Doberer v Mid Western Area Health Service & Anor

PARTIES : Mid Western Area Health Service (First Defendant)

Stewart B Porges (Proposed Second Defendant) FILE NUMBER(S) : SC 20260/2002 Mr M J Cranitch SC (Plaintiff) COUNSEL : Mr G B Evans (Proposed Second Defendant) Dennis & Company (Plaintiff) SOLICITORS : Tress Cocks & Maddox (Proposed Second Defendant)

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

20260/2002 - JENNIFER DOBERER v MID WESTERN AREA HEALTH SERVICE & ANOR

JUDGMENT (Extension of time to commence proceedings - ss 60C & E; add defendant - hand operation) 1 MASTER: By notice of motion filed 22 April 2002, the plaintiff seeks firstly an order joining Stuart Porges as second defendant; and secondly, an order extending the time within which to commence proceedings against Stuart Porges pursuant to s 60C of the Limitation Act 1969 (NSW) (as amended) (The Act). The first defendant is Mid Western Area Health Service (first defendant). The proposed second defendant is Dr Stewart B Porges a general surgeon (second defendant). The plaintiff relied on her affidavit affirmed 10 May 2002 and the affidavits of Francesco Bellissimo sworn 21 November 2001 and Grant Christopher Todd sworn 22 April 2002. The defendant relied on the affidavit of Maria Brouwers sworn 8 November 2002. Both the plaintiff and Mr Todd were cross-examined at length. 2 The plaintiff was born in Orange on 2 June 1959 and is currently 43 years of age. She left school at the beginning of Year 10 and initially worked at her parents' home. After that, she had office jobs until she married at 17 years of age. She has seven children. The second youngest is severely disabled and requires 24 hour care. Prior to the accident/surgery, the plaintiff assisted her husband with the family farm which is located ½ hour north of Orange at Long Point. 3 On 27 September 1997, the plaintiff suffered a fall in the course of which she lacerated her right wrist on a piece of shale. On that day the plaintiff attended Orange Base Hospital. On 28 September 1997, she underwent an operation where her wound was explored and sutured. Thereafter the plaintiff developed marked pain, swelling, stiffness and bluish discolouration of the right hand. It is now alleged that Dr Porges performed the operation. The plaintiff alleges that the operation was performed in a negligent manner, the post operative care was inadequate and that she was not informed of the risks of the operation. 4 On 3 December 1997, the plaintiff underwent further surgery at Sydney hospital where it was discovered that the motor branch of the median nerve was divided and a resection neuroma of the nerve was performed. Thereafter the plaintiff has continued to suffer pain, swelling, stiffness and discolouration of the hand. The plaintiff has been diagnosed as suffering from Complex Region Pain Syndrome, Type II. In part, at least, this syndrome, which is rare, was caused by the shale injury itself. 5 On 14 August 2000, the plaintiff first consulted a solicitor. On 1 December 2000 the statement of claim was filed in the District Court. On 22 April 2002, this notice of motion was filed. 6 It is appropriate at this stage that I record that I observed the plaintiff carefully both giving evidence and being cross-examined, and regrettably she gave one troubling answer to a critical issue which I shall refer to later in this judgment.

The Law 7 The plaintiff relies on ss 60C and E of the Act in relation to the actions pleaded against the second to thirteenth defendants. Sections 60C and E fall within subdivision 2 of the Act, which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides: "Ordinary action (including surviving action) 60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines." 8 Section 60E provides: "Matters to be considered by the court

60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff's injury or loss." 9 In relation to ss 60C and 60E of the Act, Mason P in The Council of City of Sydney v Zegarac (1998) 43 NSWLR 195 at 197 referred to propositions which were uncontroversial. They are:

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

(3) In exercising the discretion, the court is required "to have regard to all the circumstances of the case" (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) "to the extent that they are relevant to the circumstances of the case".

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's second reading speech that are set out in the order judgments, and which McHugh J discusses in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 [139 ALR 1] at 552-553.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles. 10 Justice Powell in Zegarac stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA's further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do; and secondly, that, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant. 11 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 128, by the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 where their Honours stated that the effect of the High Court decision in Taylor's case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122. 12 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 13 The cause of action accrued on 28 September 1997. The limitation period expired on 28 September 2000. The application seeking the extension of time was filed on 22 April 2002 about 19 months out of time. 14 The plaintiff's explanation for delay is that it was not until about May 2002 when she read some answers to interrogatories that she realised that Dr Porges had performed the operation in 1997. The defendant submitted that the plaintiff had always known that the defendant performed the operation and it was always open to her to sue the correct defendant. On this basis, leave should be refused. 15 At paragraph 61 of her affidavit the plaintiff deposed that when she consulted Dennis & Co on 14 August 2000, and for some time thereafter, she believed that the operation had been conducted by the registrar of the hospital. Accordingly, she commenced proceedings against the first defendant as the authority responsible for the hospital. On 21 September 2000, the statement of claim was filed naming Mid Western Area Health Service as the only defendant. On 1 December 2000, an amended statement of claim was filed. No other defendant was added. Both of these documents were filed in the District Court. 16 In May 2002, the plaintiff was informed by her instructing solicitors that the hospital's solicitors had provided answers to interrogatories which suggested that Dr Porges had carried out the surgery and was not an employee of the hospital. The plaintiff's evidence is that this was the first time that she became aware that Dr Porges performed the operation. She had known that Dr Porges was present when the surgery was carried out. On 22 April 2002, the notice of motion was filed in this court seeking an extension of the limitation period. 17 The plaintiff's current managing law clerk, Mr Grant Todd, deposed in paragraph 8 of his affidavit that until the answers to interrogatories were served on the firm, he did not know that it would be suggested that the surgery was not in fact carried out by an employee of the defendant but Dr Porges who is an independent specialist general surgeon. 18 However, Mr Todd's evidence does not sit comfortably with that of the previous solicitor on record, Francesco Bellissimo. At paragraph 12 of Mr Bellissimo's affidavit dated, 21 October 2001, he referred to Dr Porges as "(the doctor who operated on the plaintiff)". So as at 21 October 2001, the plaintiff's former solicitor was of the view that Dr Porges operated on the plaintiff. It is unclear how or when the solicitor arrived at this understanding. Mr Bellissimo has since left the firm and was not cross examined on this issue.

19 Dr Wheen's file note dated 4 November 1997 (Ex 6) records "explore in op (Dr S Porges)". Dr Wheen, in his report dated 4 October 2001, stated under the heading "History": "She [the plaintiff] told me that she was transferred to the Orange Hospital and to the operating theatre where the wound was explored by Dr Porges". The plaintiff deposed in her Affidavit at paragraph 11 that the day after she was admitted to hospital she remembered that she was operated on and the hospital doctors were supplemented by Dr Porges. She also deposed at paragraph 12 of her affidavit that she did not know who performed the actual surgery but she thinks that it was done by the registrar and not by Dr Porges. The plaintiff was always aware that after she was discharged she went to see Dr Porges for a follow-up appointment so that the stitches could be removed (t 12-13). 20 However, the plaintiff contradicted the above evidence in cross-examination. In cross-examination, the plaintiff said the following: Q. Look ma'am, my question is, that by the time you saw Doctor Wheen on 4 November you were aware that Doctor Porges had carried out the exploration of your wound -- A. He had -- Q. Please, I have not finished my question. You were aware that Doctor Porges had carried out the exploration of your wound in the operating room, weren't you? A. When I went to Doctor Wheen? Q. Yes. A. Yes, I told him Doctor Porges had operated. …… Q. You certainly knew from what you have just said that by the time you saw Doctor Wheen in early November 1997 that it was Doctor Porges who had operated on your wrist, didn't you? A. No I didn't. I did not know then that Doctor Porges had operated on my wrist. Q. You knew that Doctor Porges had explored your wrist in the operating room, didn't you? A. No, I did not know that he actually did the operation. I was under the full understanding that I thought the Registrar had done it." (t 18.22-19.5) 21 When cross-examined about what she told Dr Wheen, the plaintiff said: "Q. And you told him that in the operating theatre the wound was explored by Doctor Porges? A. No, I didn't tell him that, Doctor Porges. I told him that I went in as a hospital patient. He said "What Doctor were you under?" I said "Doctor Porges", but I did not know who operated. I told him the Registrar looked after me the previous evening, and that is all I had spoken to. Q. Well, Mrs Doberer, I am suggesting to you that in fact you did tell Doctor Wheen that it was Doctor Porges who had explored your wound in the operating theatre? A. He asked what doctor I was under - what surgeon I was under up there and I said Doctor Porges, because when you are admitted to hospital you have to go under some visiting medical officer. You cannot go in under-- Q. When you saw Doctor Porges after the operation you knew that was because he was the surgeon who had operated on you, didn't you?" A. I did not know that he had operated.

(t.19.34 - 19.54) 22 Hence the plaintiff gave an inconsistent answer when she admitted that she told Dr Wheen that Dr Porges had operated on her wrist but then she resiled from that answer and proffered the explanation that she had thought that the registrar had actually performed the operation while Dr Porges was present during the operation and was the surgeon who admitted her to hospital.

23 In light of the inconsistent answer above, and the prior information the plaintiff provided to Dr Wheen shortly after the accident, I cannot accept the plaintiff's evidence that she was unaware that Dr Porges operated upon her. It is my view that the plaintiff told Dr Wheen in November 1997 that she had been operated upon by Dr Porges.

Extent to which delay caused prejudice - s 60E(b) 24 There is no evidence that the plaintiff's failure to commence the proceedings within the limitation period has had the result that any evidence has been lost. The hospital records are available. Dr Porges' medical records are available. There is no evidence of actual prejudice.

The time at which the injury became known to plaintiff - s 60E(c); time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(d), (e) and (h) 25 The plaintiff knew at the time she fell that she had severed an artery because she told her husband that she had done so and asked him to drive her straight to hospital. On 4 November 1997, Dr Wheen told the plaintiff that she had post traumatic reflex sympathy dystrophy affecting her right hand and wrist. (This condition is now known as chronic regional pain syndrome). On 17 December 1997, 14 January 1998, 11 February 1998 and 18 March 1998 the plaintiff had a series of guanethidine infusions and stellate ganghon blocks, which provided temporary relief of pain but the symptoms subsequently recurred. It is my view that the plaintiff knew immediately that she had suffered a serious injury to her dominant hand, and by December 1997 she knew that it was a permanent injury. It was Dr Wheen in 2001 and Dr Kendal in 2002 who suggested that the nerve may not have been properly explored prior to the operation and this may in part be responsible for regional chronic pain.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f) 26 There is no conduct by the defendant which induced the plaintiff to delay brining action.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 27 Following the operation, the plaintiff attended a number of medical specialists, beginning with Dr Porges on 15 and 28 October 1997. On 29 October 1997 she saw Dr Holmes, and following that, Dr Wheen on 4 November 1997. The plaintiff was referred to Dr Gronow at the Pain Clinic, and then in 1998 travelled to the Mayo Clinic in USA where she was seen by Dr Katarincic and Dr Wood. On her discharge from the Mayo Clinic, the plaintiff was referred back to Professor Cousins at the Royal North Shore Hospital. Later in 1998 she saw Dr Ditton, Dr Ryan and Dr Craddock. In 2001 she saw Professor Owen and, in 2002, Dr Milroy. The plaintiff sought legal advice on 14 August 2000. 28 The defendant submitted that the plaintiff does not have a real case to advance. The applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (NSWSC unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485; Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995); and Manfield v Heather [2000] NSWCA 36. There are numerous medical reports served which suggest that the injury caused the chronic regional pain syndrome. However, there is medical evidence which supports the plaintiff's case that had investigations been made, the palmer cutaneous nerve would have been excised and she would not have developed severe reflex sympathetic dystrophy. 29 In his report dated 4 October 2001 Associate Professor Douglass Wheen stated: "It is likely that the origin of the reflex sympathetic dystrophy/chronic regional pain syndrome was due to the nerve injuries to the thenar branch and palmar cutaneous branches of the median nerve sustained in the accident. It is most likely that the thenar nerve branch was divided in the original accident. I have seen a copy of the operation report from Orange Base Hospital (28/9/97) which states "recurrent branch not identified" not "the median nerve could not be identified". This recurrent branch is small and presumably was not seen in the original exploration at Orange Base Hospital, particularly if intra-operative magnification was not available. Nerve injuries are thought to be a causal factor in the development of chronic regional pain syndrome. However, the non-discovery of the nerve division per se (and therefore initial non-repair), may not have had any influence on the subsequent course of the dystrophy. However, in general terms, if there is a significant or deep open injury overlying the anatomical site of a major nerve, and there is any suspicion of any type of nerve injury, then that nerve should be explored and identified under appropriate operative conditions including adequate lighting, tourniquet and magnification, by an experienced surgeon. Repair can then be undertaken as indicated. If these conditions are unavailable the patient should be transferred in a timely manner, to a facility where this can be undertaken." 30 While Associate Professor Wheen does not specifically attribute any negligence toward Dr Porges, Dr Kendall in his report dated 18 February 2001 opined: "… One cannot, say with absolute certainty that the patient reflex sympathetic dystrophy might not have been the result of the initial injury rather than failure of adequate surgery subsequently, but on the balance of probabilities, had she been referred to a major centre where she would have come under the attention of a Hand Surgeon as a matter of urgency, as allegedly was first intended at the peripheral hospital, her median nerve probably could have been re-established since the Hand Surgeon would have been more skilled in mobilising the retracted section of proximal section of the nerve and the palmar cutaneous nerve probably would have been excised at the time. On the balance of probabilities (but not on the overwhelming balance of probabilities ) it would have saved her from developing a severe reflex sympathetic dystrophy. …" [The emphasis is that of Dr Kendall] 31 It is my view that there is some medical opinion that supports the plaintiff's case and that she has a real case to advance. However, the plaintiff's case is not a strong one. It is my view that the defendants have not suffered significant prejudice such that they will not obtain a fair trial. 32 In Itex Graphix Pty Limited v Elliott [2002] NSWCA 104 the Court of Appeal considered the approach the court should adopt when exercising its discretion under s 151D(2) of the Workers Compensation Act in a case where the respondent has not suffered prejudice by the delay and the applicant has not diligently pursued his or her claim. In that case, Ipp AJA, rejected the view that the real question to be answered was that posed by Toohey and Gummow JJ in Taylor, namely whether the delay had made the chance of a fair trial unlikely. Instead, the question that has to be asked is what is fair and just, or what the justice of the case requires. Itex however, dealt with a section that conferred a very broad discretion to grant leave to sue after the expiration of the limitation period. The discretion granted by ss 60C and E is not so broad. 33 However, after having taken the matters referred to in s 60E(a) to (h) into account it is my view that shortly after the operation the plaintiff was aware it was the defendant who operated upon her. In October 2001, her solicitor deposes that it was the defendant who operated upon her. In these circumstances it is my view that the plaintiff has not discharged her onus and I am not satisfied that it is just and reasonable to extend the limitation period under s 60C and E against the second defendant. 34 Costs are discretionary. In Wynter, Sheller JA at 147-148 stated that, in relation to costs, ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The plaintiff is to pay the defendant's costs. 35 The orders I make are:

(1) The plaintiff's application to extend the limitation period for a cause of action which arose on 28 September 1997 against the second defendant up to and including 22 April 2002 is refused

(2) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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