Gray v Farbenblum & 2 Ors [2002] NSWSC 74 | Case summary

2 It is alleged as against the proposed third defendant that on or around 15 December 1983, the plaintiff, (then aged 30), presented at the emergency unit of Royal North Shore Hospital (the hospital). The hospital noted the plaintiff's presenting symptoms as severe headache and photophobia and made a provisional diagnosis of viral encephalitis. 3 The plaintiff alleges that the proposed third defendant, the hospital, was negligent in its diagnosis and treatment. It is alleged that the third defendant firstly failed to take into account adequately or at all the plaintiff's history; secondly, failed to examine the plaintiff properly or at all; thirdly, failed to consider adequately or at all diagnoses alternative to viral encephalitis; fourthly, failed to diagnose correctly the plaintiff; fifthly, failed to conduct a cerebrospinal fluid examination; sixthly, failed to conduct a lumbar puncture; and seventhly, failed to conduct a CT brain and angiography. (These allegations are contained in the amended statement of claim). The Law 4 The plaintiff relies on s 60G and s 60I (1)(a)(i)(iii) of the Limitation 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; 129 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997); Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195; Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128; McLean v Sydney Water Corp [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. The most important issue to be determined in this case is that of prejudice caused by the delay in commencing proceedings. 5 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such a period as it determines". 6 The plaintiff relies upon s 60I(1)(a)(iii). 7 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff:

(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 8 On 15 October 2000 the plaintiff had a conversation with her solicitor Peter King. Mr King told the plaintiff "We have received your report from ort expert witness, Mr Petty. He thinks that your 1983 admission to Royal North Shore Hospital may have involved a misdiagnosis. He suspects that the symptoms from which you were suffering were consistent with the AVM, not with viral encephalitis." 9 On about 17 November 2000 the plaintiff had a further conversation with Peter King. He said words to the following effect. "We have received a report from Mr Petty. He is of the opinion that the staff at Royal North Shore Hospital misdiagnosed your AVM in 1983 and that your symptoms when admitted were consistent with a sub-arachnoid haemorrhage resulting from the AVM rather than viral encephalitis. He believes that had you had a lumbar puncture or CT scan at that time, your AVM could have been diagnosed and treated and you would not have suffered the stroke which you eventually had in October 1997." Prior to the first conversation the plaintiff was not aware that there may have been a misdiagnosis by the hospital in 1983. 10 The plaintiff submitted that up until 15 October 2000 she was unaware of the connection between the alleged misdiagnosis of her condition as viral encephalitis in 1983 and the personal injury she suffered. The proposed third defendant rightly conceded that the plaintiff had passed through the s 60I(1)(a)(iii) threshold. 11 It is my view that it was not until 15 October 2000 at the earliest that the plaintiff became aware that the acts and omissions of the hospital in 1983 and particularly the hospital's failure to conduct a cerebrospinal fluid examination, a lumbar puncture, a CT scan or an angiography in 1983 was connected to the injuries she later suffered. This knowledge was acquired within the time stipulated by s 60I(1)(b). As the plaintiff has passed through the s 60I(1)(a)(iii) gateway, I turn to consider the more difficult question namely whether it is just and reasonable to extend the limitation period. Just and reasonable 12 It was not disputed that the plaintiff has a real case to advance. However, the proposed third defendant submitted that it is not just and reasonable to grant the extension of the limitation period because it will be significantly prejudiced and will not be able to obtain a fair trial. The onus rests on the plaintiff. The ultimate test in any such application is whether a fair trial can be conducted notwithstanding any delay (Holt v Wynter). The cause of action against the proposed third defendant arose in 1983 some 18 years ago. Indisputably there is presumptive prejudice. 13 The plaintiff submitted that the defendant would obtain a fair trial because the symptoms asserted by the plaintiff are the same symptoms that are recorded in the hospital notes and that those hospital notes are complete and detailed. 14 Since about 1974 the plaintiff has attended the Mosman Medical Centre. Dr Gay (second defendant) and Dr Farbenblum (first defendant) practice at the Mosman Medical centre. From 1986 the Mosman Medical Centre retained medical records in relation to the plaintiff. However, it does not hold any medical records for the plaintiff for the period 1974 to 1986. The medical centre's archives have been searched but to no avail. Hence there are no medical records in existence from which the proposed third defendant can verify the history of prior headache. The plaintiff in her statement had detailed regular attendances with the first and second defendants where she complained of headaches but these were largely attributed to lifestyle issues. There is no longer an independent record of the nature of these headaches complained about in existence. From those records, had they still existed, it could have been ascertained whether the December 1983 headache was different. 15 The referral letter dated 15 December 1983 by Dr Sundin, a general practitioner of Frenchs Forest, is available (with my translation, as best I can manage) and states: "Re Ms G. Gray 2 Days ? migraine, severe headache and photophobia. On examination Meningismus No fever. Could you see her lumbar puncture Patient has Mild headaches years ? Migrainous". Dr Sundin was not the plaintiff's regular general practitioner nor did he practice at Mosman. On 15 December 1983 the plaintiff attended Royal North Shore hospital with the letter from Dr Sundin. 16 The medical staff at Royal North Shore hospital who attended the plaintiff have no independent recollection of the plaintiff nor of their observations during her three day admission to the hospital. On 15 December 1983 the plaintiff was diagnosed with viral encephalitis and discharged on 18 December 1983. In her affidavit dated 31 July 2001 the plaintiff deposed that on the morning of 15 December 1983, she recalled waking with a severe headache. She was in tremendous pain and was unable to stand. She had difficulty in movement and her eyes were sensitive to light. In her statement (annexed to Ex A and dated 21 September 2000), the plaintiff asserted that she attended the hospital on 15 December 1983 suffering from headaches, fever and photophobia. 17 Dr Philippa McCaffery, admitting doctor at the Accident and Emergency Department, does not recall the plaintiff or her presentation at the Accident and Emergency Department and has been unable to assist as she can barely recognise her own handwriting in the clinical notes. Dr McCaffery has refused to co-operate in a conference to discuss her memory of the matter further. 18 Dr Michael Prowse has been located in Port Macquarie and has identified his entry in the clinical notes as the "Med Reg" at 3.30 pm on 15 December 1983. Dr Prowse has refused to co-operate in a conference, as he believes that he was not a relevant person in the treatment of the plaintiff and that the plaintiff is wasting her time speaking to them. Dr Peter Williamson, retired neurologist, has deposed that in December 1983 he was practising as staff specialist at the hospital with rights of private practice. He has no recollection of the plaintiff or the circumstances of her admission independent of the records and he holds no personal records in relation to the plaintiff. Dr Williamson saw the plaintiff on one occasion only, on 16 December 1983 and he has no independent recollection of that consultation and would have to rely upon the records. 19 Dr Neroli Best, medical practitioner, has deposed that on 15 December 1983 she was employed in the Accident and Emergency Department at the hospital. On that date, she attended upon the plaintiff. Dr Best has no recollection of the plaintiff and no recollection of her examination of her or any histories taken, independent of the records. She has no recollection of the content of any conversations between herself and the plaintiff when she took the history of the nature of the onset of the plaintiff's headache. 20 Dr Mariese Hely, medical practitioner, has deposed that on 15 December 1983 she was employed as a Registrar in Neurology at the hospital. On that date, she attended upon the plaintiff. Dr Hely has no recollection of the plaintiff, nor any recollection of her examination of the plaintiff or any histories taken, independent of the records. She has no recollection of the content of any conversations between herself and the plaintiff when she took the history of the nature of the onset of the plaintiff's headache. She has no recollection of the content of the conversations between herself and the plaintiff in discussing the recommendation for a lumbar puncture, the necessity for that procedure given the level of the plaintiff's symptoms and whether that recommendation should be reviewed if the level of the plaintiff's symptoms became more severe. In this regard, she is reliant upon the records and her usual practice as to the recommendations she gave to patients in December 1983. 21 Dr Eva Pilowsky, the director of medical services has deposed that she and the nursing administration of the hospital are unable to identify the nursing staff who attended upon the plaintiff during her admission in 1983 by interpreting the medical records. There are no personnel records or rosters available from 1983. There are 45 nursing staff presently employed in various wards and department who have been employed since 1983 however none of those 45 staff are known to have worked in the emergency department or the relevant ward. Therefore Dr Pilowsky is not able to identify nursing registration numbers which would enable the New South Wales Nursing Board to assist in locating the relevant nursing staff. Dr P Rice has not been able to be located as there s no Dr P Rice registered with the New South Wales Medical Board. Apparently it is impossible to locate Dr P Rice without identifying details. 22 Hence, for the third defendant to prepare its case for trial, it is solely reliant upon the contents of hospital notes. The clinical records of the hospital contained the emergency unit admission form which states that at 7.30 pm on 15 December 1983 "Patient appears well looking. Is very drowsy and has a headache." The general history sheet reveals that provisional diagnosis of viral encephalitis was made on 15 December 1983 and the presenting symptoms were noted as "severe headache and photophobia". The medical entry of Dr Best records a two day history of generalised persistent headache, which worsened with postural changes, vomiting twice and mild photophobia. The medical entry of Dr Hely (third unsigned entry) records that the plaintiff woke with a diffuse severe headache, and that the headache became more severe as the day progressed. She experienced throbbing, a stiff neck, photophobia and pain on eye movement. She was vomiting until the evening of the previous day, and was experiencing sweating and shivers. There is a further entry in the clinical notes that if there is no improvement, high fever or worsening headache then the plaintiff is to return for further assessment and lumbar puncture. A further entry records that the plaintiff was not keen for a lumbar puncture, but if there were an increase in temperature, drowsiness and it failed to settle a lumbar puncture would be required. The last relevant entry stated that there was no indication for lumbar puncture in view of the clinical improvement. 23 On 20 December 1983, a hospital discharge letter was written to the referring general practitioner Dr Sundin. It stated: "Following her referral to hospital your patient Mrs Gray, aged 30, was admitted under my care. Two days previously she had had a diffuse severe headache present on waking and this became more severe as the day progressed. She had some neck stiffness, photophobia and pain on eye movement. She also had vomiting and sweating and shivering. There was a past history of migrainous type headaches, however, it was felt that the current headache probably was not of a migrainous type in view of her symptoms of fever and the fact that when admitted she had a temperature of 37.2°. At that stage she had only very terminal neck stiffness and even this soon improved so it was decided not to perform lumbar puncture. Full blood count was normal. In view of improvement she was discharged virtually symptom free on December 18." 24 Thus in the hospital records Dr Best refers to a two day history of generalised persistent headache, and then Dr Hely records that the plaintiff awoke with a diffuse severe headache and the headache became more severe as the day progressed. Both doctors record that the plaintiff experienced photophobia and then differ slightly. Dr Best also had described the plaintiff as experiencing a gradual onset of headaches. The actual symptoms that the plaintiff reported are crucial. According to Dr Campbell, in order to make a diagnosis it is necessary to determine whether this headache was different to her usual pre-existing chronic headache pattern. 25 Dr Campbell, neurosurgeon in his report dated 14 June 2001 (Ex 1) stated: "On the balance of probabilities, the diagnosis of viral meningitis made in 1983 at the Royal North Shore Hospital, remains inconclusive and unsubstantiated. The change in the nature of her headache requiring admission, I believe was not typical of viral meningitis. Diagnosis of viral meningitis is only made on exclusion of other acute cerebral conditions by examination of the cerebro-spinal fluid obtained by performance of a Lumbar Puncture. Lumbar puncture examination of the CSF is usually performed following the completion of a CT scan of the brain to exclude a mass lesion. It is critical to differentiate between acute hemorrhage (sic) of the brain, bacterial infection of the meninges, and viral or aseptic meningitis in patients presenting with a severe headache. The combination of CT scanning and CSF examination would be adequate and accurate in upward of ninety-eight percent of cases. The findings of hemorrhage (sic) from an arterio-venous malformation would have been evident on CT scan in ninety percent of cases, and would further have been supported by specific findings in the cerebro-spinal fluid in almost one hundred percent of cases for a period of up to six weeks following the onset of severe acute headache due to cerebral hemorrhage (sic)." 26 The plaintiff's history given to the doctors and description of any pre- December 1983 headaches experienced by the plaintiff is relevant in order to determine whether this headache was different. The descriptions of the headache in the hospital records and other symptomology differ slightly but these differences may be significant. The prior history of headaches given at that practice (and the plaintiff says that she reported headaches to her general practitioner on a regular basis) would assist in determining her usual pre-existing chronic headache pattern. Further the evidence would be necessary for the hospital to determine whether it should cross claim against the existing defendant doctors seeking an entitlement to contribution. 27 With the absence of independent recollections and prior medical records, the hospital notes do not enable the proposed third defendant to obtain a fair trial. The plaintiff has not discharged her onus of proof. It is my view that the proposed third defendant suffers actual prejudice such that it will not obtain a fair trial. It is not just and reasonable to extend the limitation period. The notice of motion is dismissed. Costs are discretionary. Costs should follow the event. The plaintiff is to pay the hospital's costs. 28 The orders I make are:

Gray v Farbenblum & 2 Ors

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