Guerin v Hillier; Netherwood v Hillier; Moore v Pell [2020] NSWSC 1322 | Case summary

Netherwood v Hillier

In this matter the defendant filed a notice of motion on 4 August 2020 seeking an order pursuant to s 62(3)(b) of the Civil Procedure Act and r 31.20(2)(e) of the UCPR that the plaintiff be limited to relying upon the evidence of only one specialist in orthopaedic surgery. There have been filed on behalf of the plaintiff reports by Drs Peter Giblin, Mehta, Johnstone and Hopcroft, who are all in this field. The plaintiff has indicated that she does not propose to tender Dr Mehta's reports or to call him as a witness.
Having examined the reports of the doctors for whom the plaintiff is still pressing, namely, Drs Giblin, Johnstone and Hopcroft, I consider that Drs Giblin and Johnstone provide substantially equivalent opinions regarding what they perceive to have been the absence of organic indications for surgical intervention by Dr Hillier. They provide substantially equivalent opinions in support of their preference for conservative treatment of a patient in the circumstances of the plaintiff, rather than operative treatment. Their views are expressed upon a broad basis of assessment of how the plaintiff presented to the defendant on each relevant occasion.
On the other hand, Dr Hopcroft has undertaken a more detailed examination of radiological findings with respect to the plaintiff at various stages in the history. He has reviewed, quoted and commented upon detailed findings and conclusions of both the radiologist and the defendant at different stages in the plaintiff's treatment history.
In my view, a combination of the evidence of either Dr Giblin or Dr Johnstone with that of Dr Hopcroft is reasonably justified in the plaintiff's interests to advance his case on negligence. Upon indicating that conclusion, the plaintiff's counsel has elected to rely upon Dr Giblin rather than Dr Johnstone and, accordingly, I have made an order that the plaintiff be limited to calling Dr Giblin and Dr Hopcroft.
Having heard both parties on the question of costs, I have ordered that each bear his own costs of the notice of motion.
The notice of motion included a reciprocal order proposed by the defendant that he should be required to elect which neurosurgeon he intends to rely upon at trial and notify the other parties of the same within a time to be determined by the Court.
As things presently stand, the defendant has served a report of Mr Greg Malham, a neurosurgeon who practices in Melbourne, and also reports of Dr Geoffrey Rosenberg, a surgeon in general orthopaedics who describes his main area of experience as adult degenerative lumbar spine and deformity.
Dr Rosenberg's earlier report dated 20 September 2018 responds extensively to reports of Dr Mehta that are no longer relied upon by the plaintiff. He devotes one paragraph to responding to Dr Giblin's report. Otherwise, Dr Rosenberg has expressed his opinions over a page and a half, in general and broadly expressed terms, regarding the manner in which the defendant managed the plaintiff as a patient and elected to carry out operative procedures upon him. Mr Malham's report is considerably more detailed. Having compared the two of them, it is my impression that one in greater detail and the other in lesser detail essentially contribute the same opinions.
This appears to me to be an appropriate case for ordering that just one of those two reports should be relied upon. It would not appear to advance the Court's understanding of the medical issues or its capacity to resolve them to have both of these reports before the Court. There would be no detriment to the defendant in having the firm medical opinion on proper professional practice that is expressed by both of these experts tendered through just one of them rather than two.
Accordingly, I order that within seven days the defendant elect which of Mr Malham and Dr Rosenberg he wishes to rely upon as an expert in orthopaedic and spinal surgery and that he notify that election to the plaintiff and the Court. The date for compliance is by 5pm on 29 September 2020.

Moore v Pell

I granted leave to the second defendant, Dr Hillier, to file in court today an amended notice of motion in the form that had been sent to the my Associate on 16 September 2020. In that notice of motion Dr Hillier seeks, first, an order pursuant to s 62(3)(b) of the Civil Procedure Act and r 31.20(2)(e) of the UCPR that the plaintiff should be limited to relying upon only one expert witness in the field of orthopaedic surgery. Secondly, the defendant proposes that he should elect which neurosurgeon he intends to rely upon at trial, of two specialists whose reports he has served. Thirdly, the second defendant seeks an order that the plaintiff should attend an in person assessment by the second defendant's occupational therapist, Ms Sue Dinley, at the plaintiff's home on 7 October 2020 for the purpose of Ms Dinley preparing a report. I will deal with the last of these proposed orders first.
The plaintiff has served a report dated 12 January 2018 by an occupational therapist, Ms Geach, who examined the plaintiff in his home on 23 August 2017 at Wagga Wagga. Ms Geach reports that there were present during the assessment, in addition to herself, Mr Moore and his mother, who is aged sixty-seven years. I am informed on the hearing of this motion that Mr Moore's eleven-year-old daughter usually resides with him and his mother.
Ms Geach assessed Mr Moore in his home to ascertain his ability to function in that environment following the injury and disability for which he seeks damages in the present proceedings. She explained that by attending upon the plaintiff in his home she was able to identify how he is affected by the physical restrictions and pain that he has sustained following the surgery by the two defendants and she was able to assess the direct impact of the pain and disabilities upon Mr Moore's performance in his home and in his general care of himself.
In the course of that assessment Ms Geach arranged for the plaintiff to demonstrate how he carries out certain functions of everyday care for himself, taking account of what he says are restrictions on his movements and pain that he experiences as a result of the surgical procedures that he says were negligently carried out by the defendants.
For example, Mr Moore demonstrated to Ms Geach how far he could reach towards his feet from a standing position. He demonstrated the manner in which he was able to manoeuvre himself onto a bed or couch and assume a lying down position. He demonstrated his ability to get up from a couch and the manner in which Mr Moore would support himself to carry out various functions of dressing himself; for example, putting on socks and removing them. He also demonstrated what steps he needed to take in order to be able to carry out ordinary functions such as gaining access to cupboards. Many of these movements and self-protective manoeuvres were demonstrated to the occupational therapist whilst she took photographs and her photographs are included in her report.
The second defendant, Dr Hillier, now wishes to have Ms Dinley, occupational therapist, attend upon the plaintiff in his home and carry out a similar assessment. This application for a further report is late having regard to timetables for the provision of evidence that have been the subject of earlier directions of the Court. But the proceedings are not listed for trial until March 2021 and Ms Dinley has given assurances that she can provide a report within two to three weeks after making the assessment. That is, it could be available by about the end of October on the basis that she attends at Mr Moore's home on 7 October.
The lateness of the application to have this further examination undertaken comes about as a result of the defendant's solicitors briefing counsel who has advised it. There has been an objection from the plaintiff on the basis that this is all too late but the delay will in my view not cause unfairness to the plaintiff. Ultimately the only substantive objection that has been raised to the examination taking place concerns Mr Moore's apprehension about exposure to transmission of the COVID-19 virus.
On the hearing of this aspect of the application I have read the affidavit of Tonya Teresa Longmore sworn 21 September 2020. That has an exhibit with 140 pages of correspondence, most of which counsel for the plaintiff has indicated it is not necessary for me to read. The relevant part of the affidavit is in paras 59 and 60 of the matters to which Ms Longmore deposes. She has deposed that whereas Ms Dinley wishes to undertake a personal attendance on the plaintiff for the purpose of preparing this report, there are other occupational therapists that have been identified who are willing to undertake such an assessment without a personal attendance.
The question of whether this would be feasible was raised on 18 August 2020 when these proceedings were before the Court for other directions. At that time I invited the defendant to consult with Ms Dinley and ascertain whether she would reconsider the necessity to attend upon the plaintiff in person and whether she would take the view that a satisfactory report could be prepared with a video conference. Ms Dinley was asked those questions but her response has been that she does not consider it satisfactory to attempt the process without seeing the person in his own environment.
Having regard to what was done by Ms Geach in the preparation of her report, I can see the force of that. It is apparent that in order to answer Ms Geach's report, Ms Dinley would need to undertake an equivalent examination of the plaintiff's circumstances in his own home in order to assess how he copes in that environment. If the defendant is precluded from having an evaluation carried out on the same basis and being able to tender a report from an occupational therapist following upon an equivalent examination, then it is self-evident that the defendant would be denied an equal hearing and there would be an absence of procedural fairness, which would vitiate the trial of the proceedings.
Accordingly, the alternatives would appear to lie between staying the proceedings or making an order that the examination take place in the plaintiff's home by Ms Dinley, who has said she will adopt proper protections. According to Ms Longmore's affidavit, the plaintiff's concerns focus upon his own worries about contracting the COVID-19 virus and the concerns of his mother in the same regard, she being a smoker who may well be at heightened risk of serious symptoms from the virus should she contract it. The plaintiff is most concerned about the health and well-being of his mother because she is, as he describes it, his main carer.
The plaintiff also states that his eleven-year-old daughter has limited contact with her mother and that the plaintiff and the plaintiff's mother are her only substantial carers. He says that his daughter is also anxious about the risk that the plaintiff and/or her grandmother may contract the virus. Ms Dinley has indicated that she would attend the examination in full personal protective equipment. She states that she is fully observant of the precautions to prevent the risk of contracting the virus or spreading it to any other person; that she is recognised under the relevant health regulations as an essential health worker and as such has full consciousness of the need to take proper precautions.
It appears to me that it would be quite feasible for the plaintiff's sixty-seven-year-old mother and his daughter to be absent from the house during the conduct of this examination. The assessment undertaken by Ms Geach occupied two hours. There is nothing to indicate that it would not be feasible for the plaintiff's mother and daughter to absent themselves from the place while the assessment is taking place.
Accordingly, I will make the order that is sought by the defendant for Ms Dinley to attend his premises and assess him on 7 October 2020.
I will not make any specific orders about health precautions that are to be put in place. It appears to me that the Court can satisfactorily rely upon the sense and professionalism of Ms Dinley having regard to her letter providing assurance to the Court about her capacity, knowledge and willingness to exercise proper caution.
With respect to other aspects of the defendant's application, the only orthopaedic surgery reports that the plaintiff now wishes to rely upon are those of Drs Peter Giblin and Peter Johnstone. He also relies upon a report of Mr Drnda, a neurosurgeon who practices in Melbourne.
Dr Giblin's principal proposition, which recurs with varying emphasis throughout his report of 6 October 2015, is that the plaintiff's spinal pathology, manifest on radiological studies prior to his first surgery by Dr Pell on 6 May 2011 was compression of the L5 nerve root. Dr Giblin is of the view that that compression was apparent on the radiology and that any procedure undertaken by Dr Pell should have been directed to decompressing the L5 nerve root. Dr Giblin states that when the surgery was undertaken the compromise of that nerve root should have been apparent because it would have been swollen, turgid and discoloured with a bluish-purple tinge. If Dr Pell had not become aware of the compression by looking at the radiological studies, according to Dr Giblin, he should have seen it during the operation and should have then acted to relieve the compression.
Dr Giblin is of the view that before Dr Hillier undertook his first surgery on the plaintiff on 9 February 2012 he should have appreciated that the plaintiff's spinal pathology was compression of the L5 nerve root. Dr Giblin considers that examination of Dr Hillier's notes does not reveal that he made any reference to the L5 nerve root, signifying that he did not explore it or ascertain its condition. Dr Giblin considers that if the L5 nerve root had been decompressed on 9 February 2012 there would more likely than not have been a significant improvement in Mr Moore's condition and symptoms.
Dr Giblin continues on the same theme in relation to Dr Hillier's second operation on the plaintiff on 3 August 2012. He is of the view that before that operation was undertaken there was "still a suspicion for a right L5 nerve root compression". He says this could have been investigated with a fine-cut, high-resolution CT myelogram, which apparently was not undertaken. Further, he says that a competent surgeon in Dr Hillier's position carrying out the operation on 3 August 2012 would have found that the L5 nerve root was swollen and turgid with ecchymosis (discolouration from bleeding) and that the appropriate treatment would have been to decompress that nerve root which, he says, was not undertaken. Again, Dr Giblin says that if this had been done in the second operation by Dr Hillier on 3 August 2012 it would be reasonably expected that the plaintiff's right-sided sciatica would have been substantially improved.
In his subsequent reports of 2 April 2019 and 22 May 2019 Dr Giblin adheres to his view that failure to address the right side L5 nerve root compression is the source of the plaintiff's problems and is the principal feature of inadequate surgery by both Dr Pell and Dr Hillier.
Dr Johnstone, in his report of 9 May 2019, agrees with Dr Giblin. He adds relatively marginal additional propositions. One of them is that he considers it would have been prudent before Dr Pell operated to have undertaken a block to the right L5 nerve root to try to ascertain whether Mr Moore's symptoms were truly radicular or were referred from chronic early disc degeneration at L5. Dr Johnstone considers that in Dr Pell's operation of 6 May 2011 he did decompress the L5 nerve root under the lamina, but did not excise a bulging calcified disc so that the nerve may still have been compromised.
Dr Johnstone also considers that the failure to decompress the L5-S1 disc is likely to have been a significant reason why Mr Moore's symptoms did not resolve after surgery. He has confirmed Dr Giblin's view that there is no indication Dr Pell undertook any exploration of the L5 nerve root. He evidently considers that that should have been done, on the radiological indications. To that extent he is substantially, as he expressly states, in agreement with Dr Giblin.
Dr Johnstone adds the further view that the onset of right L5 radicular symptoms may in fact reflect damage done by the second surgery, that is Dr Hillier's surgery of February 2012.
I emphasise that the respects in which Dr Johnstone adds to the opinions and explanations of Dr Giblin are in a relatively narrow range, but I do not consider that it would be appropriate to preclude the plaintiff from relying upon his evidence. It is legitimate for the plaintiff to seek to add weight to its case with those additional views.
Mr Drnda's report was not the subject of any application in the notice of motion filed by Dr Hillier to preclude the plaintiff's reliance upon it. The notice of motion was directed only to reports of orthopaedic surgeons. However, in the course of hearing the application the second defendant has expanded its application to submit that if the plaintiff is to rely upon reports of Drs Giblin and Johnstone he should be prevented from also relying upon Mr Drnda's report.
The plaintiff answers that, first, by submitting that Mr Drnda's discipline is different. That does not seem to me to be decisive. Whatever the precise speciality that any of these medical experts adheres to, they are giving evidence concerning the conduct of operations on the lumbar spine. They are all governed by the same science. They have all taken into account the same radiological studies and other testing that is available for indicia of whether surgery is required. It seems to me appropriate to assess Mr Drnda's report on the basis that if it does nothing more than reiterate what other plaintiff's experts, who identify themselves as orthopaedic surgeons, have said then it may be appropriate to deny the plaintiff the right to rely upon this witness.
The plaintiff also says that the report of Mr Drnda is responsive to reports that have been obtained on the instructions of Dr Pell, not Dr Hillier. It is said to be responsive to the report of Dr Stenning, who was engaged to give an opinion in the interests of Dr Pell in the case. The plaintiff protests that it should not be open to Dr Hillier to seek to have this report excluded when it has been obtained and then served in the interests of the plaintiff prosecuting her case against Dr Pell and in answer to Dr Pell's experts.
There is force in that submission. Although Dr Pell has not made an application for exclusion of any reports of the plaintiff, the fact clearly is, on reading these reports, that they address the conduct of both doctors. It is inevitable they should do so because there was a course of three operative procedures, the sequential effects of which have had to be unravelled as a matter of causation in the course of the medical experts examining the record. The sequential effects will again have to be unravelled by the Court in deciding the case. Any professional errors that may have been made along the way cannot be entirely separated from each other in considering the whole history of the treatment of the plaintiff's spine.
On reviewing Mr Drnda's report, irrespective of which defendant's report he may have been intending to reply to, it provides some evidence relevant to the plaintiff's case against Dr Hillier. But it is not, in my view, co-extensive with the reports of Dr Giblin or with the combined effect of the reports of Drs Giblin and Johnstone. Significantly Mr Drnda has a different view about the extent to which nerve roots were compromised by the condition of Mr Moore's spine at the date when surgical intervention commenced. On Mr Drnda's view, prior to 6 May 2011, there was mild interference with the L5 nerve root. He described it as "minor contact but with no compression".
On his view of the radiology prior to the first operation "the relevant CT scan showed broad-based disc protrusion at L5-S1 that was heavily calcified and hardened and showed that there was minimal displacement of the right S1 nerve root". He said, "This was surrounded with substantial amount of fat layer laterally and posteriorly". He considers that Mr Moore would likely have suffered right leg pain, possibly in the distribution of the L5 nerve root, but he would not expect any neurological deficit. He said: The chronic disc protrusion is in keeping with the low back incident that happened some nine years before. The low back symptoms would be caused by a local muscular reaction to the presence of likely irritation of the right L5 nerve root and possibly to a degree of micro instability due to pars defects and chronic degeneration of the L5-S1 disc.
In so saying he was in part responding to the opinion of Dr Mobbs, a neurosurgeon and spine surgeon, who provided a report for Dr Pell dated 19 January 2018. Dr Mobbs has opined that although there has been a focus on the L5 nerve he considered that the presenting problem was "S1 pain in nature".
Mr Drnda provides yet a further opinion, additional to the opinions of Drs Giblin and Johnstone, concerning management of the plaintiff that might have been undertaken before even the first surgery by Dr Pell. In Mr Drnda's view it was not crucial for an L5 nerve root block to be conducted, as suggested by Dr Johnstone, and conservative management should have continued as outlined in his report. There he suggested: reassurance, functional physiotherapy and weight loss on the basis that the plaintiff was obese. He considers that if these steps had been undertaken the plaintiff would have improved substantially, although he would have remained with some degree of low back pain.
The addition of this opinion expands still further the spectrum of views on the side of the plaintiff's experts. There is Dr Giblin, who thinks that the L5 nerve root was impacted and required surgical intervention to decompress it; there is Dr Johnstone, who does not disagree with this, but suggests that there should have been a nerve block undertaken with respect to the L5 prior to any surgery in order to confirm that it was the L5 that was the cause of Mr Moore's symptoms; and there is Mr Drnda who considers conservative management, without intervention at all, may well have achieved an adequate clinical outcome.
Mr Drnda is of the opinion that the surgery performed by Dr Pell was unlikely to offer any therapeutic benefit. He holds the same view concerning the operation performed by Dr Hillier on 9 February 2012. He is still more emphatic with respect to Dr Hillier's operation of 3 August 2012, which he says "was without any good reason". At that date, somewhat differently from the view of Dr Giblin, he considers that there was no obvious compression of any of the nerve roots and no reason to perform rhizolysis (neurolysis). He is of the view that all surgeries performed by Drs Giblin and Pell were unnecessary.
On that analysis it appears to me that Mr Drnda adds an additional view over and above what has been expressed by Drs Giblin and Johnstone; that it has a bearing upon the plaintiff's case, both against Dr Pell and against Dr Hillier and that there is no adequate justification for the Court to exercise its discretion under r 31.20(2)(e) to deny the plaintiff the opportunity to rely upon that report.
Accordingly, the order that the defendant seeks requiring a choice between these three experts will not be made. It is noted that the plaintiff is no longer relying upon reports he obtained from Dr Mehta and will not call that witness. There is no need for any order limiting the plaintiff's use of expert reports in this respect.
As regards the reports served by Dr Hillier from experts in spinal surgery, they are reports of Mr Greg Malham dated 2 October 2018 and Dr Noel Dan of 1 February 2019. Mr Malham is in current practice as a neurosurgeon in Melbourne. His report indicates extensive experience in that field and in particular in relation to spinal operations, including fusion operations that are of particular relevance to the facts in issue in the case. Mr Malham knows Dr Hillier well from common experiences in professional practice and has expressed opinions on each of the numerous particulars of negligence that are alleged against Dr Hillier.
On my reading of Dr Dan's report, it covers substantially the same ground as Mr Malham has covered. He does not state that he is currently practising as an operating surgeon. He refers to more than forty years of specialist neurological related practice, including significant spinal practice. It appears that he has ceased operating, so far as I can glean from his report. I do not consider that to be a particularly significant difference between his expertise or his report and the expertise and report of Mr Malham.
Dr Dan has also addressed each of the numerous particulars of negligence that are alleged against Dr Hillier and has expressed his opinions on several of them in somewhat different language, with in some cases different material conclusions or different emphasis. But I am not able to see that there is any substantial difference in the approaches taken by these two specialists or any substantial difference in the professional backgrounds from which their opinions and their expertise derive.
These reports, on my reading of them, substantially duplicate each other and it is appropriate to exercise the jurisdiction under the section and the rule to which I have referred to order that the second defendant, Dr Hillier, make an election between them.

Guerin v Hillier; Netherwood v Hillier; Moore v Pell

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Judgment (5 paragraphs)

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