Fletcher v Hamilton-Gibbs & another

Introduction 1By notice of motion filed on 8 March 2011, the second defendant seeks orders in the alternative that the proceedings be dismissed, the statement of claim be struck out or that the proceedings be permanently stayed. These orders are sought principally on the grounds that the plaintiff has not prosecuted the proceedings with due despatch or that their continuance amounts to an abuse of process. 2By notice of motion filed on 11 October 2012, the first defendant seeks similar orders on a similar basis.

The plaintiff's case 3The plaintiff alleges that in the period from February 1975 until 1982, she sought and obtained advice and treatment from Dr Hamilton-Gibbs (the first defendant), a general practitioner who practised at the Young Boorowa Street Medical Practice in the town of Young in central western New South Wales. She alleges that she reported headaches, weakness and involuntary falls of increasing severity during this period. In 1982 she consulted Dr Durey (the second defendant), a general practitioner in the same practice, for advice and treatment and reported the same symptoms, together with an additional symptom of incontinence. 4It is common ground that on 17 September 1982 the plaintiff consulted Dr Whiley, a general practitioner in Cowra who also specialised in obstetrics and gynaecology. Dr Whiley conducted a thorough neurological examination as a result of which he suspected that she might have multiple sclerosis. He referred her, by letter dated 20 September 1982, to Dr Gordon, a neurologist, who rejected multiple sclerosis as an diagnosis but postulated various other conditions, one of which was hydrocephalus, with which the plaintiff was ultimately diagnosed. 5She was admitted to Orange Base Hospital and then transferred to Royal Prince Alfred Hospital (RPA) where she came under the care of Dr Michael Besser, a neurosurgeon. 6After her admission to RPA on 23 September 1982, the plaintiff had a CT scan of her brain. 7On 28 September 1982 Dr Besser carried out a burr hole and ventricular catheter insertion with a ventriculogram. 8She was diagnosed with congenital hydrocephalus consequent on aqueductal stenosis. Hydrocephalus is an excessive volume of cerebrospinal fluid on the brain, which gives rise to an increase in pressure on the brain and, if not relieved, to brain damage. Cerebrospinal fluid circulates around the brain, or meninges, and is ultimately absorbed into the blood stream. It is produced in the lateral, or horn-shaped, ventricles. It passes to the third ventricle and then through the cerebral aqueduct, or aqueduct Sylvius, through a fibrous sheath known as the tentorium that separates the upper brain from the lower brain. It then passes to the fourth ventricle. 9The aqueduct Sylvius can become narrowed either through congenital narrowing, as in the plaintiff's case, or by reason of a tumour or other lesion. Congenital stenosis typically occurs slowly over a long period of time. 10Where stenosis occurs, production of cerebrospinal fluid exceeds absorption which causes cranial pressure to rise. In children less than two years old, this pressure is relieved by the expansion of the skull but in older patients, whose skull bones have fused, the pressure must be relieved operatively. 11The build-up of pressure affects the brain and, ultimately, manifests itself in neurogenic incontinence, ataxia and headaches, each of which is an indication that brain damage as a result of increased cranial pressure has occurred. 12On 30 September 1982 the plaintiff underwent a right frontal craniotomy for a third ventriculostomy to create an opening to overcome the obstruction to the flow of cerebrospinal fluid from the third to the fourth ventricles. The operation revealed a cerebral haemorrhage. 13Post-operatively the plaintiff was found to be decerebrate. Decerebration occurs when part of the upper brain is pressed through the hole in the tentorium, compressing that part of the brain and the structures beneath the tentorium. Decerebration causes the removal of the higher centres of the brain by cutting across the brain below the cerebrum so that cerebral functions are eliminated. Subsequently a CT scan showed the development of a large deep intracerebral haemorrhage in the right parietal-occipital region which subsequently developed into a haematoma. 14The plaintiff alleges that since 1 October 1982 she has suffered brain damage, intracerebral haematoma, dense left hemiplegia resulting in paralysis in both left limbs and anxiety and depression. 15The plaintiff's case against the defendants is that, had they discharged the duty of care they owed to her, she would have been referred to a specialist neurologist or neurosurgeon earlier and she would not have suffered the cerebral haemorrhage which caused brain damage and hemiplegia. It appears to be common ground that had the plaintiff not suffered a cerebral haemorrhage she would not have suffered hemiplegia, although there may have been some brain damage consequent upon the increase in cranial pressure from the aqueduct stenosis. 16Breach, causation and damage are in issue. The defendants allege that the symptoms reported to them and the signs present on examination were not such as to require them, as a matter of reasonable care and diligence, to refer the plaintiff to a specialist for neurological review. They submitted that the plaintiff cannot establish to the requisite standard that had she been referred at an earlier time, the cerebral haemorrhage would not have occurred since it could have occurred as a result of sudden ventricular decompression, caused by the ventriculostomy itself or it could have been caused as a known complication of the insertion of a tube through the brain tissue to reach the ventricles. In that latter instance, the timing is not determinative because the plaintiff would have had to have the ventriculostomy in any event to overcome the aqueduct stenosis. The defendants submitted that any breach established against either or both of them was not causative of loss. Further they submitted that it is not possible to say that the risk of decompression would have been materially lower had she been referred to a specialist earlier. 17The defendants relied, in part, on the following passage in a report of Dr Gordon, treating neurologist dated 17 October 1991 served by the plaintiff: ". . . Firstly the appropriate treatment which would have been entertained if a proper diagnosis had been made early in her case would not have differed from the treatment that she was given in Prince Alfred. It is pure supposition to say what Mrs. Fletcher's condition would be now had she undergone appropriate treatment earlier than she did. If she did not have the cerebral haemorrhage as she did then I would expected her to have very little in the way of physical and mental disability. The haemorrhage may have occurred in any case but I have said previously that I believe that the haemorrhage was made more likely to occur because of inappropriate delay in appropriate treatment." 18They also relied on the following passage in the report of Dr Dan, neurologist: "It is difficult to say that the intracerebral haemorrhage was more likely to occur because of an inappropriate delay in a surgical procedure." 19The defendants submitted that the issue of damage is also vexed since the plaintiff may have suffered permanent brain damage solely as a result of the hydrocephalus, before she suffered the cerebral haemorrhage. As referred to above, brain damage is indicated by ataxia, dementia and incontinence. The timing of onset of those symptoms (as distinct from the reporting of same, which is relevant to breach) needs to be determined before any assessment of damage, and accordingly damages, can be made, even if breach and causation were otherwise determined in the plaintiff's favour.