Fan v South Eastern Sydney and Illawarra Area Health Service

Supreme Court of NSW|2010-02-19|Before: Harrison J

CITATION : Fan v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 123

DECISION : Defendant's notice of motion dismised.

CATCHWORDS : PRACTICE & PROCEDURE - UCPR 31.36 & 12.7 - where plaintiff alleged delay by defendant in performing urgent cholecystectomy leading to poor outcome - application to dismiss proceedings for want of compliance with requirement to file and serve an expert's report with the statement of claim - whether any report served satisfied the rule - where delay in the proceedings - whether failure by plaintiff to conduct the proceedings with due despatch - defendant's notice of motion dismissed.

CASES CITED : Salzke v Khoury [2009] NSWCA 195

PARTIES : Wei Fan by his tutor Yue Wang (Plaintiff) South Eastern Sydney and Illawarra Area Health Service (Defendant)

COUNSEL : N M H Kirby (Plaintiff) P J Rooney (Defendant)

SOLICITORS : Lamrocks (Plaintiff) General Insurance Law Department (Defendant)

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

2008/289228 Wei Fan by his tutor Yue Wang v South Eastern Sydney and Illawarra Area Health Service

JUDGMENT 1 HIS HONOUR: The defendant seeks an order that the proceedings be dismissed pursuant to UCPR 31.36(3) or alternatively UCPR 12.7. I shall deal with these in turn. 2 Rule 31.36 provides relevantly as follows: " 31.36 Service of experts' reports in professional negligence claims

(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting:

(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate." 3 The proceedings were commenced by statement of claim filed on 8 April 2008. That document has been twice amended since. The current version was filed on 2 July 2009. None appears to have been prepared by a legal practitioner even though the plaintiff has engaged a solicitor from time to time and is currently represented by counsel. Another amendment to the pleadings has been foreshadowed. This is not surprising as none of the statements of claim filed so far is adequate for its intended purpose. 4 What emerges from the material before me is that the plaintiff wishes to sue three hospitals for negligence. It seems that on 20 January 2007 he was diagnosed with some form of gall bladder complaint when he attended St George Hospital. He was thereafter said to have been "transferred between three Sydney public hospitals" and that this led to a delay in his treatment. On 13 March 2007 he underwent a cholecystectomy at St George Hospital. The plaintiff suffered weight loss thereafter and developed paranoid schizophrenia allegedly as a result. His vision and hearing also decreased. The way in which the treatment provided to the plaintiff allegedly sounds in a cause of action against anybody is not made plain. There is some suggestion that delay in treatment is implicated as a complaint but this is by no means clearly stated. 5 I have been informed that the plaintiff relies upon a (relatively) large number of medical reports prepared by various practitioners in support of the contention that he has complied with the rule. Not all of these reports are necessarily or obviously helpful to the plaintiff in these proceedings and either he or those purporting to act in his best interests have been conspicuously guileless in providing them to the defendant and to the Court in the circumstances. However, in my opinion it is unnecessary to look further than the opinions expressed by one of the medical practitioners consulted for this purpose. 6 Dr Ross C Smith is an hepato-pancreatico-biliary and upper gastro-intestinal surgeon. He reported on 11 February 2009 that the plaintiff was admitted on 20 January 2007 to the St George Hospital with a four-day history of feeling unwell with upper abdominal pain, distension and jaundice. A diagnosis of obstructive jaundice was confirmed. There was no evidence of pancreatitis at that time. The plaintiff had a distended abdomen with an enlarged and palpable gall bladder. His white cell blood count was normal. 7 The plaintiff was reluctant to stay at the hospital. Because of high bilirubin the hospital surgical team wished to arrange for an ERCP but the plaintiff requested a cholecystectomy, as he did not want to undergo the risk of having an ERCP. 8 On 23 January 2007 the ward staff went to discuss the arrangements with the plaintiff but he had already discharged himself from the hospital. No reason was stated. However, he returned later the same day with a further episode of epigastric pain. An immediate ERCP at Prince of Wales Hospital was arranged. This was unsuccessful. A repeat ERCP was undertaken on 30 January 2007 and this demonstrated a normal cholangiogram but no filling defects. He was referred to a gastroenterologist for a cholecystectomy. This was not required urgently as his condition was mild. He was therefore discharged for re-admission on an elective surgical list. 9 On 31 January 2007 Dr Jamini, the gastroenterology registrar at St George Hospital, indicated that an arrangement had been made for the plaintiff to undergo a laparoscopic cholecystectomy as an elective procedure. Dr Smith offered the following opinion: "There is no doubt that he was debilitated by this illness and that the severity of his illness was not fully considered by those looking after him. This debility would have contributed to his subsequent course but it is difficult to point to a specific deficiency in his care apart from a lack of recognising that this patient was very ill and should have been scheduled for a laparoscopic cholecystectomy." 10 On 9 March 2007 the plaintiff was admitted to Sutherland Hospital following a fall where he had bleeding from his ear. He had sustained an undisplaced longitudinal fracture through the left mastoid process extending into the auditory canal and the middle ear cavities. (A CT scan on 28 April 2007 subsequently demonstrated a moderate degree of generalised atrophy of the brain but with normal grey and white matter differentiation with no oedema. A subsequent MRI scan on 3 May 2007 indicated the presence of ischaemic brain in the occipital lobe corresponding to a lesion in the right posterior cerebral artery. There was also now evidence of mild hydrocephalus). 11 Shortly after his admission to Sutherland Hospital arrangements were made for the plaintiff to have a laparoscopic cholecystectomy at St George and to bring forward the original date for this from 30 March 2007. After review by multiple doctors the plaintiff underwent this procedure on 15 March 2007. The gall bladder findings were not consistent with the severity of the illness but this was not remarkable because when there are virulent organisms in the gall bladder there can be a systemic illness without histological evidence of necrosis or gall bladder rupture. 12 Dr Smith made the following observations: "I understand… that his weight was 71kg before this illness and fell down to 44kg prior to cholecystectomy and it is considered that this weight loss resulted in weakness which increased his risk of falling. He does subsequently appear to have a neurological condition which is very complex and difficult to ascertain. I do not think it is possible to associate the acute cholecystitis with the long term neurological illness. Clearly however he had a severe episode of cholecystitis which was sufficient to reduce his serum albumin and lymphocyte count and increase the serum bilirubin, GGT and alkaline phosphatase. It may have been associated with the passage of a small stone down the bile duct but cholecystitis can cause these findings. He did request a cholecystectomy when he was first admitted to St George Hospital. On looking at his file, one can only think that this would have saved him and the hospital system a large amount of money and may have prevented this illness progressing to falling attacks and to deterioration in his general health. A weight loss of 28kg in a 72kg person is a very serious weight loss and this was associated with low albumin, low lymphocyte counts but indicative of severe nutritional deficiency. Nutritional deficiency syndromes are able to interfere with neurological function being associated with many different vitamin deficiency syndromes and the debility of severe weight loss." 13 Dr Smith continued: "The question of whether this is negligent or not, is not very clear. The system has not looked after this person to this patient's best interest and a more rapid management would have resulted in a much better outcome. Nonetheless, he was assessed by highly qualified people who made a judgment that he should have an ERCP for cholecystectomy and this is a practice which is widespread in our community and would have to be regarded as acceptable amongst a peer group of surgeons.

No negligence can be placed on this case but there did not appear to be sufficient recognition of the severity of his illness and the length of time that he had not been able to eat an adequate diet and this may well have had some impact on his neurological function. Factors such as language difficulty, cultural differences and worry about financial implications of the illness in a person who did not have full time employment all contributed to the difficult decision pattern. I think the treating team should have explained to the family how ill he was and expedited the laparoscopic cholecystectomy. However, there was no point where one can say his treatment was outside practice in the practice undertaken in the community." 14 In a later report dated 4 June 2009, Dr Smith offered the following opinion: "The features of acute cholecystitis did not settle until he had recovered from the cholecystectomy on 15 March 2007. I think there is a reasonable grievance that a patient who presents to our major teaching hospitals should have been denied a simple diagnosis and treatment that would have averted a weight loss of 32kg and consequent neurological and metabolic disorders." 15 Dr Smith concluded that report with a summary, of which the following extract formed part: "The reason it took almost 2 months rather than 72 hours to have a cholecystectomy for indications clearly stated in basic textbooks seems difficult to understand in a modern society considered to be first world. However, I am aware of the pressures on operating theatre time and how delays in scheduling are a reflection of inadequacies of surgical facilities. I think that administrators have to take some responsibility for the difficulty Mr Fan faced in seeking surgical treatment. I have difficulty in assessing how strongly the surgical team made their request for operating time.

The court appears to be looking for an incidence of negligence. I cannot find such an incidence. But I do think there is significant lack of recognition of the severity of the illness suffered by Mr Fan and that the facilities did not facilitate a simple procedure which would have averted his poor outcome." 16 Despite the terms of his earlier report, Dr Smith's report dated 20 August 2009 contained the following: "I consider there was a breach of duty of care allowing a patient to lose such a large amount of weight for a condition which is easily treated by a standard surgical procedure. I understand that on 28 February 2007 the family, despite being financially not well off, paid Prince of Wales Hospital $500 to undergo cholecystectomy on that day. However, despite having accepted this money the procedure was cancelled." 17 Dr Smith addressed some further specific issues in this report in the following terms: "In respect of the causal relationship between breach of duty and the alleged damage, it is clear that this patient had persisting deterioration in his general health from 20 January to 15 March when surgery was eventually undertaken and this undue delay was clearly causally implicated with the severity of his subsequent chronic disabilities. He gained weight shortly after the cholecystectomy demonstrating that the cholecystitis was causing his weight loss. The severity of his illness and the degree of weight loss should have been reason to expedite surgery. If this had been undertaken early in the illness these long term disabilities would not have evolved.

Therefore I believe this patient had a breach of duty of care to recognise the severity of his illness and to allow such a person to undergo such a severe weight loss, that metabolic and neurological complications including psychotic depression, which eventually left him with chronic ill-health and which at this stage is likely to be irreversible. There is a clear causal relationship between acute cholecystitis, the delay for surgery and the secondary long term disabilities." 18 It is unnecessary to refer in any detail to Dr Smith's final report dated 30 July 2009. 19 At my request, counsel for the defendant prepared an extremely helpful chronology of the medical and legal events that arguably bear upon the present inquiry. It is clear from the detail of that chronology that the defendant will maintain that much of what befell the plaintiff stemmed from his own conduct, including the fact that he discharged himself from hospitals under the control of the defendant without informing the medical staff of his intention to do so and in circumstances where it was patently against his best medical interests. The defendant has also sought to emphasise that the medical reports served by the plaintiff do not speak with one voice on the issues that are called up for consideration by rule 31.36. In this respect the defendant made the following submission: "9. The plaintiff's medical evidence when read in total can point to no breach of any duty of care by any of the hospitals that the plaintiff has presented to. Furthermore, the plaintiff's medical evidence (despite the volume of evidence obtained and referred to in the attached chronology) can point to no causal relationship between any such alleged breach of duty and any alleged damage suffered by the plaintiff. With respect, the plaintiff has failed to satisfy the necessary requirements of the UCPR." 20 As earlier indicated, one of the problems in analysing the issue of whether or not the plaintiff has complied with the rule flows from the wholly inadequate nature of the pleadings. Far from being able to compare the medical evidence with a properly pleaded and recognisable cause of action, the expert opinions are to some extent without any proper legal framework or structure within the context of which they can meaningfully be analysed or considered. 21 It is reasonably apparent that the plaintiff wishes to allege that he presented to the hospital with an acute condition for which he should have been, but was not, treated in a timely way. He suffered longer than he should have as a result and arguably went on to sustain additional complicating conditions. Undoubtedly there will be a significant debate in due course about the legal and medical issues of causation in these circumstances and about the nature and the extent of any loss for which the defendant might arguably be liable. The approach to the issues referred to in rule 31.36 taken by Dr Smith is slightly ambiguous in some respects but the overall thrust of his analysis leads me to conclude that the opinions he expresses are sufficiently clear to satisfy the rule. 22 Moreover, despite the difficulties with the case as pleaded, or on one view in the absence of a pleaded case, I consider that there are insufficient grounds to dismiss the proceedings pursuant to rule 31.36(3). In Salzke v Khoury [2009] NSWCA 195, Basten JA made some particular remarks at [113] - [114], and also at [122] - [123], which are pertinent in the circumstances of this case and bear repeating: "[113] I agree with the orders proposed by Ipp JA, and with his Honour's reasons. Some further comments are apposite in relation to the underlying purpose of Uniform Civil Procedure Rules (NSW), r 31.36 and hence the considerations which should inform its application.

[114] These matters are of importance because, as applied by the Judicial Registrar in the present case, the rule has operated to cause dismissal of a claim which was brought within the limitation period, which was not a hopeless or patently unmeritorious case and which did not warrant dismissal for want of prosecution.

[122] While r 31.36 may have multiple purposes, particularly when understood in a broader context, its primary purpose appears to be to discourage the commencement of unmeritorious litigation. In that sense it supplements other rules which have a similar purpose, including the requirement that a civil claim for damages cannot be commenced (or defended) by legal practitioners without certifying that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim (or the defence) has reasonable prospects of success: Legal Profession Act 2004 (NSW), s 347(2). Rule 31.36, by contrast, is one-sided: it does not require a health professional to file expert evidence supporting the defence case.

[123] This understanding of the rule does not support a view that the filing and serving of expert reports supporting the claims with respect to breach of duty of care, the general nature and extent of damage, and the causal relationship between breach and damage, is a mere formality. However, questions of compliance must take into account, for example, the consideration noted by Lord Woolf that early expenditure on the quantification of damage may well be unjustifiable. Similarly, they should take into account the acknowledged difficulties and delays likely to be faced by a plaintiff seeking to obtain such reports. Accordingly, the relevant opinions should not be scrutinised too finely in an attempt to demonstrate that they do not satisfy the rule. A rule designed to diminish the number of cases being commenced which have no reasonable prospects of success should not be turned into an unreasonable hurdle to be surmounted by plaintiffs with legitimate claims. Nor should such a rule provide a further procedural opportunity for defendants (through their insurers) to delay resolution of legitimate claims on the merits, or increase the costs faced by an indigent plaintiff with a legitimate claim. The courts must be astute to ensure that procedural reforms serve their intended purpose and do not become a vehicle for subversion of a purpose they were designed to promote." 23 This is a case where in my assessment the relevant medical opinions should not at this stage be scrutinised too finely in an attempt to demonstrate that they do not comply with or satisfy the rule. I cannot conclude upon the presently available material that the plaintiff's case, as I understand it, has no reasonable prospects of success. 24 Rule 12.7 is in the following terms: " 12.7 Dismissal of proceedings etc for want of due despatch

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit." 25 In support of the proposition that the plaintiff has not prosecuted the proceedings with all due despatch, the defendant emphasised the following several matters. First, the proceedings were commenced some 22 months ago and even now the plaintiff has not filed a statement of claim in an appropriately recognisable form. An amended version to supersede all previous versions has been foreshadowed, as indicated earlier, but is yet to materialise. The proceedings remain vulnerable to dismissal until a statement of claim complying with the rules is produced. 26 Secondly, the plaintiff has retained no less than five separate solicitors and several counsel who no longer appear for, or represent, him. This fact is not so much an example of a failure by the plaintiff to prosecute the proceedings appropriately as it is a submission by the defendant that there is no real likelihood that they will be appropriately or expeditiously conducted in the future. 27 Thirdly, the proceedings have been before the Court on several occasions and little progress has been made in finalising the production of supporting medical evidence. Orders and directions have allegedly been breached or ignored by the plaintiff. The defendant's requests for particulars have also not been answered. 28 The defendant submitted that the proceedings are languishing while the plaintiff seeks to garner medical support for his case. However, it will be apparent from what I have decided with respect to rule 31.36 that the plaintiff now has that medical support. The real issue is what form the proceedings will take when the latest amended statement of claim is produced. I should observe that there has been extant between the plaintiff and the defendant a commendable spirit of cooperation concerning attempts by the plaintiff, mostly without legal advice or the specificity of purpose that such advice usually provides, to secure access to the hospital records dealing with his several admissions and treatment. From my observation it appears likely that those documents will be given to the plaintiff shortly without the need for orders of this Court. That is to be encouraged although directions to facilitate this process can be given if the circumstances ultimately make that necessary. 29 I am not satisfied that the plaintiff has failed to prosecute these proceedings with the degree of alacrity that the rule requires. No doubt the proceedings would have been in a more advanced stage if the plaintiff had been willing or able to retain a solicitor throughout. There may be some prospect that he will decide to do so from now on. 30 The defendant has foreshadowed that it would like an opportunity to argue the question of costs of this application, whatever the outcome, as well as the costs associated with the plaintiff's intention to amend the pleadings. There may be other issues that are worthy of further submission and argument in due course. In these circumstances I shall make the following orders: 1. I dismiss the defendant's notice of motion dated 11 December 2008.

I will hear the parties on the question of the costs of the motion and of the costs of any other aspect of the proceedings at some date suitable to the parties and to the Court to be arranged in consultation with my Associate.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Legal Profession Act 2004(NSW)

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