Plaintiff v Defendants

2 The plaintiff is a general practitioner. The claimant was a patient of the plaintiff between 1993 and 2006. The claimant had been seeing the plaintiff in relation to pain in her right ankle in 2002 and 2003. In late 2004, the claimant complained to the plaintiff of pain in her left lower leg and ankle. The plaintiff diagnosed arthritis and treated the symptoms accordingly. When the symptoms in her left leg and ankle had not abated by about November 2005, the claimant requested a referral to a specialist. The plaintiff referred the claimant to Mr Roy Karna, a rheumatologist, who in turn referred the claimant to an orthopaedic surgeon, Dr Minoo Patel. Investigations by Mr Karna and Dr Patel revealed that the claimant was suffering from left sided tibial tendon dysfunction, including a rupture of the tibialis posterior tendon, which required a surgical course of treatment.

3 On 18 May 2007, the claimant issued proceedings in the County Court against the plaintiff alleging that as a result of his delay in making the correct diagnosis of symptoms affecting and pain in her lower left leg and ankle, she had suffered injury, loss and damage. In her statement of claim, the claimant particularised her injury as follows:

Injury to lower left leg and ankle requiring multiple surgical procedures but resulting in persisting pain, weakness, stiffness, instability and limitation of movement.

Nervousness, nervous and psychological upset; anxiety and depression.

4 Pursuant to s 28LE of the Wrongs Act, a person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury caused by the fault of another person unless the person injured has suffered "significant injury". An injury (other than a psychiatric injury) is a significant injury if the injury causes a degree of impairment to the whole person of more than 5%.[1]

5 Division 3 of Part VBA of the Wrongs Act sets out a procedure for the assessment of degree of impairment. Relevantly, an assessment must be made by an approved medical practitioner in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) ("the AMA Guides").[2] Section 28LN requires the approved medical practitioner to provide to the person seeking the assessment a certificate of assessment stating whether the degree of impairment resulting from the injury satisfies the threshold level for significant injury.

6 If the claimant intends to rely on the certificate of assessment, the certificate must be served on the person against whom the claim is made.[3] That person - the respondent - may respond in writing.[4] As occurred in this case, the response may advise the claimant that the respondent intends to refer a medical question in relation to the assessment to a medical panel for determination.[5]

7 A 'medical question' in relation to a claim for damages is a question as to whether the degree of impairment resulting from an injury to the claimant alleged in the claim satisfies the threshold level.[6]

8 A medical panel to which a medical question is referred must make an assessment of degree of impairment in accordance with Division 3. Thereafter, the panel must give to the claimant and the respondent its determination of the medical question, stating whether the degree of impairment resulting from the injury satisfies the threshold level (in this case, more than 5%).[7]

9 In the present case, the claimant served on the plaintiff a "Certificate of Assessment of Degree of Impairment arising from Stabilised Injury", dated 6 October 2008, signed by Mr M A Khan. Mr Khan certified that he had examined the plaintiff on 10 July 2008, and that he was satisfied the degree of impairment resulting from the claimant's injury was more than 5%. Mr Kahn described the injury in question as:

1. TRIPLE ARTHRODESIS LEFT FOOT with painful deformity of ankle + foot
2. Right shoulder aggravation of rotator cuff tendinopathy and ADHESIVE CAPSULITIS

10 On 12 December 2008, the plaintiff's solicitors referred a medical question in relation to Mr Kahn's assessment to a medical panel for determination. A medical panel was constituted comprising the first and second defendants ("the Panel").

11 The plaintiff's referral of a medical question to the Panel included:

(a) An outline of the 'incident', setting out the timeline of events relevant to the claimant's injury, including a description of the claimant's allegations against the plaintiff (who was referred to as 'the respondent' for the purposes of the referral). The referral said, at 'incident':

1. The Claimant alleges that the Respondent should have referred her for specialist opinion and/or radiological examinations at an earlier time.
2. The Claimant alleges that by virtue of the Respondent not referring her for specialist opinion and/or radiological examination at an earlier stage, she has suffered a significant injury.

(b) A description of 'alleged injury', in the following terms:

(a) Injury to the left lower leg and ankle requiring multiple surgical procedures, triple arthrodesis of the left foot with painful deformity of the left ankle and foot. Resultant persistent pain, weakness, stiffness, instability and limitation of movement.

(b) The Claimant has also provided an assessment of alleged injury to the right shoulder in the form of aggravation of rotator cuff tendon tendinopathy and adhesive capsulitis. The injury is not pleaded in the claimant's statement of claim and should be disregarded.

(c) The 'medical question' required by the Wrongs Act to be determined, in the following form:

Does the degree of impairment resulting from the injury to the Claimant alleged in the claim satisfy the threshold level?

12 The referral included a number of medical reports and records, and a written submission by the plaintiff.

13 The referral included two detailed reports from Mr Kahn. The first of these, dated 10 April 2007, answered a series of questions posed by the claimant's solicitors. Among the questions that Mr Kahn was asked to answer were the following:

1. Was Dr Chua negligent in not diagnosing Mrs Campbell's left ankle condition promptly?
2. If so, what should Dr Chua have done or done better to make a prompt and accurate diagnosis?

1. If the condition has stabilised, is Mrs Campbell left with any permanent impairment of her left leg?
2. If so, what is the percentage impairment measured according to the American Medical Association Guides to the Evaluation of Impairment (4th Edition)?
3. Is Mrs Campbell's level of impairment greater than it would have been if the injury had been diagnosed and treated promptly?
4. If so, what percentage impairment could Mrs Campbell have expected in the event that the injury had been properly diagnosed and treated?

14 Mr Kahn's answers were generally to the effect that the claimant's condition had not yet stabilised. However, in relation to the last question, concerning the impairment that could have been expected if the injury had been properly diagnosed and treated, Mr Kahn answered:

As I did not see Mrs Campbell at the time of the earlier symptoms, when she saw Dr Chua and complained about her right ankle, I am unable to accurately answer this question.

...

However, I can confidently say that if the condition was diagnosed at an earlier stage as indicated above in my report, when she saw her general practitioner, she was most likely not to require arthrodesis surgery and extensive procedures involving destruction of joints, stiffening below ankle level and exposing her to infections due to the extensive nature of the surgery. Hence the impairment would have been expected to be far less in percentage than it is likely to be now.

15 Mr Kahn's report of 16 September 2008 addressed the following questions:

1. Has Mrs Campbell's condition now stabilised?
2. If yes, is she left with any permanent impairment of her left leg, measured by the AMA Guidelines 4th Edition?
3. Is Mrs Campbell's level of permanent impairment greater than it would have been if she had been diagnosed promptly and undergone a relatively simple tendon repair?
4. If so, by what percentage (measured by the AMA Guidelines 4th Edition) is her impairment greater than it would have been?

16 Mr Kahn formed the view that the claimant's condition had not stabilised and recommended reassessment in 12 months time. However, he provided a very simple answer to the third question, which was whether the level of permanent impairment was greater than it would have been if the claimant had been diagnosed promptly. Mr Kahn responded, "Most probably, yes."

17 As part of the referral, the plaintiff provided detailed written submissions to the Panel. The plaintiff's submissions emphasised that the impairment arising from the injury, if any, was the impairment consequential on the claimant not being referred at an earlier stage for specialist opinion and radiological examination after 2 August 2004 and before 7 November 2005. The plaintiff submitted to the Panel that the claimant would already have had significant degenerative changes and tendon dysfunction when she presented to the plaintiff complaining of left ankle pain in August 2004. The impairment arising from the injury was therefore the impairment consequential on the claimant not being referred at an earlier stage for specialist opinion and radiological examination -

The impairment the Panel is required to assess is the impairment resulting from the alleged injury (as described in the Referral) arising from the incident (as described in the Referral). The Panel, under s 28LL(3) is bound to exclude any unrelated injuries or causes of impairment. Moreover, it must identify the degree of impairment 'resulting from the injury' (s 28LZG(4)), and ignore any impairment that does not result from the injury.

18 By letter dated 5 January 2009, the claimant's solicitors also made submissions to the Panel and enclosed certain medical reports. In their submissions, the claimant's solicitors said:

It is the claimant's contention that had Dr Chua properly diagnosed the PTTD condition in its early stages, then the claimant's condition would have been diagnosed and treated much earlier with a much more favourable outcome.

...

We would respectfully submit that this far worse outcome (or to put it conversely the lost opportunity of a far better outcome) constitutes a significant injury within the meaning of the Wrongs Act (as amended).

19 By letter dated 12 January 2009, the plaintiff's solicitors forwarded further submissions to the Panel. Again, it was submitted on behalf of the plaintiff that:

... the impairment arising from the injury, if any, is an impairment consequential on the claimant not being referred at an earlier stage for specialist opinion and radiological examination (if such earlier referral was found to be required, which is denied) after 2 August 2004 and before 7 November 2005.

20 On 22 January 2009, the Panel examined the claimant and took a medical history from her. On 19 March 2009, the Panel issued a Certificate of Determination pursuant to s 28LZG(2)(a) of the Wrongs Act and determined that the degree of whole person impairment resulting from the physical injuries to the claimant alleged in the claim did satisfy the threshold level ("the Determination").

21 On the same day, the Panel furnished a four-page statement of reasons for the Determination. The Panel stated that it had conducted an impairment assessment using the AMA Guides. It assessed impairment due to ankylosis of the left hind foot pursuant to Table 57 and the instructions on page 81 of Section 3.2f of Chapter 3, and impairment due to moderately impaired range of motion of the left ankle pursuant to Table 42 of Section 3.2e of Chapter 3 of the AMA Guides.

22 In its statement of reasons, the Panel referred to the plaintiff's submission that the impairment arising from the injury was impairment consequential on the claimant not being referred at an earlier stage for specialist opinion and radiological examination. In response to this, the Panel said:

The Panel does not accept this proposition. Such a proposition would involve the Panel embarking on an analysis of causation and liability. The Respondent [the plaintiff] itself submits that the " ... question of negligence and matters relating thereto ... are not matters for the consideration or determination of the Panel".

23 The Panel referred to the Minister's second reading speech "in 2003" to the effect that issues relating to causation are to be left to the parties or a court to determine, and concluded that it was not appropriate for it to disregard any impairment as being impairment from an unrelated injury, as submitted by the plaintiff.

24 The plaintiff challenges the Determination on three grounds. First, the plaintiff says that the Panel fell into jurisdictional error by taking into account considerations it was bound to ignore when making the Determination. Secondly, the plaintiff submits that the Panel fell into jurisdictional error by answering a question other than the medical question referred to it. Thirdly, and in the alternative, the plaintiff submits that the Panel committed error of law on the face of the record by providing reasons for the Determination which were inadequate.

25 The Panel was represented by counsel, but did not make submissions other than to direct the attention of the Court to certain matters of legislative history.

26 The claimant made submissions in support of the Panel's Determination.

27 The plaintiff submits that the Panel fell into jurisdictional error because it took into account impairment attributable to the claimant's 'dysfunction of the left ankle' when that dysfunction was long standing and predated the acts or omissions alleged by the claimant to have caused her injury. The plaintiff contends that the Panel was bound to disregard any left ankle impairment that resulted from circumstances that pre-dated her treatment by the plaintiff. Such impairment is an unrelated injury or cause, which must be excluded from assessment because of s 28LL(3) of the Wrongs Act, which provides:

For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.

28 The plaintiff also submits that the Panel fell into error because it did not answer the medical question that was referred to it but, instead, answered a different question. The medical question referred by the plaintiff was the question arising from the claimant's submission that the injury in question was the "far worse outcome" that the claimant had allegedly suffered as a result of the plaintiff's failure to diagnose and refer in a timely manner.

29 It is clear from its statement of reasons that the Panel assessed the claimant's impairment having regard to the claimant's injury 'at large'. The Panel assessed impairment arising from the physical condition of the claimant's left lower leg and ankle at the time of examination, not impairment arising from the injury allegedly caused by the plaintiff's delay in diagnosis and treatment. The Panel noted and expressly rejected the plaintiff's submission that the Panel restrict its assessment to the "impairment consequential on the Claimant not being referred at an earlier stage for specialist opinion and radiological examination".

30 Before me, the claimant submitted that the Panel took the correct approach and that to require it to distinguish the injury caused by the plaintiff from pre-existing dysfunction would be asking the Panel to make a determination as to causation, which it is not empowered to do. The Panel's function is to determine the impairment resulting from the injury, not to consider the cause of the injury. The injury in question is the injury described in the referral, namely, "injury to the left lower leg and ankle requiring multiple surgical procedures, Triple arthrodesis of the left foot with painful deformity to the left ankle. Resultant persistent pain, weakness, stiffness, instability and limitation of movement".

31 It was therefore the claimant's submission that the Panel:

• considered only the injury as specified in the referral;

• did not take into account any matter irrelevant to the question asked; and

• correctly did not deal with the question of causation with which, as a matter of law, it was not empowered to deal and which, having regard to the statement of the injury and the formulation of the question, had no relevance.

32 The claimant submitted that to assess impairment in the manner contended for by the plaintiff would require the Panel to determine the cause of the injury. The Panel answered the medical question asked of it in the referral; it did not answer a quite different question, "What was the degree of impairment resulting from the injury caused by the acts or omissions of Dr Chua?" This would be the wrong question to answer - it is not for the Panel to determine which injury was caused by the plaintiff.

33 By way of example, Senior Counsel for the claimant submitted that if he was involved in a fight in Little Bourke Street and suffered broken ribs, and then walked out onto Bourke Street, was hit by a car and suffered further injuries, the Panel would not be required to establish which injuries were caused by which incident. That would require the Panel to conduct a trial to establish the cause of the injuries. The Panel could only look at the injuries as a whole.

34 This example is initially attractive, but upon further analysis is not particularly helpful. The assessment by a medical panel under Part VBA of the Wrongs Act is carried out in order to enliven an entitlement to claim damages for non-economic loss against a person said to have caused an injury to the person seeking damages. For this purpose, Senior Counsel would have to describe his injuries by reference to the acts or omissions of the person who allegedly caused them. If the claim identified all injuries suffered by Senior Counsel as being attributable to the incident of the running over by the car (and said nothing about the incident of the fight), a medical panel might well be justified in assessing the injuries as a whole. In the present case, however, the claimant has brought proceedings against the plaintiff alleging that she suffered injury because of specific acts or omissions by the plaintiff, and that the relevant injury is the injury arising from the plaintiff's delay in diagnosis and treatment of an existing condition. The injury that is the subject of that claim is not the injury 'at large'.

35 It is true that a new definition of "medical question" was inserted in the Wrongs Act in 2003 to make clear that a medical panel does not have to determine questions of causation. The explanatory memorandum to clause 13 of the Wrongs and Other Acts (Law of Negligence Bill) 2003 states that the new definition was included to make it clear that the role of the medical panel is to assess the degree of impairment resulting from the injury or injuries that a claimant alleges in his or her claim. The panel does not determine issues of causation , that is, "whether or not those injuries could have been sustained in the incident on which the claim is based."

36 This does not support an argument that the medical panel can only consider injuries 'at large'. To the contrary, it makes plain that the panel is concerned with the injury or injuries alleged in the claim. The panel must consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged. However, that does not absolve the panel of responsibility to correctly identify - for the purposes of assessing the degree of impairment - the injury which is alleged to have been caused by the tortfeasor.

37 The requirement that the Panel assess impairment arising from the injury that occurred as a result of the incident which is the basis for the claim does not require the Panel to determine whether the plaintiff caused the injury in respect of which damages are sought. Rather, it requires the Panel to assess the degree of impairment resulting from a particular injury - the injury in respect of which damages are sought. In this case, it is the injury suffered by the plaintiff as a result of delay in the treatment and diagnosis of a pre-existing dysfunction of the lower left leg and ankle.

38 That this is the relevant injury was recognised by both the plaintiff and the claimant in the material that was provided to the Panel, including:

• the description of the 'incident' in the referral;

• the questions Mr Kahn was asked to answer by the claimant's solicitors and, in particular, in Mr Kahn's response to the question concerning the percentage by which the claimant's impairment was greater than it would have been if the injury had been properly diagnosed and treated;

• the claimant's submission to the Panel, referring to "far worse outcome" and "the lost opportunity for a better outcome".

39 Most importantly, the medical question itself required the Panel to assess whether the degree of impairment resulting from "the injury alleged in the claim" satisfied the threshold level. The injury alleged in the claim is not coextensive with the injury 'at large'.

40 This analysis is consistent with s 28LL of the Wrongs Act, which concerns the assessment of injuries arising out of the same 'incident'. Injuries arising from the one incident must be included in the one assessment.[8] Conversely, impairments from unrelated injuries or causes are to be disregarded in making an assessment.[9]

41 The brief statement of the Court of Appeal in Nguyen & Anor v Lu[10] to the effect that the judge is not to determine matters of causation in an application as to whether injury is significant injury under s 28LZN(2)(b) of the Wrongs Act does not seem to me to affect this analysis.

42 In Melbourne Health v Lloyd[11], Pagone J had to decide a similar question arising from a medical panel determination under Part VBA of the Wrongs Act. In that case, the claimant suffered from an hereditary condition which had not been treated properly. In this context, Pagone J made the following important observations about the operation of Part VBA:

• The question referred to the medical panel must identify an injury capable of being maintained as a liability;[12]

• It is important, if not essential, that there be an identity between the injury determined by the medical panel and that in respect of which a claim for non-economic loss is made.[13]

43 In other words, the injury that is considered by the panel must be referrable to the fault of another person whose conduct the complainant complains of. Pagone J observed that this does not carry with it the conclusion that the medical panel is required to answer questions of causation and fault. Rather, its role is to determine something about the nature of the injury to permit a category of compensation to be sought in appropriate form.[14]

44 In this case, the Panel assessed impairment resulting from the injury that is the subject of the claim and from a pre-existing dysfunction of the left lower leg and ankle. In so doing, it took into account considerations which it was bound not to take into account and fell into error.

45 The plaintiff further complains that the Panel fell into error by answering a question other than the medical question referred to it. It follows from what I have said that the Panel did not answer the medical question that it was required to answer. In assessing impairment from the injury 'at large', the Panel did not assess the degree of impairment from the injury that was alleged in the claim.

46 The third ground of challenge to the Panel's decision is the alleged failure to provide adequate reasons. As I have concluded that the Panel made a jurisdictional error, in that it did not answer the question that it was required to answer and, in assessing impairment, took into account matters that it was not authorised to take into account, there is no need for me to deal with the adequacy of the Panel's reasons. Suffice to say that the statement of reasons provided by the Panel was adequate to enable the identification of error.

47 The Determination of the Panel must be set aside, and the medical question referred anew to a medical panel to be decided according to law.

48 I have been asked to direct that the medical question be referred to a differently constituted medical panel. I can see no reason to require the medical panel to be differently constituted. There is no suggestion that the members in question would not answer the medical question referred to them diligently and according to law. I will leave the question of the constitution of the medical panel to the Convenor in accordance with the usual procedures under Division 3 of Part III of the Accident Compensation Act 1985.

49 I will hear the parties on the question of costs.

[1] See s 28LF "What is significant injury?" and the definition of "threshold level" in s 28LB.

[5] Section 28LW(2)(b). See also s 28LWE.

[10] Application on summons, unreported, Winneke P and Charles JA, 24 September 2004.

[11] [2009] VSC 370.