Hogan v Jaffe

The plaintiff's case

1. The plaintiff's case is that in or about December 1997 he consulted with Dr Martin Jaffe complaining of deteriorating memory, low levels of energy, and general fatigue and tiredness. He continued to see him as a general practitioner until about 2015 at which time he consulted a different general practitioner, Dr Jody Parker. During the time that the plaintiff was seeing Dr Jaffe he also saw Dr Stephen Thornley twice in 2003.
2. After the plaintiff started seeing Dr Parker, he was referred to other specialists. A CT scan of his brain showed a likely macro pituitary adenoma. He was subsequently referred to a neurosurgeon and a specialist endocrinologist in 2017. It appeared that had a pituitary adenoma in his brain which caused secondary hypothyroidism which was not diagnosed by either of the defendants. The plaintiff underwent surgery and now has lost vision in his left eye and has right temporal visual field loss as well.
3. The plaintiff's case is that as a result of the omissions and acts of the first and/or second defendant, he has suffered injury, loss, and damage. The plaintiff has served four reports of Professor John Carter, who is an endocrinologist, on issues of both breach and causation. Only the latter two of those reports are relevant to the question of breach, but all are relevant to the causation issue as I understand it.
4. By letter dated 24 January 2022, the first defendant has served its endocrinology evidence, which comprises two reports of Professor Steven Boyages dated 31 May 2021 and 25 October 2021.
5. The second defendant has not served the report of Professor Boyages on the plaintiff. On 8 September 2022, he served two reports of a D Michael D'Emden dated 21 October 2021 and 28 July 2022.

The plaintiff's evidence and submissions

1. In his affidavit sworn on 12 October 2022, Mr Broom deposes that it was not until after a failed mediation on 15 September 2022, that Duncan Graham SC advised that it was necessary to obtain a further expert report from a second endocrinologist. Mr Broom deposes that that additional endocrinologist was required on the following basis: 1. To respond to the report of Dr D'Emden which was not received until a week prior to the mediation. Dr D'Emden provides a detailed opinion on pituitary adenomas and secondary hypothyroidism. Mr Broom deposes that that is not an easy issue to understand. 2. That prior to the service of Dr D'Emden's report, the defendants had both indicated reliance upon one endocrinologist being Professor Boyages. 3. The matter is a complicated one spanning 15 years of treatment history which would benefit from evidence from a presently practising endocrinologist, which Professor Carter is not. 4. The report of Professor Carter deals primarily with issues of causation with respect to the negligence of the first defendant as opposed to alleged negligence against the second defendant. 5. It is needed to properly address s 5O of the Civil Liability Act 2002 (NSW) ("CLA"). 6. The evidence would assist the court in this medically challenging case.
2. In his second affidavit sworn 14 October 2022, Mr Broom adds that the Independent Medical Opinion ("IMO") medicolegal group has two endocrinologists on its panel of experts, being the second defendant and Professor Carter. Mr Broom was only recently made aware of this potential conflict of interest, which was submitted, further justifies the plaintiff's need to qualify a further endocrinologist. Such a conflict is not said to be relevant to the case against the first defendant.
3. In his third affidavit, sworn on 4 November 2022, Mr Broom noted that the second defendant does not oppose orders sought insofar as they concern the qualification of a neurosurgeon - and noted that a notice to produce was served by the second defendant.
4. It was submitted that the starting point to this application is that there is no reason why the plaintiff ought not be allowed to qualify a further expert in the field of endocrinology - save that absent such an order, the service of further evidence will not occur in compliance with the court's order. It was submitted that the proposed orders do not undermine the clear purpose of the legislative regime and the practice note, which is to achieve efficiency and economy in cases where expert opinion evidence is to be adduced.
5. In addition to the matters raised in Mr Broom's first affidavit, it was further submitted that the second report will address issues in respect of liability, not quantum; that there would be no prejudice to the defendants in circumstances where the plaintiff will not oppose the defendants being afforded the opportunity to obtain expert evidence in reply. Nor, it was submitted, would evidence of a further expert endocrinologist extend the length of any hearing, as the experts would give evidence concurrently. Nor would the duration of the conclave and length of any joint report be substantially increased.
6. It was acknowledged that it was regrettable that the requirement for a further expert endocrinologist had only recently been identified. Notwithstanding this, it was submitted that upon receiving advice from senior counsel to do so, the plaintiff acted expeditiously to remedy the gap in the evidence.
7. At the hearing today, Mr Robinson of counsel summarised the plaintiff's position by relying upon three bases upon which leave should be granted for the plaintiff to serve a second endocrinologist report. These three reasons were: 1. As deposed to by Mr Broom, what is sought is to obtain an expert who is currently practising, rather than someone who is now retired from clinical practice. 2. That the new endocrinologist sought will have a sub‑specialty in hypothyroidism, which is relevant to the causation issue. 3. That given that both the first and second defendant have each filed expert reports from endocrinologists with broadly similar expertise, it is only fair that the plaintiff is able to do so - particularly in light of the possibility of a s 5O CLA Act defence.

The second defendant's evidence and submissions

1. Mr Baram, for the first defendant, annexed all of the reports of the three endocrinologists in his first affidavit.
2. In his second affidavit, he set out the procedural history in some detail. He also stated that, thus far, the costs of meeting the plaintiff's claim have been in excess of $100,000, and he anticipates instructions to seek costs thrown away should the plaintiff be permitted to brief a second endocrinologist expert. He also indicated that should the briefing of a second endocrinologist lead to reformulation of the plaintiff's case, he anticipates instructions to raise further limitation issues in relation to that.
3. It was submitted that the second defendant is concerned that there is some unstated yet operative reason as to why the opinion of Dr Carter is no longer regarded by the plaintiff as adequate - and, at the very least, the plaintiff should identify whether he intends to maintain reliance upon Dr Carter.
4. The retention of a new expert may entail the plaintiff recasting his case and, in effect, starting again - including by way of amendment to the pleadings. It was further submitted that the plaintiff's contention that there would not be any prejudice to the defendant is not sustainable, because there is the potential for significant prejudice - not least by reason of the delay to the finalisation of these proceedings. If there is a substantial change to the plaintiff's case, the second defendant will be prejudiced by costs thrown away.
5. Although in written submissions it was submitted that the second defendant ought to be entitled to explore, by way of cross‑examination, why the opinion of Dr Carter is no longer regarded by the plaintiff as adequate, that application was not pressed at the hearing before me today - given that the notice to produce was narrowed, and the production of the document sought has resolved that aspect of the second defendant's concern.
6. Another matter that was raised in oral submissions today is the question of the adequacy of the pleading. Mr Hutchings drew the court's attention to [22] of the amended statement of claim - and suggested that it did not comply with UCPR r 31.36 in that questions of breach, causation, and damage were not properly pleaded. It was submitted that the pleading would have to be amended, in any event, on that basis - and, in his submission, it seemed inevitable that after a second endocrinologist's report was obtained, there would be a recasting of the plaintiff's case.
7. In response to that, Mr Robinson submitted that there has never been any correspondence or application to the effect that the pleading is embarrassing - and, in fact, a defence has been filed in response to it.

Consideration

1. The plaintiff seeks an order pursuant to UCPR r 31.28, that he be permitted to serve an expert report from the second endocrinologist. UCPR r 31.28 is in the following terms: 31.28 Disclosure of experts' reports and hospital reports … (1) Each party must serve experts' reports and hospital reports on each other active party-- (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving Notice of Motion. (3) Except by leave of the court, or by consent of the parties-- (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995 , is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied-- (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).
2. Supreme Court Practice Note SC CL7 is also relevant. It concerns the Professional Negligence List. Clauses 31 to 34 are directed at expert evidence in such matters. Clause 31 identifies the court's concern at the number of witnesses in such matters. Clause 32 notes that the court may reject the tender of an expert report it considers unnecessary, refuse to allow the expert to be called, and disallow costs associated with obtaining that witness. Clause 33 acknowledges that there will be cases where more than one expert may be required, but that such evidence should ordinarily be given concurrently. Significantly, cl 34 relevantly provides that: "34. In respect of the quantification of damages for death or personal injury, the following indications may be given: (a) As a guide, the number of expert witnesses giving evidence on behalf of a party shall be limited to: (i) one medical expert in any speciality, unless there is a substantial issue as to ongoing disability, in which case the number shall be limited to two in any relevant speciality concerning that disability; and (ii) two experts of any other kind.… (c) All expert evidence will be given concurrently unless there is a single expert appointed or the Court grants leave for expert evidence to be given in an alternate manner. ..."
3. It seems to me that the first question is whether I am satisfied with the explanation provided by the plaintiff as to why a second report is required.
4. As to the first basis, it seems to me that that is the weakest of the three arguments relied upon. Although it seems common ground that Professor Carter is now retired from clinical practice, it would appear that he was practising between 1997 and 2017 - and specifically in relation to the second defendant, in 2003, which is the time that the second defendant saw the plaintiff.
5. Given that any defence under s 5O of the CLA would be as to practice at the relevant time, it seems to me that that alone would not be a sufficient basis - although it perhaps has some minor relevance when combined with the other matters relied upon by the plaintiff.
6. The second reason relied upon by the plaintiff is that Dr D'Emden has a subspecialty in pituitary hormone secretion and regulation. As I understand it, so too would the second endocrinologist who the plaintiff seeks to engage.
7. Although I have not delved into the expert evidence in any great detail for the purpose of this interlocutory application, it does seem that the issues of causation are somewhat complex and that the matters raised by Dr D'Emden in his report do appear to go somewhat further in this particular subspeciality than Professor Carter has already provided expert evidence in relation to.
8. It does seem to me that the desire to get an expert with a similar subspeciality to Dr D'Emden is a proper point to make. In that regard, I have had regard to the chronology. Mr Broom has deposed that the plaintiff had proceeded on the basis that both defence experts would be relying upon Professor Boyages and it was only a week before the mediation that the reports of Dr D'Emden were then filed.
9. It seems to me that I do not need to resolve the factual dispute as to whether there was ever any express correspondence to the effect that both defendants would rely upon the same expert. I am satisfied that that was a belief properly held on behalf of the plaintiffs, given that the second defendant's expert evidence was not filed until two years after he was joined as the second defendant.
10. The third reason that was relied upon by the plaintiff was that, in this case, both the first and the second defendants have relied upon expert endocrinologists, which means, even though their cases are separate, there will effectively be two defence endocrinologists before the court and only one plaintiff, which, given the significance of s 5O of the CLA in this matter, puts the plaintiff at somewhat of a disadvantage.
11. I've had regard to that submission. As the matter currently stands, the first defendant has not served the report of Dr D'Emden on the plaintiff, and nor has the second defendant served the report of Professor Boyages on the plaintiff. It is accepted that both of them could still do so at any time, up until the hearing, subject to any forensic risk that they may suffer.
12. Although these are two separate hearings being heard together by way of convenience, being one case against the first defendant and a separate case against the second defendant, it still seems to me that there is some significance to the fact that, in this particular case, there will be two experts for the defence and only one for the plaintiff. Having regard to those three arguments, it does seem to me that the plaintiff has discharged its onus of persuading me that there is a basis to seek a second expert endocrinologist in this case.
13. The remaining question is that of prejudice to the second defendants if I do grant the order sought. I accept that it's inevitable that the second defendant will be put to some expense if another report is served, if for no other reason than addressing any new matters raised in that report. Despite this, I also accept that it's not unusual for that to occur in the context of litigation of this nature.
14. It does seem to me that it would be surprising if entirely new issue were raised, given that during the hearing of the appeal, the plaintiff tendered the proposed letter of instructions to the new endocrinologist, dated 18 November 2022, which is in very similar terms to the letter sent to Professor Carter, which was annexed to the affidavit of Mr Baram, affirmed on 12 October 2022. Mr Hutchings, quite properly, conceded that the letters were similar in their terms. In that respect, it makes it unlikely that the plaintiff is intentionally seeking to adduce new and different evidence beyond the scope of the current pleadings.
15. Having said that, Mr Hutchings properly accepted that experts will give expert evidence on what they wish to, and do not feel themselves constrained by any letter of instruction. On that basis, it cannot be said that there is no risk that there will be an amendment to the pleadings.
16. To put that another way, although that is not the plaintiff's intention, should a second endocrinologist raise a matter for the first time, that was not specifically sought but which, in the interests of the plaintiff, needs to be addressed, then the plaintiff would not be precluded from doing so. I have already addressed the fact that Mr Hutchings has also relied upon the prospect of an amended pleading on that same basis.
17. I have considered the respective submissions on the question of prejudice. It does seem to me that there is a risk that the second defendant may incur costs thrown away should a second report be obtained, should there need to be a re-pleading of the plaintiff's case. However, it seems to me that the risk of that prejudice could be met by the appropriate costs order.
18. It seems to me that another matter of significance to the disposal of this application today is that the plaintiff does not seek an advanced ruling that he be permitted to rely upon two endocrinologists at the hearing, such as occurred in Wadsworth v Hamilton [2022] NSWSC 396. The orders sought are simply that he be permitted to serve a second report.
19. I am satisfied that the plaintiff does not seek any order today that would fetter the discretion of the trial judge or preclude the second defendant from making any objections to the second report in the future. If there was to be any objection to the second report, and in particular, the plaintiff's reliance on two reports, that would clearly be a matter that the second defendant could raise before the professional negligence list judge or Cavanagh J, who, as I understand it, would be case managing this trial once it is ready for a hearing date - which leads to a further relevant factor in this matter, which is that it has not as yet been listed a hearing date. It is anticipated it would come Cavanagh J for the allocation of a hearing date sometime in early 2023.
20. For these reasons, I do propose to make the orders sought. In doing so, I wish to make it abundantly clear that I am not making any ruling as to the admissibility of the report. The practical effect of my ruling is that the plaintiff would not be precluded from relying upon any second expert report because it hasn't been served in accordance with the rules.
21. The question of whether the plaintiff is ultimately permitted to rely upon two reports will be a matter for the trial judge. It may well be that, after obtaining the second report, the court requires the plaintiff to elect as to which expert he intends to rely, but again, that is a matter either for the professional negligence list judge or the trial judge.
22. In making these orders, I have had regard to ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW). The court is required to follow the dictates of justice when making any case management orders.
23. In relation to the costs of this application, the plaintiff submitted that they should be in the cause, whereas Mr Hutchings submitted that they should be incurred by the plaintiff. I have considered the respective submissions on that ground.
24. Mr Hutchings submitted that his client's position is that the plaintiff is seeking an indulgence in bringing this application and, on that basis, he should pay the costs of it, whereas the plaintiff submitted that there is some fault of the plaintiff but, having said that, costs follow the event, and the plaintiff has been successful in this application. Having regard to those respective submissions, I am satisfied that the appropriate middle ground is that the costs be costs in the cause.
25. Accordingly, I make the following orders: 1. I order, pursuant to r 31(28) of the Uniform Civil Procedure Rules 2005 (NSW), that the plaintiff be permitted to serve an expert report from a second endocrinologist. 2. That such evidence is to be served on or before 28 February 2023. 3. That the question of any costs thrown away by the second defendant as a result of a second endocrinologist report and re-pleading of the case be reserved. 4. That costs of this application be costs in the cause.

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