Hardwick v McSwiney

Civil Liability Act 2002 LEGISLATION CITED : Civil Procedure Act 2005 Supreme Court Act 1970 Uniform Civil Procedure Rules

CASES CITED : Frellsen v Crosswood Pty Ltd (1992) 15 MVR 343 Matouk v Hungry Jacks Pty Ltd [2009] NSWSC 1176

PARTIES : Suzanne Hardwick (Plaintiff) Patrick F McSwiney (Defendant)

COUNSEL : J O Anderson (Plaintiff) L R Young (Defendant)

SOLICITORS : Catherine Henry Partners (Plaintiff) Avant Law Pty Ltd (Defendant)

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

JUDGMENT 1 HIS HONOUR: The plaintiff seeks an expedited hearing. This is referred to later in these reasons. In advance of that the plaintiff seeks an order pursuant to s 82 of the Civil Procedure Act 2005 that the defendant pay her as part of her damages an amount on an interim basis pending the final determination of the proceedings. That section is relevantly as follows: " 82 Court may order interim payments

( 1 ) In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings.

( 2 ) The court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings.

(b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or

(c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.

( 4 ) The court may not make such an order if the defendant satisfies the court that:

(a) the defendant is not insured in respect of the risk giving rise to the plaintiff's claim for the recovery of damages, and

(c) the defendant would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made.

( 5 ) The court may order a defendant to make one or more payments of such amounts as it thinks just, but not exceeding a reasonable proportion of the damages that, in the court's opinion, are likely to be recovered by the plaintiff.

( 6 ) In estimating those damages, the court is to take into account any relevant contributory negligence, and any cross-claims, on which the defendant may be entitled to rely." 2 Sections 82(3)(a) and (b) are not presently relevant and the plaintiff relies on s 82(3)(c). Section 82(4) does not apply at all to the facts of this case. Background 3 The defendant was a specialist ear, nose and throat surgeon practising in Nowra in January 1993 when the plaintiff consulted him concerning a persistent ulcerated lesion on the right side of her tongue. He performed a biopsy of the lesion, which on histopathological examination was reported as showing no evidence of significant dysplasia or neoplastic disease. The plaintiff consulted the defendant again in February the following year when he performed an excision biopsy of the lesion. Histopathological examination revealed a moderately dysplastic squamous epithelium suggesting that the lesion had been incompletely excised. 4 On 15 February 1994 the defendant reported to the plaintiff's general practitioner as follows: "She obviously requires to be kept under review and I have organised to see her again in 4 months time". 5 The plaintiff alleges that neither the defendant nor her general practitioner advised her of the need for review at this time. However, she consulted the defendant again on 21 June 1994. His notes of the consultation record "not much to see". The plaintiff again consulted the defendant in September 1996. The defendant wrote to the plaintiff's general practitioner on 12 September that year concerning that consultation in the following terms: "Thank you very much for asking me to see Mrs Hardwick who has found that the left side of her tongue is still tender with hot food such as chillies. Clinical examination failed to reveal any abnormality and I have reassured her in this regard." 6 The plaintiff did not consult the defendant again until May 2005 by which time she had developed squamous cell carcinoma extending deep into the muscle of the tongue. She thereafter underwent surgery for a partial glossectomy and radiation therapy. This has resulted in the loss of the plaintiff's salivary glands causing xerostomia and loss of all dentition. The plaintiff has become severely depressed and has recently required admission to hospital with suicidal ideation. Her psychiatrist has recommended electroconvulsive therapy. 7 The plaintiff contends that the defendant was negligent in his treatment of her in a number of respects. These include an alleged failure completely to excise the lesion or to refer the plaintiff for appropriate specialist treatment or to arrange any appropriate follow up or review. Consideration 8 In the present circumstances I must be satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant. This requires the making of a preliminary assessment of both the issues of the defendant's liability and the likely quantum of the plaintiff's damages. The precise nature or extent of the satisfaction required is neither explained nor guided by the section. In Matouk v Hungry Jacks Pty Ltd [2009] NSWSC 1176 Matthews AJ referred to the matter as follows: "[11] During the course of submissions, there was debate between Counsel as to the level of satisfaction which the Court should reach before making an order under s 82(3)(c). It is unnecessary for present purposes to go through the case law on this subject, for both counsel ultimately agreed with the proposition that the Court should be 'comfortably satisfied' of the matter in question. In my view this approach is appropriate and is consistent with authority. I therefore propose to adopt this standard when considering the issues of liability and damages." 9 Counsel for the parties in the present case did not suggest that I should take a different approach. 10 There is a contest between the parties on the issue of the defendant's liability. The plaintiff relies in this regard upon the medical opinion of Dr J H Seymour whose report dated 23 October 2008 includes the following summary: "Taking into account that the [plaintiff] consulted Dr McSwiney on 13 January 1993, underwent two biopsies at his hands, and in total was examined by him 10 times between 1993 and 2005, this appears to be a case of delayed diagnosis and inadequate excision.

She consulted Dr Sheridan, head and neck surgeon on 25 May 2005 and approximately three weeks later underwent surgery for partial glossectomy, which has apparently cured her carcinoma of the tongue. There can be no doubt that if she had consulted Dr Sheridan earlier her condition would have been resolved and cured at an earlier date.

The history of the disease in this case indicates that the initial excision may have been inadequate.

On 2 February 1994 the biopsy showed significant dysplasia of the squamous-cell epithelioma, which was commented on by the pathologist. Dysplasia is an ominous sign in early stages of carcinoma of the tongue.

A doctor is required to demonstrate that there are adequate and reliable systems in place to ensure that patients are followed up appropriately, particularly where there may be a likelihood of a potentially serious adverse outcome for the patient.

In addition a doctor must generally 'follow up' investigations or advice notwithstanding the failure of the patient, or indeed a hospital or pathology laboratory, to follow advice or normally accepted procedures. It is not acceptable for a medical practitioner to leave 'follow up' to someone else." 11 The plaintiff also relied upon the medical opinion of Dr A J Coren, an oral and maxillofacial surgeon, whose report is dated 4 June 2009. He was asked what was the appropriate treatment that the plaintiff should have received following the discovery of the moderately dysplastic squamous epithelium of the tongue in February 1994. He offered the following opinion: "Dr McSwiney should have advised the [plaintiff] this lesion was pre-malignant and she required further urgent surgery in order to fully excise any residual pre-cancerous tumour cells. An appointment should have been made for the [plaintiff] to be reviewed in his clinic within the next few days of receiving the . . . report and further arrangements made to re-admit [the plaintiff] to hospital for a wider and deeper excisional biopsy. Instead, Dr McSwiney arranged to consult her again "in four months time". He obviously did not understand/comprehend the significance of the histopathological findings of moderately dysplastic squamous epithelium .

In relation to the histopathology report dated 2 February 1994, that a "pre-malignant condition was present involving an ulcer/leukoplakic patch of the right side of the tongue" where the margins had not been completely excised, Dr McSwiney should have had the knowledge from his professional training as a surgeon, that this condition required on-going treatment and if he was not comfortable in carrying out further wider and deeper excisional surgery, then he should have immediately referred the [plaintiff] to a more experienced surgeon for excision of the lesion. There is a considerable amount of published articles/textbooks/oncology journals confirming dyskeratosis of epithelium may eventually develop into squamous carcinoma in situ or squamous cell carcinoma . This is evidence based surgery and dentistry.

In [the plaintiff's] case, her post-operative follow-up by Dr McSwiney was completely inadequate and ineffective as the precancerous tumour cells remained and continued to grow in the operative site lesion involving the right side of her tongue." (Emphasis in original). 12 In contrast the defendant relied upon a report dated 27 November 2009 prepared by Dr R M Gallagher who specialises in otolaryngology - head and neck surgery. He expressed the view that Dr McSwiney's behaviour was competent and professional throughout the period from the time of the first consultation until September 1996 at which time he noted that the plaintiff's tongue appeared normal in appearance. He proffered the following opinion: "Oral epithelial dysplasia may be considered a premalignant process however only a small percentage of patients will ever progress on to develop a frank malignant process. The management of dysplasia is therefore controversial. There is a large amount of information in the literature which pertains to oral epithelial dysplasia and how to manage it appropriately. There is general agreement that mild and moderate dysplasia has an extremely low rate of malignant transformation compared to severe dysplasia. Surgical excision and observation are appropriate management options and these were followed by Dr McSwiney. That the [plaintiff] had mild dysplasia at the margins of the excision site of the small area of moderate dysplasia performed in February 1994 would not be an indication for further excision biopsy. Observation was the appropriate management.

The concept of field cancerisation is well recognised by surgeons who manage oral lesions. This means that the patient may have abnormal cellular changes throughout the oral lining which potentially can become dysplastic and over time possibly transform to a malignant process." 13 Dr Gallagher did not believe that the lesion had been incompletely excised. He considered Dr McSwiney's advice that the plaintiff required ongoing observation was completely appropriate for mild dysplasia and that the majority of surgeons would not perform further excision of mild dysplasia as the rate of transformation to a malignant process was extremely small, or about three per cent of all cases. He went on to offer the following comment: "The [plaintiff] was diagnosed with invasive squamous cell carcinoma of the tongue in June 2005 and proceeded on to appropriate surgical and adjuvant treatment. I note that Dr McSwiney at that point in time recognised that this was a malignancy. There is a twelve year gap between the initial presentation of the patient from 1994 to 2005. There was a nine year gap from the [plaintiff's] last review in September 1996 to her presentation in May 2005. The development of an oral malignancy may be a slow or rapid process. To claim, however, that this lesion arose from an area of mild dysplasia in 1994 to a frank invasive malignancy eleven years later is beyond the realms of what would be accepted by surgeons. It is reasonable to assume that the [plaintiff] had other areas of oral epithelial dysplasia and I again refer to the concept of field cancerisation, which would adequately explain the development of an invasive malignancy at that point in time." 14 Dr Gallagher took strong exception to the reported opinions of Drs Seymour and Coren. There is no corresponding response to Dr Gallagher from either of the plaintiff's doctors. It is unnecessary to do more at this stage than to note that there is a significant difference of medical opinion and to observe that its resolution must necessarily and quite properly await the final hearing. 15 Apart from a denial of negligence or breach of duty by the defendant, he relies specifically upon s 5O of the Civil Liability Act 2002. That section provides as follows: " 5O Standard of care for professionals

(1) A person practising a profession ( a professional ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted." 16 On the present state of the evidence I do not consider that I am in a position to express even a tentative view about whether or not the defendant was negligent or breached his duty to the plaintiff or more particularly that he acted in a manner which, at the time his professional service was provided, was widely accepted in Australia by peer professional opinion as competent professional practice. In my opinion it is inappropriate in these circumstances on an application such as the present to comment in terms that may appear to suggest a view of the probable or likely outcome of the proceedings. Clearly enough a conclusion that I was satisfied, if the proceedings went to trial, that the plaintiff would obtain judgment for substantial damages against the defendant would be an expression of an opinion about the likely outcome of the proceedings. That is what the subsection both contemplates and requires. However, none of the medical experts has been cross-examined, nor has any of them given evidence in the witness box before me. I am unable to make any proper or meaningful assessment of the competing views of the experts on each side other than to observe that there is a conflict between them. I cannot presently resolve that conflict. I cannot by the same token be satisfied that the plaintiff would, not merely might, obtain judgment against the defendant. 17 The commentary to the section in Ritchie's Uniform Civil Procedure includes the following: "Obtaining satisfaction that the plaintiff would obtain judgment does not involve determining the issue of liability. The court is required to satisfy itself that that the plaintiff is likely to succeed according to the ordinary standard of the balance of probabilities. What that standard will require in any particular case must obviously depend upon the individual circumstances, but in determining whether the plaintiff has discharged its onus it will be proper for the court to have regard to the uncertainties of litigation and to require satisfaction 'towards the top of the flexible scale' of the civil burden of proof: Ricci Burns Ltd v Toole [1989] 1 WLR 993; Schott Kem Ltd v Bentley [1991] 1QB 61; [1990] 3 All ER 850; Frellsen v Crosswood Pty Ltd (1992) 15 MVR 343. There have been conflicting views expressed as to whether refusal of summary judgment precludes the satisfaction necessary to justify an interim payment. . . Perhaps the true position is that much will depend on the reason for refusing summary judgment. If the refusal is based on affirmative evidence tending to show a reasonably arguable defence, the same evidence would tend to preclude the satisfaction necessary to justify interim payment. On the other hand, a discretionary refusal of summary judgment, based on the inappropriateness of summary determination of the proceedings, may not preclude satisfaction about the plaintiff's probable entitlement to judgment." 18 In Frellsen v Crosswood Pty Ltd (1992) 15 MVR 343, where the plaintiff was injured in a motor vehicle accident, the transcript of the evidence from the trial of the second defendant on a charge of dangerous driving suggested that he had not been keeping a proper lookout, which would justify a finding on the balance of probabilities that a tribunal of fact would find against him. Sully J made an order for interim payment under s 76E of the Supreme Court Act 1970. Such a conclusion appears to have been wholly uncontroversial in that case. 19 In my opinion, this case is different. The present case is more akin to one where there is affirmative evidence, in the nature of expert medical opinion from Dr Gallagher, that tends to show a reasonably arguable defence, whatever may be its ultimate fate when properly exposed to thorough forensic and judicial scrutiny. This is not a case where the evidence promotes one result over another as inevitable or highly likely or obvious. The facts do not alone speak to the result in the proceedings without the benefit of the evidence from experts to assist the Court to understand what those facts mean. The existence of the conflict in this case between those experts is sufficient in my opinion to dispose of the present application. I am unable to be satisfied at this stage that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant. 20 The affidavit material filed by the defendant discloses correspondence that includes a reference to the question of the costs of this application. Counsel for the defendant also sought costs in her submissions before me in the event that the plaintiff was unsuccessful. However, in my opinion this is a case in which the costs of the application should abide the outcome of the trial. If the defendant is eventually successful that will equate to a justification for having opposed the plaintiff's application for an interim payment and costs will in all likelihood follow that event. On the other hand, if the plaintiff is successful at the trial, it will demonstrate that the present application was founded upon a case in which the plaintiff was by definition able to establish an entitlement to damages against the defendant. The evidence before me, to which it has been unnecessary to refer, suggests that the plaintiff's damages in the event of her success in the proceedings would be substantial. 21 I consider that the costs of the plaintiff's application for an interim payment should be costs in the proceedings. 22 I indicated when I reserved my decision in this application that the question of an expedited hearing should await my determination. There are considerable factors tending to suggest that the present proceedings should be heard as soon as possible. I would therefore invite the parties to address me on this matter at some time convenient to the parties and to the Court to be arranged in consultation with my Associate.

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