On 4 September 2018, the defendant, the Murrumbidgee Local Health District, filed a Notice of Motion in proceedings brought by James Coffey by his tutor Kathleen Amanda Coffey.
The Notice of Motion sought, pursuant to identified legislative provisions, a declaration that the defendant be permitted to interview Dr John Preddy in relation to his observations of the plaintiff on 19 January 2004, and his involvement in the provision of treatment and care to the plaintiff on that day. An order for costs was also sought.
[2]
Factual Background
The proceedings in which the Motion was brought were commenced in 2011 and are presently constituted by a Further Amended Statement of Claim. The facts giving rise to the causes of action, to which I will shortly refer, surround the treatment of the plaintiff's mother prior to the delivery of the plaintiff at the Wagga Wagga Base Hospital, an institution for which the defendant is responsible, and also the events surrounding the delivery of the plaintiff on 19 January 2004.
The plaintiff was born prematurely, at about 27 weeks' gestation, at about 8.10am on 19 January 2004. It is alleged in the pleading that, having been born, the plaintiff demonstrated respiratory distress and was in a state of cardiorespiratory instability. The plaintiff pleads that Dr Preddy, a consultant paediatrician at the hospital, arrived at 08:25am, being 15 minutes after the plaintiff was born. The plaintiff pleads that he was intubated by Dr Preddy at 08:37am.
Consequent upon the plaintiff's premature birth, he was transferred to the Canberra Hospital, where he arrived at 4:25pm on 19 January 2004 and was then, immediately admitted into the Neonatal Intensive Care Unit.
As I have earlier recounted, Dr Preddy saw the plaintiff on 19 January 2004 examined him on that day and provided treatment to him, prior to the transfer of the plaintiff to Canberra.
On 27 April 2004, Dr Preddy wrote a report to the plaintiff's general practitioner about a consultation, the date of which is not specified but which must have occurred after the plaintiff was discharged from Canberra Hospital and prior to 27 April 2004. It is common ground that after the plaintiff was discharged from Canberra Hospital he was seen and treated by Dr Preddy at the Wagga Wagga Specialist Medical Centre as a private patient. The defendant had, and has no role to play in that arrangement.
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Causes of Action
It is necessary to outline the causes of action which are pleaded.
The plaintiff pleads against the defendant a cause of action in contract, namely that the defendant would provide medical advice and services to the plaintiff in accordance with the standard of care reasonably to be expected of a person in the position of the defendant. The plaintiff further pleads a cause of action in the tort of negligence against the defendant.
In respect of those two causes of action, amongst other things that the plaintiff relies upon is that the defendant, in circumstances where it had not transferred the plaintiff's mother to Canberra Hospital on 5 January 2004, or at any time prior to 19 January 2004, ought to have ensured that a neonatologist or paediatrician was present at the point of delivery.
The consequence for the plaintiff of the failure by the defendant to have a paediatrician present at the time of delivery seems to be that addressed in the expert opinion of Dr A J McPhee, a specialist neonatologist, in a report dated 10 January 2018, which was served by the plaintiff on the defendant on 2 July 2018. Dr McPhee says this:
"James was apnoeic and bradycardic at the time of delivery at Wagga Base Hospital. This was managed with mask ventilation for many minutes and a brief period of chest compressions before Dr Preddy arrived at 15-20 minutes of age, at which time he intubated James and gave Surfactant. This episode of care, and particularly the period of chest impressions, would likely have imposed a degree of circulatory stress on the cerebral microcirculation. A comparable delivery at Canberra would likely have been managed by immediate intubation and ventilation, likely resulting in a rapid recovery in the heart rate and avoiding the episode of chest compressions. Overall, I believe that the delivery and resuscitation in Canberra would have resulted in a more efficient process of resuscitation and more stable cardiorespiratory transition, which may well have reduced the risk of subsequent IVH (Intraventricular haemorrhage)."
In a later report, about which I am informed from the Bar Table (without objection), Dr McPhee has expressed a view that the prompt intubation of the plaintiff would likely have avoided the injuries from which he presently suffers.
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Correspondence between the Parties
The defendant determined that, for the proper preparation of the proceedings, it wished to interview Dr Preddy. Dr Preddy is willing to be interviewed. He is still in private practice in Wagga Wagga, and remains a consultant at the Wagga Wagga Base Hospital.
Accordingly, on 10 August 2018, the solicitor for the defendant wrote to the solicitor for the plaintiff, drawing attention to the pleadings and the facts pleaded with respect to Dr Preddy's attendance on the plaintiff. In particular, the letter noted that the allegation in the Further Amended Statement of Claim that Dr Preddy was the "defendant's paediatrician" was admitted by the defendant in its Defence. The letter of 10 August 2018 included this paragraph:
"We write to advise that in view of the specific allegations pleaded and the expert opinions expressed … we will be approaching Dr Preddy to discuss with him the circumstances of James' delivery and resuscitation on 19 January 2004 and his involvement at the time. Our view is that the defendant is entitled to confer with Dr Preddy (who was part of the treating team at the time) without broaching the confidential relationship that exists between him and James in relation to James' more recent treatment. We will not be discussing Dr Preddy's subsequent treatment of James, which we understand may continue up to the present time."
The solicitor for the plaintiff responded to that letter on 13 August 2018 relevantly in the following terms:
"We are instructed to advise that James Coffey does not waive the confidentiality attached to the doctor/patient relationship and does not consent to any discussion with Dr Preddy related to treatment provided on 19 January 2004 or thereafter."
That letter was responded to on 15 August 2018, by the solicitor for the defendant. In this response, it was plain that the solicitor was of the view that the defendant was entitled to interview Dr Preddy in relation to the events of 19 January 2004, including the plaintiff's condition, because Dr Preddy was one of the doctors who provided care and treatment to the plaintiff at the Wagga Base Hospital in his capacity as the on-call paediatrician for patients admitted to the hospital. The letter went on to say this:
"We again emphasise that we only intend to interview Dr Preddy in respect of his observations regarding the plaintiff's condition at, and soon after, his birth on 19 January 2004 and his involvement in the early provision of treatment to the plaintiff. We will not ask Dr Preddy any questions regarding his later treatment of the plaintiff (in respect of which we accept a confidential therapeutic relationship exists).
In light of the above we ask that you reconsider your position.
Unless we hear from you to confirm that you accept that the defendant is entitled to interview Dr Preddy, as suggested above by the close of business on 17 August 2018, we intend to make an application to the Court for a relevant declaration."
The letter also included a statement to the effect that having regard to the approach in the decision of the Court of Appeal Richards v Kadian by his Tutor Kadian and Others [2005] NSWCA 362; (2005) 64 NSWLR 204, it was appropriate for the defendant to seek a ruling from the Court. The letter went on to make this statement:
"We also confirm that if, as we expect, the Court finds there is no impediment to the defendant interviewing Dr Preddy on particular issues as we have proposed, we will seek costs, including costs on an indemnity basis."
On 16 August 2018, the solicitor for the plaintiff, indicating that instructions would be sought, but the deadline proposed was unlikely to be met. The letter also included these statements:
"Further, we note that each party has access to the contemporaneous notes in respect of the plaintiff's birth and those notes contain all relevant records relating to the action taken by Dr Preddy and the plaintiff's condition at, and soon after, his birth on 19 January 2004. It is most unlikely that Dr Preddy could add anything to the factual matrix of this case in circumstances where the event occurred in excess of 14 years ago.
In relation to the decision of Richards v Kadian … we invite you to identify the areas of the judgment upon which your client relies in support of the contention that the circumstances of this case are sufficient to result in a loss of patient/doctor confidentiality."
Correspondence continued. On 20 August 2018, the solicitor for the defendant responded to that letter, joining issue with the matters contained in it and noting that, in the absence of confirmation by an extended deadline, that there was no objection to the interview, application would be made to the Court and the defendant would seek indemnity costs. The solicitors for the defendant added:
"We take the view that your opposition to the course we have proposed is without substance and unnecessarily obstructionist."
That letter was responded to by the solicitors for the plaintiff in these terms:
"To enable us to obtain our client's instructions, would you please advise as to whether your client consents to the plaintiff interviewing the defendant's midwives and nurses present at and after the birth of James Coffey?"
The response to that letter from the solicitor for the defendant indicated that, whilst they would seek instructions, there was no linkage between that request and the confidentiality issue asserted with respect to Dr Preddy.
In the absence of any agreement about the matter, the Notice of Motion has been brought.
[5]
Discernment
The facts and circumstances which I have described indicate that, with respect to the events of 19 January 2004, and the attendance of Dr Preddy upon the plaintiff, there was no relationship of confidentiality of any kind which would preclude the defendant interviewing Dr Preddy. I have come to that conclusion for the following reasons.
First, counsel for the plaintiff on the Motion accepted that there was no such relationship with respect to the events of 19 January 2004, although she submitted that such a relationship arose later when the plaintiff retained Dr Preddy privately.
Secondly, to the extent that there was a relationship of confidentiality in existence as at 19 January 2004, that relationship was between the defendant, in the guise of the Wagga Wagga Base Hospital, its employees and consultants who provided care to the plaintiff and the plaintiff. To the extent that Dr Preddy attended upon the plaintiff on 19 January 2004, he did so in his capacity as the on-call paediatrician, namely, a consultant whose services were provided to the plaintiff by the defendant as part of its obligation to provide services and treatment to the plaintiff who was a patient in their hospital.
At that point in time, and throughout 19 January 2004, there was no separate obligation of confidentiality between Dr Preddy and the plaintiff of a kind different from that between the plaintiff and the Wagga Wagga Base Hospital, in effect, the defendant.
Accordingly, there is simply no legal basis referable to any obligation of confidentiality that would preclude the lawyers for the defendant conferring with Dr Preddy for the purpose of discussing with him the events of and surrounding the plaintiff's birth on 19 January 2004, and the treatment provided to the plaintiff by Dr Preddy up until the plaintiff was admitted to Canberra Hospital later that afternoon.
As well, there is nothing to preclude the solicitors for the defendant talking to Dr Preddy about his view of the consequences of the treatment which he administered, including the allegation in the Statement of Claim that, had treatment been administered earlier, a different outcome may have ensued.
I accept that once the plaintiff consulted Dr Preddy in his rooms at the Wagga Wagga Specialist Medical Centre, which seems to have been after his discharge from Canberra Hospital, the relationship between the plaintiff and Dr Preddy from that time onwards was one of confidence and that Dr Preddy would, in the absence of the plaintiff's consent, or any waiver by or on behalf of the plaintiff, be precluded by that relationship of confidence from discussing any matter with a third party, here the hospital or the solicitors for the defendant.
However, as the correspondence clearly demonstrates, the solicitors for the defendant made it plain that they did not intend to speak to Dr Preddy about any matter which was subject to the obligation of confidence to which I have just referred. On the contrary, the solicitors for the defendant made it abundantly plain in correspondence that they only intended to discuss the events of 19 January 2004 and the circumstances surrounding those events with Dr Preddy.
The proper course for the solicitors for the plaintiff to have followed, having received the correspondence of 10 August 2018, would have been to respond that they could not maintain any objection to a discussion between the solicitors for the defendant and Dr Preddy on the basis outlined in that letter, but that the plaintiff did not waive confidentiality with respect to the treatment provided after his discharge from Canberra Hospital by Dr Preddy.
Sadly, the letter of 13 August 2018, from the solicitors for the plaintiff did not respond in that manner. It asserted, as it seems to me, that there was an obligation of doctor/patient confidentiality surrounding the treatment provided by Dr Preddy on 19 January 2004. The terms of the letter of 13 August 2018, asserted that there was such a relationship starting at that time and continuing at all times thereafter. There was no proper basis for such an assertion, insofar as it related to the events of 19 January 2004.
Even though a letter of 15 August 2018 written in moderate terms again sought to persuade the solicitors for the plaintiff the error of their views and asked them to reconsider the matter, the subsequent correspondence does not indicate that the solicitor for the plaintiff in fact reconsidered the matter. Instead, as it appears to me, the solicitors for the plaintiff maintained an oppositional stance, which was an unreasoned and unreasonable one. That was obvious from the terms of the letter of 22 August 2018, which I have referred to above, where the solicitors for the plaintiff sought to use the notification of the solicitor for the defendant's intention to interview Dr Preddy as a bargaining chip to enable it to interview any of the midwives and nurses who were present at the birth. There was no link between the two. The manner in which the solicitor for the plaintiff sought to use the defendant's request as a bargaining tool or chip was inappropriate.
The solicitors for the plaintiff maintained their opposition, based upon the asserted confidentiality to discussions between the solicitors for the defendant and Dr Preddy in an affidavit filed on 21 September 2018 by Ms Tonya Longmore, the solicitor for the plaintiff, who, in that affidavit, said that the plaintiff's tutor did not consent to the waiving of patient/doctor confidentiality as between the plaintiff and Dr Preddy.
In submissions to the Court on the Notice of Motion, counsel for the plaintiff, entirely properly, did not argue against the proposition that there was no relationship of doctor/patient confidentiality with respect to the events of 19 January 2004, which precluded the solicitors for the defendant interviewing Dr Preddy.
However, counsel for the plaintiff did raise, as a matter of concern and reason, why the defendant should not be allowed to interview Dr Preddy at this stage, the proximity of the hearing date, 5 November 2018, the tortuous and complex history of this matter, including two adjournments of the hearing; and the fact that conclaves had already taken place between the principal experts.
Counsel raised the concern that if the interview was to result in a statement, which was to be tendered in evidence, or a wish by the defendant to call Dr Preddy to give evidence, or some such matter, that the hearing of the trial could once again be disrupted. In making that submission, counsel reflected what Ms Longmore had articulated in her affidavit. However, it seems to me that, whilst such concerns may seem to be real to the plaintiff, they are of no weight in considering the relief sought by the defendant.
In the first place, the defendant is entitled to be properly prepared for a hearing by exploring and taking proofs of evidence about all of the facts which might be raised in the course of the proceedings. Here, there is an obvious issue of fact, namely whether, had Dr Preddy arrived 15 minutes earlier than he did, thereby being present at the time of the plaintiff's birth, he would have carried out intubation of the plaintiff immediately. That fact depends upon the condition of the plaintiff when Dr Preddy first saw him.
There is also a need to obtain a factual explanation as to why the intubation occurred 12 minutes after Dr Preddy first arrived and observed the plaintiff. If it is, for example, that the plaintiff's condition did not mandate intubation, that might be an important matter for the defendant; but to engage in this is to indicate simply that there are legitimate reasons for the defendant to interview Dr Preddy, which may or may not result in any alteration to the present state of the evidence.
The second matter to be considered is this, that the need to interview Dr Preddy was raised as a consequence of the service of the report of Dr McPhee dated 10 January 2018 in July 2018. No explanation has been here proffered for that service after such an extended period, and I do not regard it as a matter which is directly relevant.
What is relevant, however, is that that report has generated the interest in interviewing Dr Preddy and it seems to me that the solicitors for the defendant have moved with reasonable dispatch, having regard to the nature of the proceedings, to seek to interview Dr Preddy, with the plaintiff's consent.
Thirdly, it will be a matter for case management for the trial judge, but not on this motion, for the Court to consider any application by the defendant to adduce evidence from Dr Preddy, either by statement or orally at trial. This Court is simply not in a position to rule on whether such a course would be appropriate or not and whether such a course might or should result in any adjournment of the proceedings, or vacation of the hearing date. Putting it differently, it is premature for this Court to consider any such matter.
In light of the position between the parties, whether the solicitors for the defendant seek to interview Dr Preddy about the events of 19 January 2004, and that course is opposed, it is appropriate for this Court to make a declaration generally, of the kind sought by the solicitors for the defendant.
[6]
Costs
The defendant claims the costs of this application. In so doing, he points to the entitlement of the defendant, through its solicitors, to interview Dr Preddy; the appropriately cautious way in which the solicitors went about the process of interviewing Dr Preddy by first notifying the solicitors for the plaintiff, in light of the later and ongoing treatment by Dr Preddy of the plaintiff; the blanket claim to resist such a course by the solicitors for the plaintiff on the basis of doctor/patient confidentiality, which was not soundly based; the failure by the solicitors for the plaintiff to reconsider their position, notwithstanding urging in correspondence from the solicitors for the defendant so to do; and then the attempt by the solicitors for the defendant to bargain its consent to this process.
In all of those circumstances, Senior Counsel for the defendant submits that it was necessary for this application to be brought and that the defendant, having succeeded on the application, should accordingly be entitled to an order for costs.
Counsel for the plaintiff resists such an application, pointing to the fact that if no obligation of confidentiality existed, as was asserted by the solicitors for the defendant, they were entitled to and could have and should have gone ahead with interviewing Dr Preddy, leaving the consequences of such an approach for the solicitor for the defendant to take such action, as he or she may have sought fit.
Putting it differently, counsel for the plaintiff resists an application for costs on the basis that there was no need for the solicitors for the defendant to bring this application and that a declaration from the Court was wholly unnecessary.
In my view, the submissions of senior counsel for the defendant should be accepted. This application was, in light of the attitude adopted by the solicitor for the plaintiff, a necessary one. It was necessary because of the assertion that such an interview would breach the duty of confidentiality. Given that the solicitors for the defendant have brought this application and succeeded, particularly in light of correspondence warning of the fact that it would make an application for costs, I see no reasons why an order for costs ought not be made.
[7]
Orders and Declarations
With respect to the Notice of Motion filed 4 September 2018, I make the following orders and declarations:
1. I declare that the defendant, through its solicitors, is not prevented from interviewing Dr John Preddy in relation to his observations of, and the treatment and care provided to, the plaintiff on 19 January 2004 in Wagga Wagga Base Hospital and any facts, matters and circumstances related thereto by any relationship of confidentiality between Dr John Preddy and the plaintiff to the extent that such relationship existed.
2. I order the plaintiff to pay the defendant's costs of and incidental to the Notice of Motion.
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Decision last updated: 12 October 2018