Barker (Thomas) v Hodgkinson

The Rules 6Rule 31.36 requires service of experts' reports in professional negligence claims. Relevantly the rule is as follows:- [31.36] Service of experts' reports in professional negligence claims (1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting: (a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and (b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and (c) the causal relationship alleged between such breach of duty or obligation and the damage alleged. ... (3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate. ... 7The rules define professional negligence claims as including claims against medical practitioners.

The Plaintiff's Conduct of her Case 8The plaintiff did not file any experts' reports with the Statement of Claim as required by subrule 31.36(1). The Court has not made any order under that subrule relieving the plaintiff from compliance with the rule. 9On 14 November 2012, more than 10 months after filing her Statement of Claim, the plaintiff saw Dr Todman, neurologist. On 14 November 2012 the plaintiff sent to the defendant by email a copy of Dr Todman's report of that date. The report is addressed to a firm of solicitors in Brisbane, though it appears that while that firm assisted the plaintiff to obtain Dr Todman's opinion it did not otherwise act for her in the prosecution of her claim. 10In his report Dr Todman dealt thus with the plaintiff's history: - History In the early part of 1999 Mrs Thomas developed visual impairment in the right eye. Her visual acuity had dropped to 6/9. She saw an ophthalmologist at the time, but no specific diagnosis wa$ made. Visual evoked responses in the right eye, left half field were abnormally prolonged and the left eye central and left, right half were normal. At the time she also reported double vision. She also had patches of numbness throughout her body. She said that in 1998 she had an episode of vertigo. She thought it may have developed because of an insect or spider bite. The vertigo was only of short duration, but she was found subsequently to have nystagmus in her right eye. Also after that she began to experience episodes of numbness in her feet and on the left arm. There was also difficulty distinguishing between hot and cold sensation in the left arm, but this would be intermittent. Prior to this there was no other neurological history. In the family history her father's cousin had Multiple Sclerosis while a paternal grandfather had Parkinson's Disease. Mrs Thomas was referred to Dr Suzanne Hodgkinson, a Neurologist at Liverpool Hospital. Dr Hodgkinson arranged a number of tests including an ANA, ESR and anti-cardiolipin antibodies which were all normal. MRI scan of the brain and subsequent MRI scan of the spinal cord were both normal. She later had repeat evoked responses including somatosensory and motor evoked responses. The somatosensories were abnormal from the lower limbs. Mrs Thomas indicated that she was given a diagnosis of probable Multiple Sclerosis by Dr Hodgkinson. Dr Hodgkinson confirms this on page two of her letter in which she states, 'I've discussed these results with Carol Barker and believe that she has probable Multiple Sclerosis. The normal MRI scan has been reported in Multiple Sclerosis although it is fairly unusual." In the letter to Dr Chaudhry in Minto, she suggests that it would be worthwhile repeating the MRI scan in six to twelve months and suggested that Mrs Thomas return to see her if there were any new neurological complaints. There is a further handwritten letter to Dr Chaudhry in which she indicates that Carol Barker has "symptoms suggestive of MS'7 with the abnormal test results and even though her MRI scan was normal, she stated "I believe that these changes are consistent with probably (probable) Multiple Sclerosis. Mrs Thomas said that she believed after that, that she had Multiple Sclerosis and made certain life decisions regarding her career and having children based on this knowledge. In 2009 Carol Barker saw Dr Christopher Staples, Neurologist at Redcliffe, He noted the symptoms of numbness in parts of her body including genitalia and throat He noted that tandem gait was a little unsteady, but no other abnormality. She had had some turns at that time which she considered might represent partial seizures, but an EBG examination on 31.03.2009 was normal. A further MRI scan of the brain was also normal. Dr Staples concluded that Mrs Thomas did not have Multiple Sclerosis, but offered no specific diagnosis with respect to her various symptoms other than raising complex partial seizures which were likely excluded by the normal EEG. Education and Employment History Mrs Thomas has just completed a paramedic program and is about to start an intern program in 2014. In the 1990's she was studying an Arts and men Science Degree and had an ambition to study medicine. She said that she put on hold any thoughts of studying to be a doctor because of the diagnosis of Multiple Sclerosis, Examination The physical examination showed unsteadiness of heel/toe walking. Strength, reflexes and sensation were normal in all limbs. There was a mild intention tremor in both upper limbs. Cranial nerve testing was normal. File Review I have read the reports provided to me and a copy of your Index to Medical Brief is enclosed. Conclusion I would conclude from my assessment today that it is unlikely that Mrs Carol Thomas has Multiple Sclerosis. She has a variety of neurological symptoms and some of the symptoms have been episodic. Originally these symptoms raised the possibility that Mrs Thomas may have Multiple Sclerosis. Her initial symptoms of loss of vision in the right eye suggested the possibility of right optic neuritis. The delayed visual evoked response with a normal ophthalmological examination would suggest this possible diagnosis. Her other neurologic symptoms however have been nondescript. The episode of vertigo with nystagmus in 1998 may have been of vestibular origin. She also reported transient diplopia, but this was not supported by a finding of abnormal eye movements on examination. Also the episodes of sensory impairment which still continue have not been associated with any objective sensory loss. 11Dr Todman went on to discuss the diagnostic criteria for multiple sclerosis, which had changed over time. As opposed to the criteria generally accepted when the report was written, Dr Todman stated that those applicable in 1999 were the Poser criteria. They were the criteria by which any judgment should be made about the defendant's diagnosis. Dr Todman went on to answer a number of questions that had been asked in the referring letter. They included:- 1. Was Dr Hodgkinson's diagnosis, as expressed in the undated handwritten letter to Dr Chaudhry that Mrs Thomas has Multiple Sclerosis, reasonable in all the circumstances. Please note the diagnosis was in 1999. We understand the diagnostic criteria have been amended since then but we ask that you respond with reference to the criteria in common usage at the time. The application of the diagnostic criteria for Mrs Thomas in 1999 would allow the diagnosis of probable Multiple Sclerosis. 2. What further tests, examination and investigation would you have undertaken or arranged if Mrs Thomas had been your patient in 1999? Please explain why you would have undertaken these further actions. In retrospect I think that CSF examination for oligoclonal proteins may have given further evidence one way or another about the possibility of Multiple Sclerosis. This may have clarified the diagnosis to some extent 3. What results of the above examinations and investigations would you have required before you would have been prepared to diagnose Multiple Sclerosis in Mrs Thomas in 1999? As stated above, the application of the term 'probable Multiple Sclerosis' was not unreasonable considering the diagnostic criteria at the time. The difficulty in this case was that some of the clinical symptoms were non-specific and may have had other explanations. 4.Did Dr Hodgkinson breach her duty of care to Mrs Thomas in providing the diagnosis of Multiple Sclerosis on the evidence available to her at the time and with reference to the diagnostic criteria at the time. Based on my assessment I could not conclude that Dr Hodgkinson breached her duty of care to Mrs Thomas. 12After further correspondence, Dr Todman wrote a supplementary report on 27 November 2012. The report ran in part:- 1. Mrs Thomas has requested that you please clarify your answer to Question 3 - What results of the above examinations and investigations would you have required before you would have been prepared to diagnose Probable Multiple Sclerosis in Mrs Thomas in 1999? Although the clinical features in Mrs Thomas in 1999 allowed a diagnosis of probable Multiple Sclerosis based on the Poser Criteria, I would have also performed a CSF examination to check for oligoclonal proteins. 2. Further, Mrs Thomas requests that based on your own professional practice, experience and conduct, without reference to the criteria for diagnosing Multiple Sclerosis in 1999, would you have diagnosed Mrs Thomas with probable MS based solely on the tests performed and the clinical findings by Dr Hodgkinson? Would you please answer this question as distinctly as possible from a peer perspective, with reference to your own practices and perceived expectations of other professionals within your chosen profession? These are not questions that I could answer precisely. The Poser Criteria were guidelines in place at that time and I would have followed these criteria in making a diagnosis. As I emphasised in my earlier report, ail criteria of this type have a sensitivity and specificity for the diagnosis which is not 100%. If I had diagnosed Mrs Thomas with probable Multiple Sclerosis at that time I would have emphasized the uncertainty that is by definition contained in this diagnosis. That is, I would have emphasized the probable nature of the conditions as distinct from a definite or unequivocal diagnosis. I would have emphasized the need for clinical and radiological follow up over time which may either increase or reduce the likelihood of this diagnosis depending on outcomes and results. 3. Please find enclosed a letter received by Mrs Thomas from the MS Society regarding the Poser Criteria. Mrs Thomas states that none of her tests results showed there were any lesions and asks that you please give your opinion on how Dr Hodgkinson came to her diagnosis if she was following the correct criteria at the time. In this instance the diagnosis of probable Multiple Sclerosis was on the basis of one attack (optic neuritis), clinical evidence of one lesion(reduced visual acuity) and para-clinical evidence of another separate lesion(abnormal somatosensories from the lower limbs). 13The handwritten letter referred to in Dr Todman's first report became part of Exhibit 3 on the hearing of the motion. The letter is short and I shall set out in full the body of the letter:- Thank you very much for asking me to see Carol Barker. She has symptoms suggestive of MS. In addition her VER's and her SER's are delayed. Her MRI is normal. I believe these changes are consistent with probably Multiple Sclerosis. I would like shortly to give her some methylprednisolone but believe her depression & agitation needs to be treated prior to this. I have arranged to see her in 1/12. I hope Dr McLaren will be able to assist. 14The letter and other evidence shows that the questions posed for Dr Todman were incorrect in their reference to a diagnosis of multiple sclerosis. There never was any such diagnosis. The diagnosis was probable multiple sclerosis. However, Dr Todman was aware of that, as his answers show. 15The two reports of Dr Todman are the only reports served by the plaintiff. 16The plaintiff resides in Queensland. She cannot afford a solicitor. She has no access to Legal Aid. She sought the assistance of the Court to obtain pro bono representation and on 5 December 2012 Garling J directed the Registrar to attempt to obtain assistance. Unfortunately, no practitioner volunteered to assist and the Registrar terminated the referral in accordance with the rules. The plaintiff has no prospect of obtaining legal representation.

The Evidence as it Stands 17The two reports of Dr Todman are the only expert evidence the plaintiff has which are capable of bearing on the issue of the defendant's breach of her duty of care. 18On the hearing of the motion, the plaintiff seemed to accept that she needed further expert evidence to meet the requirements of the rule. However, she drew attention to the statements of Dr Todman in answer to question 2 in the first report and question 1 in the second that he would have performed a CSF examination to check for oligoclonal proteins. The plaintiff submitted, I think, that the failure of the defendant to take that step constituted a breach of her duty to the plaintiff. 19I would not accept such a submission. Dr Todman did not say that it was necessary for the defendant to requisition such a test in order properly to apply the criteria then current so as to meet the standard of care she owed to the plaintiff. That is not surprising in view of Dr Todman's observations in answer to question 2 in the first report that the test may have given further evidence one way or the other and that it may have clarified the diagnosis to some extent (emphasis added). 20I do not think that Dr Todman's reference to the test was intended to qualify his opinion that the application of the diagnostic criteria appropriate in 1999 to the facts known to the defendant would allow the diagnosis she made. 21In my opinion the reports of Dr Todman do not satisfy the requirements of R31.36 because they do not support the plaintiff's assertion that the defendant breached her duty of care. They support the defendant on that issue. If the case went to a hearing on the present evidence the result would be a verdict for the defendant.

The Possibility of Further Evidence 22The plaintiff tendered a bundle of documents marked Exhibit 1. The first page, apparently downloaded from a website, defined multiple sclerosis and said something about the diagnostic criteria current in 1999. There was a letter dated 20 December 2010 from Rob McClay, community support worker at MS Connect, an organisation that apparently supports and advises multiple sclerosis sufferers. Mr McClay attached to his letter three pages dealing with criteria for the diagnosis of multiple sclerosis including the Poser criteria. Then followed two pages from a text on the law of negligence and extracts from judgment of justices of the High Court of Australia. 23Exhibit 2 was a copy of a letter written by Dr T George, consultant psychiatrist, on 11 May 2012. The letter refers to a consultation with the plaintiff, arranged to seek a medico-legal report to assist with her claim for medical negligence. Dr George wrote his letter accepting that the plaintiff did not have multiple sclerosis but had been diagnosed in 1999 as having probable multiple sclerosis. Unsurprisingly, Dr George did not express any opinion about the appropriateness of the diagnosis by reference to contemporary criteria. The report was confined within Dr George's speciality to the plaintiff's psychiatric and psychological condition at the time of the diagnosis and its progress since then. 24None of the documents tendered by the plaintiff tends to show that in diagnosing 'probable multiple sclerosis' by application of the Poser criteria the defendant breached her duty of care. To the extent that they dealt with it, all the documents tendered by the plaintiff supported the statement that the Poser criteria were the applicable ones. 25In an application of this kind experts' reports are to be construed benevolently. Moreover, to the extent that they fail to provide the support required by the rule - one or more of paras (1) (a), (b) and (c) - t he Court must bear in mind that it might be open to a plaintiff to adduce evidence of a non-expert nature in such a way as to prove the case. The rule, designed to diminish the number of cases commenced without any reasonable prospect of success, should not be turned into an unreasonable hurdle to be surmounted by a plaintiff with legitimate claims: see generally the judgments of Ipp and Basten JJA and Gzell J in Salzke v Khoury [2009] NSWCA 195; (2009) 74 NSWLR 580. 26In my opinion this case is not of such a nature as to permit proof of the defendant's breach by any other than expert neurological evidence. 27With such matters in mind, I invited the plaintiff to deal with the prospects of obtaining further evidence. Although at the outset she had said that she was waiting for an appointment with a neurologist at the Royal Brisbane Hospital to provide evidence to support her claim she went on to say that she did not know whether what she had asked for would be provided. She did not seem to have any particular neurologist in mind and did not seem to be pursuing the matter. 28The defendant's motion was previously listed for hearing on 2 August 2013. It had to be adjourned because the plaintiff could not attend. However, in anticipation of the hearing the plaintiff wrote to the Registrar enclosing a letter from the rooms of Dr Jayasinghe, neurologist, stating that an appointment had been made for the plaintiff on 14 August 2013. Apparently the plaintiff attended. However, she informed the Court on the hearing of the motion that Dr Jayasinghe had declined to write a report. 29 The plaintiff asked for an opportunity to obtain a further report from the psychiatrist, Dr George, on the question whether in reaching her diagnosis the defendant had breached her duty of care. The plaintiff also effectively asked to be excused from compliance with the rule as far as it required the filing of expert evidence of breach. Finally, the plaintiff reiterated that the effect of Dr Todman's reports and the material downloaded by Mr McClay amounted to evidence that the defendant had failed to do a test that would have ruled out multiple sclerosis. The test, she asserted, was a requirement of any proper diagnosis. 30As I have said, the plaintiff must fail without further expert neurological evidence. I do not accept that Dr George or any other psychiatrist would or could express an admissible opinion on the question of breach. If I thought that there were some reasonable prospect that the plaintiff might obtain the evidence she needs I would have adjourned the hearing of the motion to allow her to make enquiries. However, I think that there is no such prospect. 31It is unsatisfactory that the defendant, a professional person, still does not know, 22 months after the commencement of this professional negligence claim against her, how the plaintiff proposes to prove her case. In my opinion the defendant ought not to have to remain in that position any longer. 32Pursuant to R 31.36(3) I dismiss the Statement of Claim. I order the plaintiff to pay the defendant's costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2013