Finch v Rogers

Ms Barbara Versace (Defendant)

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

JUDGMENT (Extension of time to commence proceedings, ss 60C & E Limitation Act - alleged medical negligence) 1 MASTER By notice of motion filed 13 August 2002 the plaintiff seeks an order extending the time within which to commence proceedings pursuant to ss 60C and E of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 14 August 2002 and the affidavit of Niall Christopher Conolly sworn 9 August 2002. 2 The plaintiff is Andrew Finch. The defendant is Dr John Rogers, a urologist. The plaintiff alleges that the defendant was negligent in that he failed to recommend and/or ensure that the plaintiff had his tumour markers measured on a regular basis following surgery on 19 December 1996 to remove an embryonal cell carcinoma. According to the plaintiff, the defendant did not consult with him regularly enough and did not take tumour markers to monitor the progress of his condition when he knew or ought to have known that tumour markers are the major and paramount determinant of treatment outcome. Instead the defendant relied upon a CT scan taken following the plaintiff's surgery on 19 December 1996 even though it is difficult to detect minor levels of lymph node enlargement through the use of a CT scan. 3 Consequently, the plaintiff alleges that he was obliged to undergo 4 cycles of chemotherapy. This resulted in the plaintiff developing the symptoms of which he now complains, namely ototoxicity, which includes high tone hearing loss and tinnitus and peripheral neurotoxicity or a loss of sensation and strength in his hands, fingers and feet. The plaintiff had intended to follow a career path as a musician and now cannot do so.

4 For the purposes of this application I have taken the plaintiff's case at its highest. I observed the plaintiff carefully when giving evidence and being extensively cross-examined and I accept his evidence. At times, the plaintiff became visibly upset.

(1) The plaintiff was born on 10 July 1974 and is presently 29 years of age. He resides in Armidale.

(2) On 17 December 1996, the plaintiff attended Dr Mark Pierce, radiologist, for a scrotal ultrasound after he became concerned about a painless lump in his right testicle which he had noticed for a couple of days previously. (3) On 19 December 1996, the plaintiff consulted the defendant who examined him, reviewed the results of the scrotal ultrasound and performed blood tests. These tests demonstrated tumour markers as Beta HCG of 79U/L (normal range 0-5) and Alpha-feto protein of 2.3 ug/L (normal range 95% less than 4, 99% less than 8). The defendant informed the plaintiff that he had an anterior slightly exophytic testicular mass in the lower pole of the right testicle, measuring approximately 10mm in long axis. It was concluded that the mass was consistent with a tumour of the right testicle. The defendant advised the plaintiff to have the right testicle removed (an orchidectomy). The plaintiff accepted this advice.

(4) On the evening of 19 December 1996, the defendant performed an orchidectomy on the plaintiff at the Mater Private Hospital, Crows Nest. Histology from the orchidectomy demonstrated the presence of a tumour, specifically an infiltrating embryonal cell carcinoma. A left testicular biopsy was also undertaken and no abnormality of the left testicle was reported.

(5) After the operation, the defendant spoke to the plaintiff's parents. Explaining that, although in the majority of cases after an orchidectomy procedure there are usually no further problems, as a precautionary measure the plaintiff would need to have a CT scan in 4 to 5 days time. The purpose of the CT scan was to determine whether there was any evidence of spread of the disease to any lymph nodes. On 23 December 1996, the plaintiff obtained a referral for a CT scan from his general practitioner, Dr Brian Connor.

(6) On 24 December 1996, the plaintiff, accompanied by his father, went to Armidale Radiology to have a CT scan investigation which was undertaken by Dr William Barter, a radiologist. After the scan, while the plaintiff was dressing, Dr Barter went out to the waiting room and spoke to the plaintiff's father. He said words to the effect "The scan is clear". The plaintiff and his father then took the report and CT scan to Dr Connor's surgery. On the way there, the plaintiff opened up the scan envelope and read the report. He was pleased as, from his reading of it, nothing negative was mentioned.

(7) Not long after arriving home, Dr Connor rang and spoke to the plaintiff's father. Dr Connor said words to the effect "The report is fine. Dr Barter's report concludes that there is no evidence of metastatic disease on the CT scan films. Call down and collect the films and report." An appointment was made for the plaintiff to see Dr Rogers for Friday 17 January 1997. This was later changed to 23 January 1997 as the plaintiff's father needed to go away for work on 17 January 1997.

(8) On 23 January 1997 the plaintiff attended Dr Rogers. While Dr Rogers was looking at the scan films he said words to the effect "This doesn't look right. I'm suspicious about a lymph node." Dr Rogers then sent the films downstairs to another radiologist for a second opinion. Dr Rogers said words to the effect "You'd better go and have a blood test." He then directed the plaintiff to a pathology laboratory or collection centre about two doors up from him in the same centre. The plaintiff had the blood test and returned to Dr Rogers's waiting room. Dr Rogers called the plaintiff and his family into his room. He told the plaintiff that he wanted him (the plaintiff) to go downstairs to see another radiologist Dr Harding-Smith and have another CT scan and then return the next day to see the results of the blood test and the CT scan.

(9) After having both tests, the plaintiff returned to Dr Rogers who said words to the effect "Yes, what I thought was suspicious has grown and your markers are very high. In the circumstances, you are going to need chemotherapy and I would like you to see Dr Boyer." The plaintiff saw Dr Boyer within a few hours after having seen Dr Rogers.

(10) The plaintiff at all times believed until March 2002 that the opinions of Dr Rogers and Dr Boyer, which were to the effect that the CT scan films of 24 December 1996 had not been read correctly by Dr Barter and that Dr Barter was therefore negligent, were correct.

(11) On 21 March 2002, Mr Niall Connolly, the plaintiff's solicitor, telephoned him and said that he had been conferring with Counsel and Professor Doust, an expert radiologist, and that Professor Doust was of the opinion that the CT scan had been read correctly by Dr Barter and that Dr Harrington another radiologist consulted on behalf of the plaintiff had expressed a similar view. Mr Connolly also informed the plaintiff that Counsel was of the view that there may instead have been negligence on the part of Dr Rogers.

(12) On 22 March 2002, the plaintiff attended a conference with Mr Connolly and Counsel. He inspected documents produced on subpoena by Dr Rogers. These indicated that Dr Rogers had apparently tried to contact him on 17 January 1997 concerning the need to have his tumour markers checked, but was unsuccessful.

(13) On 13 August 2002, the statement of claim and notice of motion were filed.

The Law 5 The plaintiff relies on ss 60C and E and ss 60G and 60I(1)(a)(i)(iii) of the Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Sydney City Council v Zegarac (1998) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; McLean v Sydney Water Corporation [2001] NSWCA 122; and Milperra Marketing Pty Ltd & Ors v Bayliss [2001] NSWCA 315. The onus rests with the applicant. In addition to satisfying the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. 6 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." 7 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." 8 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 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 Taylor .

(5) Since s 60C creates a judicial discretion, appellate review is restricted by well-known principles. 9 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. 10 The principles concerning prejudice have been considered in Wynter the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 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. 11 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 12 The limitation period for that cause of action expired on 19 December 1999. The motion was filed on 13 August 2002 over 2½ years out of time. I accept that with the passing of time, there will be presumptive prejudice. The defendant did not put on evidence to demonstrate actual prejudice.

13 The plaintiff's explanation for delay is that he accepted his solicitor's advice and on the basis of reports from Dr Rogers (file note dated 13/9/99 Ex O and letter dated 20/9/99 Ex N) and Dr Boyer (letters dated 29/11/99 and 12/5/00 Ex B and W respectively) he accepted that it was the radiologist, Dr William Barter, who had been negligent in that he had failed to read the CT scan taken on 24 December 1996 correctly. Mr Hirsch, the plaintiff's solicitor, was advised by Dr Rogers himself and Dr Boyer that the CT scans taken on the 24/12/1996 were suspicious of metastases and ought not to have been reported as normal.

14 However, In a report dated 28 August 2001 (Ex Y), Dr Doust did not agree with their view and advised that the initial CT examination conducted by Dr Barter was "probably, a normal examination". Dr Doust also stated that "in light of the history of testicular malignancy early follow up examination should be considered". However in a letter dated 14/9/01, Dr Rogers commented on the report of Doctor Doust and stated that in the circumstances he would "have continued to monitor" the plaintiff at the routine time of one month. He also considered that "early follow up" meant that the plaintiff would need to be re-examined in one month. Following this, in a letter dated 5 October 2001 (Ex Z) Dr Tim Harrington, a radiologist, advised the plaintiff's solicitors that the CT examination taken following the plaintiff's surgery on 19 December 1996 could overlook small lymph nodes and that it findings as a baseline examination would be "equivocal". This report also did not give much support to the views of Dr Rogers and Dr Boyer.

15 On 15 March 2002, the report of a joint conference of expert witnesses comprising Professor John Levi and Dr Boyer (report dated 15 March 2002 Ex C) agreed that, had serum makers been taken on 24 December 1996 and 1 January 1997 and these showed a progressive rise, a minimum of 3 cycles of chemotherapy and a maximum of 4 would have been advised by them. They also concurred in the opinion that if markers had been taken on 24 December 1996 and 1 January 1997 their readings would have been significantly less than what they were when they were actually taken on 23 January 1997. At this time, the plaintiff's solicitors examined Dr Rogers' file produced on subpoena to the court. A file note of Dr Rogers of the 17 January 1997, showed that he had attempted to contact the plaintiff in relation to the need for serum markers to be taken.

16 It was the illumination of these March events, that the plaintiff's legal representative's focus turned from the CT scan to the timing of the taking of the markers. Up until then, they and the plaintiff had held the view that the CT scan was the prime diagnostic tool for the presence of a growth. In March the plaintiff's advisers also recommended to the plaintiff that, in light of the expert's reports, his case against Dr Barter should be discontinued. 17 In a letter dated 19 March 2002 (Ex X) Associate Professor Boyer stated that had he seen the plaintiff on 1 January 1997 he would, on the "balance of probabilities", have recommended 3 cycles of chemotherapy. In a letter dated 21 March 2002 (Ex AA), Dr Harrington reviewed his earlier report and stated that the general limitations of CT detecting "lymph nodes should be common knowledge to the person receiving the report". In a report dated 25 March 2002 (Ex A), Dr Vaughan stated that the plaintiff's serum markers should have been taken at least twice weekly after surgery in conjunction with chemotherapy. He also indicated that CT scans are not the major determinants of treatment outcome and that the plaintiff on current consensus should only have undergone 3 cycles of chemotherapy. It was only when the plaintiff received the report of Dr Vaughan that he understood that Dr Rogers may have been negligent.

Extent to which delay caused evidence to be lost - s 60E(b) 18 There is no evidence that the plaintiff's failure to commence the proceedings within the limitation period has meant that any evidence has been lost.

The time at which the injury became known to plaintiff - s 60E(c) 19 It was apparent to the plaintiff as of 24 January 1997 when he consulted Dr Rogers, following a further CT scan and blood test, that his carcinoma had metastasised and that his condition had deteriorated following his orchidectomy on 19 December 1996.

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) 20 The defendant submitted that the plaintiff himself was aware in 2000, if not earlier, that his outcome might well have been better had the defendant regularly arranged to take tumour markers following his surgery. It was submitted that the plaintiff could have brought action sooner as he had all the necessary material. The defendant's counsel submitted that the plaintiff's solicitors had obtained a copy of Dr Rogers's records by October 2000. They should have inspected those documents earlier than March 2002. 21 However as stated previously, it was the culmination of the material referred to earlier together with the report of Dr Vaughan, which focussed upon the importance of the timing at which the tumour markers were taken, that made the plaintiff aware that he had a case against the defendant. While the plaintiff's solicitor did a photocopy of Dr Rogers' records in October 2000 and inspection of those records at an earlier date would have made the plaintiff's solicitors aware of the doctor's file note of the 17 January 1997, it is unlikely that their significance would have been appreciated by the plaintiff's legal representatives at that stage. As the defendant himself had advised the plaintiff in relation to potential negligence against another medical practitioner, it would not have been expected that his records would have contained any significant entries. While the plaintiff could have joined Dr Rogers as a defendant in the earlier proceedings, he did not do so because he was unaware of Dr Rogers's alleged negligence and could not mount a case against him.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f) 22 In the letter dated 20 September 1999, Dr Rogers stated that from his review of the CT scan taken on 24 December 1996 there did appear to be a "shadow in the inter aorto caval area, suspicious of lymph node". Earlier in the file note dated 13 September 1999, Dr Rogers had noted that the shadow he detected was suspicious of metastases. Then, in another letter to the plaintiff's solicitors dated 25 November 1999, he told them that, had the spread of the carcinoma been noticed earlier, the plaintiff's treatment could have been more expeditious. The plaintiff's solicitors accepted his advice that the CT scan had not been properly reported and put in train a course of action directed towards obtaining specialist radiological medical opinion to support the plaintiff's claim. 23 Hence it was in part the advice of Dr Rogers which set in motion the legal action against Dr Barter, which took from September 1999 to March 2002. The actions of the defendant had a significant part to play in the delay in commencing these proceedings against him.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 24 The initial medical consultations undertaken by the plaintiff and the reports obtained have been referred to earlier in this judgment. Of importance to these proceedings, however, it is recorded that the plaintiff first consulted a solicitor in August of 1999. On 5 October 2001 the plaintiff's solicitors obtained Dr Harrington's report and on 21 March 2002 his further review of that report. In late February and early March of 2002 counsel was briefed. In March 2002, the plaintiff's solicitors received the report of Dr Vaughan and on 21 March, 22 March and 25 March the plaintiff's solicitors and counsel were able to confirm in a series of attendances upon Doctors Doust, Harding-Smith and Hazan respectively that the original CT films showed no visible metastases. On 25 March 2002, the plaintiff obtained a report of an independent clinical oncologist. However five months then elapsed before the plaintiff issued his claim against Dr Rogers on 13 August 2002. 25 I turn now to consider whether it is just and reasonable to extend the limitation period. The defendant does not dispute that the plaintiff has a real cause to advance as to his negligence. However, as previously stated, the defendant's counsel submitted that the limitation period should not be extended because the plaintiff's solicitors had all the material before them with which to bring a case against Dr Rogers before the time of the expiration of the limitation period but failed to. 26 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 151(D)(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 chanced of a fair trial unlikely. Instead, the question that has to be asked is what is fair and just, or what does the justice of the case require. 27 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 ss60C and E is not so broad. The facts in this case also differ from Itex. Unlike Itex the plaintiff in this case did not make a conscious and informed decision not to sue the defendant, but rather did not bring his claim against Dr Rogers because he was unaware that Dr Rogers should have taken regular tumour markers. He had accepted the advice of Dr Rogers and pursued a claim against Dr Barter. 28 As previously stated the defendant did not rely upon any evidence to establish actual prejudice, although I accept with that with the passing of 6 years there will be presumptive prejudice. It is my view that the defendant will be afforded a fair trial. I am satisfied that it is just and reasonable to extend the limitation period pursuant to ss 60C and E the plaintiff is granted an extension of the limitation period from 19 December 1999 to 13 August 2002. 29 Costs are discretionary. In Wynter, Sheller JA 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. However, as it was the advice of Dr Rogers that had a significant role to play in the delay in commencing these proceedings, it is my view that his opposition to this motion was unreasonable. The appropriate order for costs is that each party pay its own costs. 30 The court orders that:

(1) Leave is granted to the plaintiff to extend the limitation period pursuant to ss 60C and E from 19 December 1996 up to and including 13 August 2002. (2) Each party is to pay its own costs.

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