Boardman v South Eastern Sydney Area Health Service & Ors

Boardman v South Eastern Sydney Area Health Service & Ors - [2001] NSWSC 930 - NSWSC 2001 case summary — Zoe

[12]

The expert reports relied upon by the plaintiff 8 Professor Cartmill, who is a cardiothoracic surgeon, provided a report dated 23 December 1997 to the plaintiff's solicitors. In that report Professor Cartmill expressed the opinion that the plaintiff's Choreiform Syndrome and mental retardation was attributable to the treatment undergone in April 1979. Since the symptoms of the disorders appeared soon after the operation, Professor Cartmill opined that "something probably went wrong during the operation or in the immediate peri-operative period". Professor Cartmill considers neither Choreiform Syndrome nor mental retardation is an outcome normally to be expected following repair of tetralogy, using cardiopulmonary bypass and routine postoperative care. Professor Cartmill concluded his report: "Whether or not the surgeon or the anaesthetist or both would be considered to have the ultimate responsibility for what happened in this case would, as I understand it, be a matter for the court to determine." 9 From my reading of Professor Cartmill's report, this expert does not identify any precise act or omission amounting to a failure to exercise reasonable care against any identified defendant. 10 Dr Wilkinson is an experienced paediatric cardiologist. In the report which he has provided, he has expressed the opinion that there can be little doubt that the plaintiff's Choreiform Syndrome and brain damage resulted from problems arising at the time of the surgery on 4 April 1979. His understanding of the plaintiff's preoperative history was that he was neurologically normal. Dr Wilkinson considered that there was evidence of an ischaemic insult to the brain occurring in the early period of heart-lung bypass and this explained what he regarded as a large dose of thiopentone being administered. Dr Wilkinson regarded the injury as being likely to have been due to the low perfusion rate before the plaintiff's temperature had dropped to levels where hypothermia would have been able to provide reasonable protection from ischaemic injury. Dr Wilkinson concluded his report: "…I believe that the evidence suggests that this tragic brain injury did not result from a direct failure of the surgery as such and did not result from a failure of the postoperative management. The likely cause was a problem during the early part of the heart-lung bypass and the responsibility for this is likely to rest primarily with the clinician who was in charge of the perfusion." 11 Associate Professor Bolsin, who is the Director of Peri Operative Medicine, Anaesthesia, and Pain Management at the Geelong Hospital has summarised his conclusions at the end of a lengthy report identifying what he has opined to be the causes of the plaintiff's injuries: "a. Failure to confirm the patency of the Blalock-Taussig (BT) shunt prior to the operation.

[27]

The expert reports relied upon by the second and third defendants 15 Dr Gale is a cardiothoracic surgeon and he has provided a number of reports. Dr Gale considered that the harm suffered occurred at or about the time of the surgery and during the cardiac bypass procedure. He opined that the complication was unpredictable and possibly unavoidable. He did not regard it as being due to negligence by the surgeon or the anaesthetist. In subsequent reports Dr Gale considered Dr Wilkinson's report and Associate Professor Bolsin's report. Those latter reports of Dr Gale identified areas of disagreement between the three experts. 16 Dr Johnson is a cardiothoracic surgeon whose first report focussed on the surgeon's role. He was unable to detect from the material he was able to study any departure by the surgeon from proper professional standards. In a subsequent report he indicated that the evidence did not suggest that the surgeon became aware during the operation of any problem with the perfusion, if problem there was. Then, in a lengthy report dated 26 June 2001, Dr Johnson considered Associate Professor Bolsin's report. In the course of doing so, he addressed each of the heads of negligence contained in Associate Professor Bolsin's report. It is clear that Dr Johnson does not agree with Associate Professor Bolsin on the issues thus considered. 17 Dr Baines is a specialist anaesthetist. It was this expert's opinion that the plaintiff did sustain injury in the course of the surgery but he did not detect any negligence on the part of the defendants. In a second and more detailed report, the doctor stated that the plaintiff's problems "while extremely regrettable, are likely to have occurred without any mistake or error or lack of standard of care by the operating team." Subsequently Dr Baines considered Associate Professor Bolsin's report. As I understand it, Dr Baines does not agree with any of the conclusions expressed by Associate Professor Bolsin as to what that expert perceived was a departure from professional standards by the defendants. 18 Dr Crawford provided a report as an expert in anaesthetics. In that report Dr Crawford considered Associate Professor Bolsin's report and expressed the opinion that such report was flawed in a number of areas and that there was no indication that the anaesthetist had been responsible for the plaintiff's poor outcome.

[34]

(j) Perfusion during heart lung bypass. 3. In relation to each factor specified as causative of brain damage, specify if anything should reasonably have been done to prevent brain damage occurring." 22 Ms Walsh, in opposing the orders sought, made submissions consistent with her affidavit sworn on 4 October 2001. 23 As to the first of the suggested questions, it was submitted by Ms Walsh that this concerns a matter that does not appear to be in dispute. Certainly Dr Wilkinson, Associate Professor Bolsin, Dr Gale and Dr Baines consider the injury probably occurred during the operation and it may be that the appointment of a conference would not be warranted simply to address the first of the suggested questions. If, however, a conference should be appointed to address the second and third questions proposed, the apparent consensus, at least between some of the experts, in relation to the first issue would not make the appointment of a conference inappropriate. 24 In relation to the remaining questions suggested for consideration at a joint conference however, it was argued on behalf of the plaintiff that the reports of the defendants' experts reveal that there is entrenched disagreement between Associate Professor Bolsin on the one hand and the experts qualified by the defendants. On my reading of the reports, this is plainly the case, and the areas of disagreement are identified and they are extensive. 25 What the defendants seek is a wide-ranging conference involving eight experts. It would be a major undertaking, and a costly one. Two of the plaintiff's experts are in Victoria and there is evidence that the third is in the Middle East; and I am not persuaded it would prove practicable to arrange a meeting, in the physical sense, between them all. I perceive there would be real disadvantages in a conference by videolink or in a teleconference with so many involved and so many issues to consider. 26 Part 36 r 13CA provides a most useful facility for cases in this list, and parties are to be encouraged to utilise the facility wherever it is appropriate. The Court is alert to the desirability of ordering such conferences in the appropriate circumstances. The objectives of joint conferences are identified in para 2 of Practice Note 121 as including: "(a) The just, quick and cost effective disposal of the proceedings.

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Cited By (4)