Rusan by his tutor Grace Rusan v The Congregation of Religious Sisters of Charity of Australia trading as St Vincents Private Hospital; ; Rusan v The Congregation of Religious Sisters of Charity of Australia trading as St Vincents Private Hospital Sydney Ltd
[2018] NSWSC 1843
Supreme Court of NSW|2018-11-30|Before: McCallum J
HER HONOUR: These are proceedings for medical negligence commenced by Mr Adam Rusan by his tutor Grace Rusan against the entity that conducts St Vincent's Private Hospital and two medical practitioners. The proceedings arise out of a failed intubation of the plaintiff at a time when he had been admitted to hospital for a medical procedure. The plaintiff's medical condition is extremely poor and is rapidly deteriorating.
In those circumstances, the solicitors for the plaintiff have filed a notice of motion seeking an order for expedition of the proceedings. The motion invoked the Court's power under s 61 of the Civil Procedure Act 2005 (NSW) to give "such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings." Separately, the motion seeks an order requiring the parties to participate in mediation before 19 December 2018. In aid of the application for expedition the motion also seeks an order that the proceedings be allocated a hearing date.
The application poses a challenge for the third defendant in particular, who was joined to the proceedings only in August of this year. Expedition including the allocation of a hearing date was opposed by him on the basis that it would not give him an opportunity properly to prepare his defence.
During the course of the hearing of the application, however, a measure of cooperation between the parties has at least seen agreement as to an order for mediation. The plaintiff abandons his application for an order requiring that to occur before 19 December 2018 and instead the plaintiff and the third defendant agree, without opposition by either of the other defendants, to an order that the parties participate in mediation on or before 12 April 2019. The parties agreed on directions leading up to that point, subject to two conditions sought by the third defendant, to which I will return.
Mr Walsh SC, who appears for the third defendant, maintained his opposition to the allocation of a hearing date. Detailed written submissions were provided addressing that issue and plainly there is some force in the concerns raised. However, the simple fact is that, for a matter with a two week estimate, the dates the Court has available are 25 February or 6 May or else a date so far later in the year that the list clerk would not deem it an expedited matter. The evidence relied upon in support of the application has persuaded me that there is a sufficient risk of the plaintiff dying before the end of next year to warrant fixing the date of 6 May 2018 and requiring the parties to work towards that date.
I note that the plaintiff's estimate for the hearing is two weeks whereas the third defendant is concerned that the hearing estimate might properly be two to three weeks. From the material I have seen, and noting that the parties will by the time of the hearing date (assuming the mediation fails) have had the benefit of the mediation, which is likely to shorten matters, I am confident that it is appropriate to fix the matter for 6 May with a two week estimate.
I return to the conditions the third defendant seeks in respect of the future preparation of the proceedings. This already complicated medical picture is further complicated by the fact that, whereas at the time of his admission when the alleged medical negligence occurred the plaintiff was morbidly obese, he has since suffered such deterioration in his health that he now weighs less than 50 kilograms. He has now been admitted to Westmead Hospital, initially in intensive care. In circumstances where there have been grave concerns as to the standard of care and health support he was receiving prior to his admission to hospital, he the Public Guardian has been appointed in relation to his health care. That is a circumstance which, at once, both supports the need for expedition in the present proceedings and complicates the process by which that might be achieved.
Counsel for the plaintiff, Mr Graham SC, informed the Court that the Guardian has been appointed as a continuing guardian for a period of four months from 17 October 2018. The terms of the appointment are as follows:
"This is a limited guardianship order giving the guardian custody of Adam Rusan to the extent necessary to carry out the functions below:
Access. To decide what access Adam Rusan has to others and the conditions of access.
Health care. To decide what health care Adam Rusan may receive.
Medical/dental consent. To make substitute decisions about proposed minor or major dental treatment where he can't give a valid consent.
In exercising this role, the guardian shall take all reasonable steps to bring Adam Rusan to an understanding of the issues and to obtain and consider their views before making significant decisions."
In opposing the expedition order, Mr Walsh tendered an email from a social worker at Westmead Hospital to the solicitor for the plaintiff, the terms of which suggest that, as the Public Guardian now has the authority to determine who has access to the plaintiff, any attendance upon him for the purpose of preparing a medicolegal report "will need to go through the Public Guardian as we are not in a position to make this decision." A concern rightly raised by Mr Walsh is that a situation may arise where a medicolegal expert appointed by one of the defendants is precluded from examining the plaintiff due to either a dispute or some misapprehension as to the proper exercise of that power.
I should make it abundantly clear, based on my consideration of the material relied upon by all parties in support of the present application, that subject to any particular medical issue on any particular day, it is plainly in the plaintiff's interests for medicolegal experts to have access to him. If medicolegal experts are denied access to the plaintiff for the purpose of examining him, they will be delayed in the preparation of their reports. That in turn will put the defendants, through no fault of their own, in breach of the timetable that is to be fixed in order to achieve expedition of the proceedings and that in turn will jeopardise the hearing date. As already noted, if the matter cannot be heard in the dates that are available in early May of next year, it is likely that it will not be heard until well into the end of 2019 and possibly later, in which event there is a real risk that the plaintiff may die before the matter is heard.
The articulation of those concerns should be enough to bring home the importance of facilitating access to the plaintiff for the purpose of the preparation of medicolegal reports, which are different from attendance by medical practitioners for the purpose of treatment.
I propose to grant the parties liberty to apply to have these proceedings re-listed before me at any time before the end of January for the purpose of resolving any dispute in that respect in which event, subject to hearing from the Public Guardian, I would be minded to exercise any inherent power I may have to facilitate the process.
The two conditions Mr Walsh sought to have imposed on the case management directions towards a mediation were, first, that the expert be granted access to the plaintiff to examine him in a timely way before the time when the defendant's expert evidence is due and, secondly, that Westmead Hospital notes be made available.
As noted by Mr Graham, the second problem can readily and more easily be addressed by an issue of a subpoena but the first is potentially problematic and hopefully will be resolved by the comments I have made.
For those reasons, I am persuaded that it is appropriate to make directions to expedite the hearing of the proceedings and to make the mediation order and the orders for the service of experts' reports outlined by the parties.
[2]
Orders
1. I fix the matter for hearing on 6 May 2019 with an estimate of two weeks.
2. Pursuant to s 26 of the Civil Procedure Act I refer the proceedings to mediation by a mediator to be agreed between the parties, such mediation to be held on or before 12 April 2019. I note the obligation of the parties under s 27 to participate in good faith in the mediation.
3. I direct the defendants to serve their evidence on or before 29 March 2019. I note that the defendants' compliance with that order is subject to their experts being granted access to the plaintiff for the purpose of examining him in a timely way before that date.
4. I order that the costs of today's application be costs in the cause.
[3]
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Decision last updated: 10 December 2018