Prejudice
51 Before an extension of time can be granted to the plaintiff, this Court must be satisfied by the plaintiff that the justice of the case requires that the exercise of discretion should be in her favour. This application for an extension of time should be refused if the effect of granting the extension would result in significant prejudice to the defendants: see Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541 and Holt v Winter (2000) 49 NSWLR 128 and in particular per Sheller JA at 147. See also Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207 (at para 88).
52 In the much cited judgment of McHugh J in Brisbane South his Honour said at 555:
"Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action."
53 A presumption of prejudice to the third and fourth defendant would exist in this case by reason of the lapse of time since the expiration of the limitation period. This case concerns events that occurred in 1982.
54 However, neither the third nor the fourth defendant relies simply on presumptive prejudice. Each defendant has introduced evidence of actual prejudice.
55 The third defendant swore an affidavit dated 17 August 2000 addressing the issue, and he was cross examined on this affidavit. I accept the third defendant's evidence to be truthful and reliable. Dr Besser said that he has a very limited recollection of the plaintiff but he does recall seeing her before surgery and he has a vague (and correct) recollection that the plaintiff was a Jehovah's Witness. It is also his recollection that the plaintiff was adamant that she wanted no blood transfusions.
56 The first indication Dr Besser was given that the plaintiff intended to sue him was in February 2000. The third defendant had earlier given two reports to Mr Billing dated 12 November 1996 and 16 December 1996, but the letters from Mr Billing that prompted that reports did nothing to alert Dr Besser to possible action against him. Indeed, I accept that when Mr Billing wrote to Dr Besser he did not then contemplate action against him, and wrote:
"Mrs Fletcher has asked us to pass on her thanks to you for your treatment of her as she regards you as having saved her life and is most grateful to you for that."
57 I accept for the purposes of this application that the third defendant is dependent upon the hospital records of the fourth defendant. Those records contain the third defendant's typed notes dated 30 September 1982 in relation to the craniotomy and third ventriculostomy procedure that he performed. The notes for that date signed by the third defendant are detailed but there are shortcomings elsewhere in the hospital records, not the least of which is that whilst there are reports in those notes of CT scans and of an angiogram, the films themselves upon which those reports were based are no longer in existence. Dr Besser acted on the films rather than the reports, interpreting the films for himself. He said that he did so to determine his management of his patient. Dr Besser said that it was not uncommon for him to speak to the radiologist, in this case Dr Lamont. He cannot recall whether he spoke to Dr Lamont about the films or the reports relating to the plaintiff and I accept that Dr Lamont, who has recently been seriously ill, has no recollection of his involvement (see the affidavits of Roslyn Jones sworn 16 May 2001 and the affidavit of Williams Hawson sworn 1 March 2002).
58 I also observe that the third defendant said it was his practice to talk about difficult cases, and he considered the plaintiff's case to be a difficult one, with senior medical practitioners, namely Dr Segelov, Dr Vanderfield and Dr Johnstone. Dr Segelov and Dr Vanderfield are now deceased and Dr Johnstone has retired. The third defendant has no recollection as to whether he did speak about this case with any of those peers.
59 On the hearing of this application the missing films were the focus of much attention, and it is appropriate that I consider the significance of these missing films. Having regard to Dr Fitzgerald's opinion underpinning the plaintiff's claim, the various heads of negligence which the plaintiff will seek to maintain are to be found in para 17 above. The missing films are relevant to the matters identified in para 17.
60 According to the third defendant, the anatomy of the ventricular system would have influenced his decision as to the type of surgery to be undertaken. The size of the ventricles and their shape, particularly the shape of the third ventricle, determined the suitability of the procedure which he opted to undertake.
61 Dr Besser was cross examined about the sufficiency of the pre-operative scan report (as opposed to the films themselves) and in the course of this cross examination gave the following evidence (T 70-71):
"Q. What different things would you have seen on it which would have led to you adopt shunt surgery in her case?
A. The size of the ventricles, the shape of the third ventricle. Whether there was any anatomy which would have persuaded me not to go ahead with a ventriculostomy.
Q. The size of the ventricles?
A. Yes.
Q. They are well described in the CT scan, aren't they?
A. They are.
Q. The largeness of the ventricles is one of the matters which you say which decided you to embark upon this course of surgery, rather than a shunt?
A. Yes.
Q. Doctor, have a look at the report to answer any questions?
A. Yes. (Report shown). Well, it says that there is marked hydrocephalus. It doesn't tell me how big the ventricles are.
Q. It goes on to say the size and shape of the ventricles, it would suggest it would have been present for a long time?
A. Yes
Q. That suggests they are all enlarged?
A. Yes, but it doesn't tell me how large they are.
Q. How small would they have to be before you consider doing a shunt procedure?
A. The point is if they are huge, really enormous, then I would favour ventriculostomy over shunt.
Q. How small would they have to be before you would consider a shunt?
A. Oh, well, that is a matter of surgical judgment. I can't give you an exact measurement.
Q. But they would have to be quite small?
A. Presumably smaller than this lady.
Q. In terms of the shunt procedure, as I understand your evidence, what you didn't like about the shunt, at that time, was that it presented unnecessary mechanical complications?
A. Over the patient's lifetime, yes.
Q. So it really, in terms of an elective procedure when you elect one or the other, the size of the ventricles probably had very little to do with your decision, didn't it?
A. No, I disagree. It had a lot to do with it."
62 In re-examination Dr Besser was asked the following questions and he gave the following answers:
"Q. You were asked a number of questions about the risks associated with the two alternative procedures of a shunt or a ventriculostomy. Are there also competing advantages of the two procedures as well?
A. Yes. Well, that was, I'm sure that part of my decision-making is that the advantage of a third ventriculostomy, although the initial risk is higher, if it succeeds as it does in the majority of patients then that patient is cured.
Q. And you had a number of questions put to you about whether or not it was really necessary for you now to see the scans, as opposed to read the reports. Does the viewing of the scans assist in memory in terms of putting yourself back in the position you were in, in 1982, more than the written reports?
A. Oh, yes, it would. Very much so. 20 years is a very long time to recall the features and the thoughts and the decision-making at the time. It would help a lot."
63 Professor Fearnside gave evidence on this application also and he was cross examined at some length, having earlier provided a report to the fourth defendant's solicitors dated 25 February 2002. In that report Professor Fearnside responded to a number of specific question and they included the following responses to the following questions:
" (a) What matters are relevant to a decision to undertake the procedure upon Joanna Fletcher as actually performed by Dr Besser compared to a shunt procedure as proposed by Dr Fitzgerald?
The primary consideration is of the risk benefit analysis of a third ventriculostomy via a craniotomy as compared to a shunt procedure. In 1982, such a ventriculostomy would have been performed via a craniotomy although in later years, endoscopic procedures became the operation of choice. A successful third ventriculostomy would provide a fistula between the internal ventricular system and the external subarachnoid space. A shunt procedure is a formation of an internal body fistula from the cerebral ventricle to, generally, the abdominal cavity. Shunt tubing may become blocked, fracture or angulate and valve and flow controlling may malfunction. This might result in recurrence of the previous symptoms of raised intracranial pressure and require further operations. A third ventriculostomy, generally, would be a 'once only' procedure. Once the internal fistula in the floor of the third ventricle is made blockage would be quite unusual. A third ventriculostomy did require a formal craniotomy with all the possible complications for such a procedure. A shunt is, on balance, less invasive and a long established treatment of aqueduct stenosis in the adult.
(b) Can a determination now be made on the probabilities on the information contained in the records of the RPA (in the absence of x-ray film and CT film) whether the procedure adopted by Dr Besser is to be preferred to a shunt procedure or vice versa. If not what factors are relevant to such determination which are not available because of the lapse of time?
The decision to perform a third ventriculostomy or a shunt procedure is a surgical decision, made at the time by the surgeon having regard to all factors prevailing at the particular time and this does include the radiological investigations. The absence of the radiological investigations does make it more difficult to provide comment. However, in 1982, both shunt procedures and third ventriculostomy were acceptable procedures for treatment of adult aqueduct stenosis. The choice largely depends upon the preferences of the surgeon." (Emphasis added)
64 I accept that Professor Fearnside holds the opinions above expressed and I accept the expertise of this witness. Those responses lent support to the third defendant's emphasis on the importance of the films themselves.
65 Then it is to be alleged that the third defendant should have acted urgently to evacuate the haematoma on 30 September 1982. A scan was carried out on 30 September 1982 and reported on in the third defendant's notes of that date. The scan, according to the third defendant, showed the presence of a large, deep intracerebral haemorrhage in the right hemisphere but away from the operative site and deep in the right parieto-occipital region. The scan was followed by an angiogram on the following day. In his supplementary written submissions, Mr Ingram argued that the third defendant was not prejudiced by the absence now of the CT scan because obviously he saw it on 30 June 1982, as his notes indicate, and he was influenced to obtain an angiogram. The only purpose of this could have been to establish whether the haemorrhage may have been caused by some vascular disorder, so that the CT scan had performed its function. I do not accept this submission that prejudice has been negatived by this sequence of events for reasons which I shall state.
66 Dr Besser cannot recall now why a procedure to attempt the evacuation of the haematoma was not undertaken immediately, but in his affidavit he has stated reasons why the postponement was appropriate. I accept however that the third defendant is now at a disadvantage by reason of relevant memory loss in determining why he acted as he did and when he did.
67 The hospital notes reveal that a surgical evacuation of the haematoma was scheduled for 7 October 1982 but was then postponed because of the plaintiff's fever. The third defendant says he cannot explain why he would have proposed the operation on 7 October when his present inclination would be to wait ten days before attempting to evacuate a haematoma of this type. The third defendant has explained the reason for this delay to postpone surgery for ten days is to enable the bleeding to solidify. However, the third defendant cannot recall what reasons he had for not acting earlier than he did. As it transpired, because of the fever the further surgery was not undertaken until 12 October 1982.
68 The defendant said, and I accept, that he would have been influenced in the decision that he made on 30 September 1982 by the films that had been taken that day.
69 In the report of Professor Fearnside, to which I made earlier reference, he was asked to consider what factors were relevant to a decision to undertake "immediate and urgent evacuation of the haematoma" after the procedure on 30 September 1982, and in response Professor Fearnside identified a number of factors, one of which was the clinical condition of the patient and another of which was the radiological appearance of the haematoma with particular regard to size and site. As to the second of these factors, Professor Fearnside wrote:
"The clinical condition of the patient is the most important factor. Firstly, this relates to the neurological examination at the time and has regard to the level of consciousness and focal neurological disorder. The second factor is as to whether the patient's neurological condition is stable over a short or moderate period of observation or whether there is a deterioration either in the level of consciousness or worsening of the focal neurological signs.
A second important factor is the radiological appearance of the haematoma with particular regard to size and site. The CT scan reports a large haematoma deeply placed. In 1982, there would be a division of views as to whether such a haematoma should be treated surgically or not. Further, if a surgical option was selected, the time of the surgery was debatable. It could be argued that early surgery would provide the patient with the greatest chance of reversal of focal neurological signs. However, it would have been equally argued that the irreversible damage causing the focal neurological signs occurred at the time of the haemorrhage and that surgery would be reserved for a progressive deterioration in the condition of the patient due to raised intracranial pressure. When the haematoma was identified on 30th September 1982, there would have been little liquifaction of the lesion and solid clot would have been present within the brain substance. The argument for late drainage of such a haematoma relied upon the observation that, a haematoma liquefies with the efflux of time and can then be drained through a burr hole or trephine craniotomy rather than a larger craniotomy."
70 When he was cross examined, Professor Fearnside had put to him the report on the CT scan of 30 September and Professor Fearnside said the description in that report "does not provide me with much information of how deep it is" (T 81). He was asked then about the angiogram on 1 October and whether that assisted him in determining whether there was a window of opportunity to have minimised the neurological damage, but in his opinion the CT scan "would probably provide more information" (T 81).
71 It seems to me upon consideration of the relevant evidence that the CT scan films of 30 September are of importance when one considers not only whether the third defendant should have operated immediately to address the haematoma but also as to what the prospects of such a procedure may have been. The precise size and location of the haematoma was particularly relevant to those issues.
72 It is convenient at this point to consider the submissions by Mr Cranitch and by Mr Ingram in the further written submissions concerning the missing records to which I have been referring.
73 It has been submitted that to the extent that the third defendant placed reliance upon the pre-operative procedures, it would not be necessary for a fair trial for the films themselves to be available. The diagnosis of aqueduct stenosis was not challenged and the plaintiff would not be challenging the circumstance that the ventricles were enlarged. Her case to be advanced through Dr Fitzgerald is simply that the procedure which was carried out was never appropriate and that the only appropriate procedure, having regard to the plaintiff's condition, was the shunt procedure. So it is submitted the issues are really black and white as to the selection of the operative procedure, and this being so the films are unnecessary.
74 I do not accept this submission. Whilst it may be the plaintiff's case that the operation which the third defendant decided to perform was never appropriate and that the plaintiff's condition should have been addressed by a shunt, I do not understand it to be the third defendant's position that a shunt ought never to be preferred. Mr Ingram drew attention to what the third defendant wrote to Mr Billing in November 1996 (annexure "B" to the affidavit of the third defendant sworn 17 August 1996). There the third defendant described ventriculostomy as "a preferred option for treatment of hydrocephalus secondary to aqueduct stenosis because it does not lead to dependence on a mechanical shunt system in the long term." However, contrary to the thrust of Mr Ingram's submission, it was not the third defendant's evidence that a shunt should never be undertaken. The operation of choice depended upon the size of the ventricles and the most appropriate way of establishing their size would have been by reference to the films. What the films would have showed would, unquestionably, have been of importance to the assessment of Dr Besser's evidence and to the assessment of his decision to perform the operation undertaken.
75 Professor Fearnside supports the evidence which Dr Besser gave to this effect. I referred earlier to the opinion of Professor Dan to the effect that ventriculostomy is "an excellent choice" where there are large ventricles (para 29 above). It is by reference to the films themselves that the size of the ventricles could be proved.
76 If this case was to proceed, no doubt the third defendant would seek to qualify an independent expert or experts to comment upon the appropriateness of the procedure he performed. Had the films been available it would have been important for any expert qualified to consider them before expressing his opinion. Absent such films, any such expert would be disadvantaged, and so too would the third defendant.
77 Turning to the absence of the films of 30 September, Mr Cranitch submitted that the plaintiff would not be challenging the seriousness of the haemorrhage or that it was present deep in the brain. The plaintiff would not be challenging the difficulty of the task that would have been presented in evacuating that haematoma. The issue about the haematoma was not where it was placed but whether it should have been left for as long as it was, or whether it should have been evacuated immediately. He submitted that whether the film was available or not did not resolve this question. What Mr Cranitch argued was that the plaintiff had lost the chance of a more successful evacuation procedure with less residual damage.
78 Whilst recognising that the plaintiff would seek to present her case in that way, I do not consider that lessens the importance which the films would have had. Those films would have been relevant not only to the assessment of the chance of success of immediate surgery but also to whether there was any real chance at all, and it follows as to whether immediate surgery would have been warranted.
79 In my opinion, the third defendant would suffer a real prejudice at trial because the films I have considered above are not available.
80 It is next alleged that the third defendant was negligent in proceeding with the operation on 30 September once, having performed the craniotomy, he first observed the blood ooze. The third defendant is now unable to recall what the factors were that bore upon his decision to continue with the procedure. In cross examination Mr Cranitch asked the third defendant these questions and elicited these answers (T 60):
"Q. Would not the presence of blood when you opened the dura have caused you to have stopped to ascertain the extent of the hematoma and its whereabouts?
A. Look, I can't remember my thoughts at the time but I saw some oozing of blood. I presume that wasn't enough to stop me from carrying on with the operation but I can't remember.
Q. Would you agree with me that if there was a subarachnoid hemorrhage, which you seem undoubtedly to have diagnosed, it was ill-advised to have proceeded further with the surgery that you embarked upon?
A. My interpretation was that it was due to the operation that was done two days earlier. The craniotomy was in the vicinity of the frontal burr hole and ventricular drain.
Q. But that doesn't really answer my question. You might have known where you thought it was coming from but you had no idea of the precise nature of it, nor of its extent, did you?
A. I can't remember my thoughts at the time, I just know that it wasn't enough to stop me from proceeding."
81 In his submissions Mr Cranitch argued that prejudice has not been proved on this issue and that this is not an area in which films assume any relevance. The third defendant's notes of 30 September record what he saw and the third defendant has the benefit of his notes as to this. He made a surgical judgment at the time, that much is evident, and there is no explanation he could advance other than that he considered it appropriate at the time. Mr Cranitch summarised the submission in this way: that the third defendant was not going to suffer prejudice because he failed to recollect why he embarked upon "indefensible conduct".
82 It does not follow from the fact that the third defendant does not now recall why he proceeded with the operation that he did not perceive at the time that there was good reason for continuing with it. The third defendant is prejudiced by not now being able to recall why he chose to proceed.
83 Both Mr Cranitch and Mr Ingram, in addressing the issue of prejudice, sought to minimise the significance of the missing films in the decisions reached and the procedures undertaken by the third defendant. For the reasons stated, I am not persuaded by those submissions. Moreover, as earlier observed, it is to be expected that the third defendant would seek to qualify an independent expert to express opinions bearing upon central issues in this cause if the matter was to proceed to trial. I referred earlier to the disadvantage any such expert would face, absent the films, when considering the appropriateness of the operation performed by the third defendant (see para 76 above). Moreover, any expert considering the allegation that the third defendant should have acted urgently to evacuate the haematoma would be disadvantaged by the absence of the films, consideration of which would have been relevant in determining not only whether the third defendant should have operated urgently, but whether had he done so the neurological damage could have been reduced, and if so to what extent. I am mindful in this regard of the evidence of Professor Fearnside considered earlier at paras 69-70.
84 In my opinion, the third defendant has proved that there would be significant prejudice to him if this claim against him was now allowed to proceed.
85 Evidence was adduced by the fourth defendant raising additional matters for consideration on the issue of prejudice. By reference to the hospital records, a list of doctors identified as being involved in the treatment of the plaintiff was prepared (see Annexure A to the affidavit of William Hawson sworn 1 March 2002). Six doctors were thus identified and five of those were located. It suffices for present purposes to observe that none of those doctors has any relevant recollection of the plaintiff or of her treatment (again see the affidavit of William Hawson sworn 1 March 2002). The sixth of these doctors was Dr Surachai, and according to the hospital records he was the doctor who assisted Dr Besser at the operation on 30 September 1982. Mr Hawson has been unable to locate Dr Surachai and the New South Wales Medical Board has no record as to his present whereabouts.
86 Whether there was a breach of the duty of care owed by the third defendant to the plaintiff is to be determined by reference to the circumstances and standards of 1982, and it is to be expected that proof of such circumstances and standards would less readily be available than proof of current circumstances and standards. The evidence establishes that at least two of the third defendant's peers in 1982 are now deceased. I refer to Dr Segelov and to Dr Vanderfield.
87 I am acutely conscious of the fact that the refusal of the plaintiff's application will have the consequence that her claim against the third and the fourth defendants will be at an end. However, it is not my task to balance the plaintiff's prejudice if her application is refused against the prejudice to the third and the fourth defendants if the application is granted: see Brisbane South (supra). Before I can make the order sought by the plaintiff, I must be satisfied that it is just and reasonable to order that the limitation period should be extended. It seems to me for the reasons stated that the third and fourth defendants have established that to grant the plaintiff's application for extension would result in significant prejudice to the defendants. It follows that the application must be dismissed.
88 There are motions for summary dismissal pending in this Court on the application of each of the third and the fourth defendants. Those defendants each seek orders for the review of the decision of Assistant Registrar Howe allowing the joinder of those defendants in the cause.
89 It is in the circumstances unnecessary to proceed with those notices of motion. Mr Cranitch properly acknowledged that if the plaintiff was unsuccessful with the extension application not only should her notice of motion be dismissed but an order should be made pursuant to Pt 13 r 5 that the proceedings against those defendants should be dismissed.