This matter is before me today to deal with a Notice of Motion filed by the plaintiff on 21 August 2020 seeking leave to rely upon two reports of Associate Professor Raftos, an emergency physician, dated 10 February 2020 and 24 June 2020.
The defendant opposes the application on the basis that first the reports were served late and outside the timetable provided by the Court and Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and second, the reports are irrelevant and otiose to the issues in the case. The relevant issues have already been the subject of expert reports served in the proceedings within the timetable set by the Court. A/Professor Raftos' expertise is as an emergency physician and Mr Dickson's case does not arise out of treatment in an emergency department.
For the reasons that follow, I have decided that I should grant leave to the plaintiff to rely on those reports.
[2]
Background
The proceedings were commenced by way of Statement of Claim on 4 April 2017. Mr Dickson was a patient at Armidale Hospital, having been admitted on 21 February 2015 with inflammation in his right knee. On 26 February 2015 he began to suffer, and he says, display, symptoms of a stroke. He alleges that there was delay in diagnosing the symptoms and delay in referring him for appropriate intravenous thrombolytic therapy and/or transferring him to a specialist unit for treatment.
Mr Dickson says that as a result of these failures, he sustained an injury to his brain and loss of sensation and movement on the right side.
It is fair to say that over the years since the cause of action commenced, there has been multiple timetables set by the Court requiring the service of liability and damages evidence.
Included in the evidence served by the plaintiff on the issues of liability and causation are reports from neurologists, Professor Brew and Professor Levi.
In response to these reports, the defendant has served reports of two neurologists, Dr Simon and Professor Herkes.
The issues joined in those reports indicate that on the plaintiff's side of the evidentiary fence, diagnosis should have been considered more rapidly and a potential referral process engaged, the available findings should have been sufficient for firm diagnosis, and he could potentially have been transferred to Tamworth Hospital within the time window for a significantly higher chance of a more favourable recovery, namely 4.5 hours, with the administration of a particular medication, Altaplace, to treat the stroke.
The evidence relied upon by defendant was to the effect that the management of Mr Dickson was competent, and that a better outcome was unlikely. The evidence does not make it clear when the stroke occurred and therefore when the thrombolysis could have been administered to be effective. Distance, the unavailability of MRI scanning, and difficulty of assessment made it unlikely that even if the plaintiff was transferred, he would have been offered thrombolysis. Even with ideal treatment, the data did not support the statement that Mr Dickson would have a greater than 50% probability of an improved outcome.
I interpolate here that loss of chance of a better medical outcome is not compensable. Mr Dickson has to demonstrate a probable better outcome with specific evidence as to what that better outcome would have been: Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12.
On 26 February 2020 there was a directions hearing before the Registrar. Orders were made by consent that the plaintiff file any Notice of Motion and affidavit in support seeking leave to file an Amended Statement of Claim by 4 March 2020 with a return date being provided for the Notice of Motion and a timetable for the defendant to serve its liability and quantum evidence by April and June 2020 respectively.
The solicitor for the defendant noted in her affidavit that at that directions hearing nothing was said by the plaintiff about having retained A/Professor Raftos for a fresh opinion and nothing was disclosed about this in the series of emails leading up to the directions hearing.
I accept that on 26 February 2020 the report of A/Professor Raftos arrived and it was served on 27 February 2020.
A further report was obtained from A/Professor Raftos to address Dr Simon's opinion. That report, dated 24 June 2020, was served by the plaintiff on 16 July 2020.
[3]
Submissions
The defendant's position, fairly and candidly put by counsel, Mr Kettle, was that whilst the defendant does not say it will suffer prejudice that it cannot meet, as it can obtain a report in response, the Court should not allow into evidence reports that may well be irrelevant given they are based on the activities and/or standard of care relevant to an emergency department as opposed to the circumstances prevailing here, which was that the plaintiff was a patient on the ward.
Mr Daley, counsel for Mr Dickson, argued that the expert evidence on the table prior to A/Professor Raftos, speaks from the perspective only of appropriate neurological care and outcomes, but the substance of A/Professor Raftos's opinions are to establish the extent to which certain practices are applicable in hospitals at a practical level and to be applied by doctors who are not specialist neurologists. Accordingly he deals with the matter from a different perspective and is qualified to provide that practical opinion about treatment of strokes in a hospital setting, and whether and what should be the content of treatment protocols in hospitals where specialist MRI and thrombolytic therapy is not available.
In his written submissions Mr Daley sets out specific points of opinion in A/Professor Raftos's first report that are different in nature and content to those already on the table from the neurologists. These include that there has been evolution in the management of acute stroke in recent years because of the introduction of thrombolytic therapy for acute occlusive stroke, that hospitals around the world have had a uniform approach to the assessment of management of these matters, that the initial assessment of a patient with possible stroke involves certain assessments, and that any patient should be considered to have a stroke until proven otherwise, that certain action should be taken by nursing staff and medical staff in response to signs such as those that Mr Dickson presented with and what the standard assessment and treatment should be. Ultimately A/Professor Raftos concluded that in this case, the hospital failed to act appropriately and in a manner that was widely accepted as competent in that they failed to organise a timely transfer to the Tamworth Hospital acute stroke unit.
The opinions A/Professor Raftos sets out in his reports are relevant to the issues that will be before the Court at trial, and it would be a grave step to take at an interlocutory stage to exclude such opinions in a case where a hearing date has not yet been fixed and will not be fixed until probably late 2021. No compelling reason has been advanced by the defendant to warrant a step of this drastic nature.
Section 56 of the Civil Procedure Act 2005 (NSW) requires just, quick and cheap resolution to be facilitated of the real issues in dispute but that should include making sure all the relevant evidence and opinions are on the table. Whilst there can be tension between the obligations under s 56, which involves a discretionary assessment, generally and in the circumstances of this case, that assessment must be informed by the just determination of the issues in dispute: Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [36] to [47].
Justice requires that Mr Dickson be permitted to put forward the case that he wishes to advance, particularly where the damages might be significant. Costs associated with the additional reports are not disproportionate and the proceedings are still in the case management phase. The reports will not delay the matter in any practical way and are unlikely to significantly add to the costs of the proceedings.
[4]
Decision
I am persuaded by the arguments put forward by Mr Daley.
Although commenced nearly 4 years ago, the proceedings are still effectively in the case management phase.
The reports of A/Professor Raftos have the potential to bear significantly on questions of breach of duty of care, standard of care and causation. The particular relevance and weight that should be given to the opinions of A/Professor Raftos (and others) are a matter for the trial judge, not a matter for preliminary, and in my view premature, determination on an interlocutory basis by a judge other than the trial judge.
The objects of the Civil Procedure Act set out in s 56 are better served by allowing Mr Dickson to rely on the reports of A/Professor Raftos. The real issues in dispute are the appropriate standard of care in the circumstances, whether there was a breach of that standard, and, what was caused by those breaches, if any. A/Professor Raftos's reports touch on all those issues in a way differently informed to the expert reports served in the proceedings authored by the neurologists.
It is somewhat artificial to suggest that because A/Professor Raftos is an emergency physician, his opinion is limited to treatment and decision making that occurs in the emergency department at a hospital. It is common sense that emergency physicians can be, and are, deployed to advise and assist as emergency medical practitioners in hospital wards if and when the need arises.
Mr Kettle acknowledged that those who instructed him could meet the case by obtaining further expert reports and of course it would be appropriate to have, as a condition of leave being granted to the plaintiff, that the defendant would have a reasonable period within which to obtain and serve any expert opinions in response.
I am not satisfied that the defendant suffers any prejudice other than that there may be a need to obtain evidence in reply to the matters raised in the reports of A/Professor Raftos. In my view this is often part of the usual course in matters of this type.
Whilst other decisions have dealt with the proper construction of r 31.28 of the UCPR which on one analysis suggests that leave should not be granted unless there are "special circumstances", Mr Kettle took the pragmatic approach that the Court has discretion to extend the time for compliance with obligations under the rules pursuant to UCPR r 1.12.
I agree with and adopt that pragmatic approach. In any event, to the extent that I needed to conclude that there were special circumstances, in my view the special circumstances are first that the matter is still in the case management phase, the breach and causation aspects have some complexity to them and the reports obtained include relevant information that would assist the Court in understanding the issues and practicalities relevant to duty and breach and so those reports should be allowed to be deployed by the plaintiff in the proceedings.
To the extent that r 31.28 could be read as requiring something more, I agree with and adopt the comments of Cavanagh J in Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433 at [23] to [29].
[5]
Costs
Given the plaintiff's success on the application, costs follow the event and I order the defendant to pay the plaintiff's costs of the motion.
[6]
Orders
I make the following orders:
1. I grant leave to the plaintiff to rely upon the expert reports of A/Professor Raftos dated 10 February 2020 and 24 June 2020.
2. The defendant is to pay the plaintiff's costs of the notice of motion.
[7]
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Decision last updated: 16 March 2021