Boardman v South Eastern Sydney Area Health Service & Ors

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

NATHAN BOARDMAN by his tutor JENNIFER BOARDMAN v SOUTH EASTERN SYDNEY AREA HEALTH SERVICE

JUDGMENT 1 HIS HONOUR: The second defendant has applied to the court by notice of motion seeking the following orders: "1. That a joint conference of expert witnesses be convened pursuant to Supreme Court Rule [Part] 36 [Rule] 13CA between those experts listed in Annexure 'Q' to the affidavit of Amanda Large dated 20/9/2001;

2. That the conference be held without the attendance of legal representatives for the parties;

3. That the experts listed in order 1 be directed to endeavour to reach agreement in relation to those questions set out in Annexure 'R' to the affidavit of Amanda Large dated 20/9/01;

4. That the experts provide the Court with a joint report specifying matters agreed and matters not agreed and the reason for any non-agreement;

6. Costs to be costs in the cause." 2 The second defendant moves on the affidavit of Amanda Large sworn on 20 September 2001. That affidavit annexes the plaintiff's pleadings and the various medical reports that have been exchanged between the parties. The second defendant has submitted that the medical issues warrant the appointment of a joint conference of expert witnesses. The second defendant's application is supported by the first defendant and the third defendant but opposed by the plaintiff. 3 In this cause the plaintiff is seeking damages alleging negligence by the various defendants. The focal point of the claim is an operation which the plaintiff underwent on 4 April 1979 as a three year old child. The surgery was carried out at Prince Henry Hospital by the second defendant and the third defendant was the anaesthetist. The surgery was directed to a congenital heart defect known as the Tetralogy of Fallot. After surgery, at a point of time which I do not define, the plaintiff manifested signs of brain damage which it appears were characteristic of Choreiform Syndrome. The Pt 33 particulars define the injuries alleged to have been sustained by the plaintiff with the resultant disabilities as follows: "1. Brain damage.

6. Epilepsy." 4 The plaintiff's solicitors have served upon the defendants expert reports from Professor Cartmill, Dr Wilkinson and Associate Professor Bolsin. For their part, the second and third defendants have served reports from Dr Gale, Dr Johnson, Dr Baines and Dr Crawford. The first defendant has but recently served reports of Dr Dittmer. 5 A reading of the reports of the experts identified discloses that this cause is one in which there are complex questions to be resolved, in particular as to whether, in the event that injury was sustained during the course of the operative procedure, this was due to any negligence by one or other or all of the defendants to the cause. 6 The plaintiff has amended the statement of claim originally filed on two occasions. The pleading in its present form contains in para 24 twenty-two particulars of negligence against the first defendant (although there is some apparent repetition); the same pleading alleges twenty-one particulars of negligence against the surgeon; and it alleges thirteen particulars of negligence against the anaesthetist. 7 In considering the application now made and the competing submissions, it is necessary to do so with an appreciation of the content of the various expert reports that have been served.

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.

b. Failure to confirm inferior vena cava obstruction prior to the operation

c. Failure to identify the right Blalock-Taussig (BT) shunt prior to cardiopulmonary bypass d. Failure to isolate the Blalock-Taussig shunt prior to cardiopulmonary bypass

e. Failure to ligate the Blalock-Taussig shunt at the commencement of cardiopulmonary bypass." 12 The expert has gone on to express the opinion that the surgeon exhibited an unreasonably low standard of care for these reasons: "a. He failed to identify a dangerously low blood pressure early in the cardiopulmonary bypass period (see Dr Wright's statement of assumptions paras 32 & 34)

b. He failed to treat a dangerously low blood pressure on cardiopulmonary bypass

c. He failed to comment on a dangerously low blood pressure in the operative record

d. He failed to communicate the potential problems of a dangerously low blood pressure to the patient or relatives" 13 Then the report went on to address what Associate Professor Bolsin considered to be the negligence of the anaesthetist: "a. He failed to identify a dangerously low blood pressure early in the cardiopulmonary bypass period

b. He failed to communicate a dangerously low blood pressure on cardiopulmonary bypass to Dr Wright

c. He failed to treat a dangerously low blood pressure on cardiopulmonary bypass

d. He failed to record a dangerously low blood pressure in the operative notes

e. He failed to communicate the potential problems of a dangerously low blood pressure to the patient or relatives

f. He administered a dangerously high dose of sodium thiopentone (STP 250 mg or 16.7 mg/kg) early in the cardiopulmonary bypass period

g. He failed to communicate the dangerously high dose of thiopentone to Dr Wright

h. He allowed cooling to a lower temperature than was required for this operation.

i. He failed to communicate cooling to a lower than usual temperature to Dr Wright" 14 I would infer that it was Associate Professor Bolsin's report which prompted the most recent amendments to the statement of claim. His definition of the negligence of the second and the third defendants is taken up in the particulars of negligence in that most recent statement of claim, although the source of some of the particulars of negligence that have been pleaded I am unable to detect.

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.

The expert report relied upon by the first defendant 19 Finally, there is the most recent report of Dr Dittmer. Dr Dittmer is the Deputy Head of Cardiac Physiology and Perfusion at the Adolf Basser Cardiac Institute. His particular focus was on the perfusion aspects. Dr Dittmer considered Associate Professor Bolsin's report in some detail and he defined many areas of disagreement with Associate Professor Bolsin's interpretation of events and his conclusions. 20 Consideration of the expert reports to which I have referred emphasises the complexity of the medical issues which this case presents. It was submitted by Mr Evans on behalf of the second and third defendants that because of the complexity of the issues it is most desirable that areas of agreement be identified, and that every effort should be made to seek to narrow the issues. Accordingly it was submitted this was an appropriate case for the appointment of a joint conference of experts under Pt 36 r 13CA. It was argued in the event that the matter has to proceed to trial that with no identified areas of agreement between the experts, the court and the parties will be faced with very lengthy, complex and expensive litigation. It was submitted that there will be a need for each of the many experts who have been qualified and who are called to address not only the question of causation but the various particulars of negligence which the plaintiff has expressed in his most recent pleading. 21 The second and third defendants have proposed that the following questions be submitted for the consideration of the participants in the conference: "1. In relation to Nathan Boardman's admission to Prince Henry Hospital between 19 March 1979 and 21 April 1979 (inclusive) is there anything that suggests an intra-operative cause of Nathan Boardman's brain damage?

2. If so, specify which if any of the following factors were causative, and in what way. If other factors not listed were causative specify these, and indicate their significance. (a) Surgical technique;

(b) Pre-operative patency or otherwise of the plaintiff's Blalock-Taussig shunt;

(c) Pre- and intra-operative patency or otherwise of the plaintiff's inferior vena cava;

(d) Timing of ligation of the Blalock-Taussig shunt;

(e) Nathan Boardman's blood pressure levels during heart lung bypass;

(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.

(b) The identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called.

(c) The consequential shortening of the trial and enhanced prospects of settlement.

(d) Apprising the Court of the issues for determination.

(e) Binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross-examination of a participating expert called at the trial who seeks to depart from what was agreed.)

(f) Avoiding or reducing the need for experts to attend court to give evidence." 27 The circumstances of each case, however, require careful consideration in determining how best the above objectives can be achieved and I am not persuaded, after anxious consideration of this motion, that I should make the orders sought in it, bearing in mind what I perceive to be the contraindications to a successful outcome. 28 It does not necessarily follow that the door is permanently shut to a conference of experts in this case. However, it seems to me that what is presently required is to explore the possibility of further refinement of the issues at a court conference. If refinement can be achieved, a conference of experts may become a practicable and useful measure. 29 The content of para 6 and of following paragraphs of the affidavit of Ms Walsh of 4 October 2001 suggests the possibility of narrowing the issues from those so broadly stated in the particulars of negligence in the statement of claim. I invite the parties to consider what can be done to further narrow the issues before this question is addressed by the court at the next conference hearing. I note that there is a conference appointed for 26 October next. The list on that day will be taken by Registrar Younes. The appointment for this case in that list is vacated and the matter will be listed before me in the Judge's list for Friday 2 November 2001.

2. The second defendant is to pay the plaintiff's costs on the motion.

3. The conference hearing for 26 October 2001 is vacated.

4. In lieu thereof, the matter is to be placed in the Judge's list for Friday 2 November 2001.

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