaction question, but also in relation to the previous transactions. Kershaw is a case of closer relevance because in Kershaw it was held, notwithstanding that the document in respect of which discovery was sought was subject to legal professional privilege, that the plaintiff by claiming that the defendant solicitor had concealed a critical letter had, by suing, waived privilege in respect of the files of his former solicitors in related proceedings. It was concluded that there was no logical basis for distinguishing between documents from the former solicitors and the sued solicitors because, despite differences in form, they related essentially to the same subject matter. This led to the conclusion that although the party denying privilege was not entitled to "a roving search" (see Lillicrap at 99) in relation to files of the opposite party acting for the plaintiff (then in the hands of his current solicitors), it was reasonable to require the plaintiff to permit the defendant access to the relevant documents from those files, including those of advice from solicitors and counsel.

39. Ebsworth, J., adopted the reasoning and language of Colman, J. in Nederlandse Reassuranteie Groep Holding N.V. v. Baker & Woodrow (1995) 1 All E.R. 976 to this effect at 987:

"But, as I have already explained, the foundation of the waiver is not merely that the assertion of privilege leads to the inaccessibility of evidence relevant to a defence. It is the inconsistency of the plaintiff on the hand opening the professional relationship to the inspection of the court and on the other hand seeking to enforce confidentiality so as to exclude communications to which the professional relationship between the same parties has given rise."

43. In that case, having reached the conclusion that the earlier files in the earlier proceedings fell into the same category as the matters in the relevant proceedings, it was concluded that the plaintiff had impliedly waived his undoubted privilege by suing the defendant. Although it would not be commonplace, this is capable of being inferred if a proceeding is brought impliedly waiving the privilege in respect of all matters relevant to the suit and, more particularly, where disclosure of privileged matter is required to enable justice to be done. This does not mean that waiver is lightly to be inferred.

46. The main feature of the argument advanced by Mr. Kaye was that in this case the proceeding necessarily involves questions relating to the plaintiff's condition, development and the medical treatment received by her in the years following her birth. Such matters might obviously and undoubtedly relate to issues of damage but, he submitted, they related not just to disability but a critical question of causation. Thus, he argued, since the proceeding alleges that the defendant's negligence caused her disability, the plaintiff impliedly waived privilege in all documents relating to all the issues necessary to be established by the plaintiff, including the causal connection between the disability and the allegations of breach of duty by the defendant. The defendant attacked the plaintiff's claim that the Royal Children's Hospital records were not discoverable because they were not relevant (affidavit of Booth, para. 3) on the basis that they were at least arguably relevant and that the assertion by the plaintiff about lack of relevance was premature. In my judgment, the defendant's submissions overstate the position in contending that all records must be accessible in order to enable the Court to determine the issue of causation. This over-extension of the argument might, if correct, draw in the right to have all the other party's records and reports drawn in as admissible. In my opinion, the facts in Kershaw were unusual because the same matter was dealt with in both sets of solicitor' records. This is not the present case. The infant plaintiff's later condition is dealt with in the Children's Hospital records not in the Women's Hospital records.

49. Every contrary opinion is not necessary to be known in order to discharge the obligation of fairness between the parties, in pre-trial considerations; but unfair concealment cannot be maintained by the Court, notwithstanding that, on either side plaintiff or defendant, damage is done forensically speaking by such disclosures. Thus, the argument of the defendant that the plaintiff is depriving the defendant of the opportunity to adequately instruct its own experts in respect of matters arising from post-April 1995 documents is, to my mind, unconvincing. This is an argument concerning the balancing of evidence, once the evidence is in. But, given the circumstances in this case, where the plaintiff was a one to two year-old infant, and the special but causally unrelated role of the litigation guardian, there is not much to be said in favour of excluding from the sphere of debate between the parties the records and notes of the hospital that relate to matters as to whether or not the condition of the plaintiff being considered and treated was connected with or arguably the cause of all the disabilities or congenital defects. The notation of medical judgment and, even within the limits of the responses of a mere child, and the evaluation of the connection of the present devastating disabilities and the negligent behaviour claimed is relevant.

52. Mr. Saccardo, who appeared for the plaintiff, took issue with the argument that because causation was in issue, as was the right to damages in connexion with breach, that the mere commencement of a proceeding in which causation (as it usually is) was relevant must amount to waiver of privilege in respect to the patient communication and treatment in relation to the condition. This, he said, destroyed the concept of medical privilege. However, I do not find it necessary to express any final opinion as to the first argument because I am satisfied that there has been a waiver of privilege in respect of the Children's Hospital records by reason of the provision of the scans to the defendant, without it then being agreed between parties that they "stood alone" and without then asserting continuing privilege to all other records.

55. The second basis upon which the defendant claimed that waiver had occurred was founded upon the matters already arising from the facts which I have described, that is that the plaintiff through her solicitors had disclosed documents generated through the Children's Hospital, namely the special X-rays and imaging referred to. Thus the point was simple that the plaintiff had already made available to the defendant (and/or waived the privilege in respect of) some of the medical records relating to the plaintiff's treatment both at the Women's and Children's Hospitals; all this, it was argued, amounting to a waiver of privilege.

58. There are two key High Court decisions of relatively recent times as to waiver of privilege in respect of records, the substance of which is that privilege may be determined to have been impliedly waived where it will be unfair or misleading to allow a party to refer or to use some material and yet assert that other material associated with it is privileged: see Attorney-General for the Northern Territory v. Maurice and Ors [1986] HCA 80; (1986) 161 C.L.R. 475 at 481, 487-8, 492-3, 497. The references above refer to individual judgments, but nevertheless it is a reasonable assessment of the views of the judges at that time that a party would be deemed to have waived privilege in relation to a document if it was unfair to permit privilege to be maintained in relation to related documents. Thus the argument here advanced was that the plaintiff intended to rely in part on the Royal Children's Hospital records namely the MRI scans and the CT scans already released and, inferentially, the records of the Women's Hospital relating to the infant plaintiff (that is not the mother litigation guardian): see the affidavit of Kathryn Booth, 21 January 1999 at para. 3. This argument was also founded upon the making available to the defendant of the records up to April 1995.

61. In Mann v. Carnell [1999] HCA 66; 168 A.L.R. 86, the High Court of Australia re-visited waiver of privilege in the context of disclosure of barristers' legal advices to an Independent Member of the A.C.T. Leglisative Assembly, leading to subsequent defamation proceedings. The primary issue proved to be whether the applicable law as to privilege and the loss of it by waiver (it was legal professional privilege) at the stage of discovery was governed by the common law or the Evidence Act (Commonwealth). The High Court concluded that, at the discovery stage, the common law principles were applicable. The majority of the Court (Gleeson, C.J., Gaudron, Gummow, Kirby and Callinan, JJ. McHugh, J. strongly dissenting) concluded that no privilege was lost in this case. It applied Goldberg v. Ng (1995) C.L.R. 83 and reiterated that a voluntary disclosure to a third party does not necessarily waive privilege. Goldberg was also a legal advice case. It appears that the majority view (as in Maurice) supports the proposition that disclosure might waive privilege if such disclosure is inconsistent with the confidentiality which the privlege serves to protect. Considerations of fairness may be relevant as to whether there is such inconsistency. These principles also apply to medical records of communication and treatment.

64. The plaintiff denies that there is in the plaintiff's possession the relevant material but this is not decisive of the point here. It is also founded in part upon not knowing what the documents state, thereby diminishing the argument of privilege. One argument advanced on behalf of the plaintiff was that the documents subsequent to April 1995 are irrelevant. However, these matters are arguably relevant as relating to causation and damage. The records of the Royal Children's Hospital are, in my judgment, almost bound to become part of the litigation and, if that be the case, both sides should be entitled to access them. Although one cannot be absolutely certain of these matters, allowing for the ingenuity of counsel in seeking to exclude possibly damaging material in evidence-in-chief, it is likely that the Royal Children's Hospital notes relating to the plaintiff will get in evidence as part of the plaintiff's case. It would be difficult for the plaintiff simply to lead the evidence of the events at the Women's Hospital and seek to leave out the plaintiff's medical records at the Royal Children's Hospital in the months and years following. If it did, they will be called for. What would occur would be delays relating to the right of the defendant to inspect and analyse documents which the plaintiff's opposition to pre-trial inspection had produced.

67. Part of the plaintiff's argument was that the medical records were not in the plaintiff's possession, custody or power. I propose to ignore the failure of the defendant to follow the appropriate procedure, preferring, in a managed list, to face the realities of the dispute. Essentially the plaintiff's argument was founded upon the privileged nature of the material (see P.Q. v. Australian Red Cross Society [1992] VicRp 2; [1992] 1 V.R. 19 at 24 and, parts of Beach, J.'s judgment in Fitzgerald v. Munro (supra)). However these matters really relate to privilege and not the question of exemption from privilege.

70. Mr. Saccardo argued that some part of the records have been released but under limiting conditions. He also submitted that a proper reading of Maurice was that a balance had to be struck between what was disclosed and what might be thought to reasonably lie behind the undisclosed material. Perhaps most importantly he argued that the disclosure of the scans (which he put were in effect separate films and depictions standing in their own right without the necessity for supplementation) stood in a different position from the history and treatment of histories, which were more clearly material and fell within the context of privileged material governed by s.28(2). The fact of the matter is, however, that the claim for privilege in relation to medical records of the Royal Children's Hospital was made after the disclosure of the MRI and CT scans. There is, in my judgment, some substance in the submission that there are material differences in the potency of medical electronic evaluation of conditions and the recording of clinical observations coupled with the history derived from the litigation guardian. They might clearly pose greater risks for the plaintiff. But, in my opinion, technical distinctions between what is released and what is maintained as privileged should not be lightly supported. Mr. Saccardo accepted there was a balancing exercise involved and that it should be decided against waiver of the balance of the undisclosed material. In my view, the alleged necessity of the defendant's experts to access the relevant information cannot be decisive of the issue of privilege. If it is privileged and unwaived, it matters little how much the defendant needs it in order to form their opinions, as the rights protected by s.28(2) will prevail. I say nothing about the fact that the medical privilege created by the statute in Victoria is singular in virtually the whole of the world and not reflected in any Australian jurisdiction nor in Europe nor in the United States. The greatest writer on the law of evidence Professor John Wigmore strongly opposed the grant of privilege unless four characteristics could be established, none of which will be established in this case. I refer to the learned article appearing in the papers of the 1995 International Medico-Legal Convention in Crete under the heading Privilege and Confidentiality in Medical Communications.

73. Notwithstanding the arguments both ways, I have concluded that there has been a waiver of privilege in this case. The plaintiff denies that it is being selective about the documents because she asserts that she has never sighted the post-1995 records. This may be so, but she is being selective about what she takes the point of privilege on. As Mann v. Carnell indicates, this may be permitted but in my judgment the claim for non-disclosure is inconsistent with considerations of confidentiality and is likely to prove to be unfair. It may be, if the plaintiff's solicitors do not have the relevant records, that they cannot be produced. However, I rule, in advance of any application for third party discovery of those records, that they would have to be produced. At the end of the day unless the plaintiff notify the Royal Children's Hospital that she is, as a consequence of these reasons, obliged to waive privilege in respect of the records and consents to their production, the effect of this order will be that upon an Order 42 application the defendant will be entitled to access to the Royal Children's Hospital records in relation to the treatment of the infant plaintiff.