Spasovic & Anor v Sydney Adventist Hospital & Anor [2002] NSWSC 164 | Case summary

The task is one which, of course, depends upon an assessment of the case in point, and in particular upon an assessment of the nature of the issues, the content of the medical opinions already available to the parties and upon any questions that might usefully be placed before the meeting for the report of the experts." 6 With the considerations identified in Booth in mind, I proceed to examine the issues in the present case, the medical opinions that are available and what questions, if any, might usefully be placed before a meeting of experts. 7 I draw on the pleadings for an outline of the plaintiffs' case. On 16 January 1996 the first plaintiff was admitted to Sydney Adventist Hospital for treatment of injuries to his feet after he fell from a ladder. He came under the care of the second defendant and an orthopaedic surgeon. The first plaintiff remained in hospital until 20 January 1996 and shortly after his discharge on that day he suffered a severe cerebral haemorrhage with serious resultant disabilities. The second plaintiff alleges that she suffered a major depressive illness as a result of what happened to her husband. 8 It is the first plaintiff's case that whilst he was in hospital between 16 and 20 January 1996 he complained of severe headaches, light-headedness and dizziness, and that he exhibited confusion. Further, it is alleged that these complaints and symptoms were not properly addressed. 9 The negligence alleged against both defendants has been pleaded thus: "(a) Failure to properly assess the symptoms complained of by the First Plaintiff and the signs exhibited by him;

(h) Failure to correctly diagnose the First Plaintiff's condition." 10 If a conference is to be held in this case, I consider it to be reasonable that the plaintiffs would require not only Dr Dorsch but Dr Vinon, Professor Lance, Professor Eadie and Professor Brew to attend. I reach this conclusion having considered their reports. The conference would necessarily involve the outlay of significant expense. This is a factor to be weighed but does not of itself determine the outcome of this application. 11 Ms Murphy has submitted that there are five questions which could usefully be addressed at a meeting of experts. Those questions are as follows: "What was the cause of the intracerebral haemorrhage? Did the plaintiff have the intracerebral haemorrhage while in hospital? Should investigations for a potential intracerebral haemorrhage have been undertaken while he was in hospital? Would a haemorrhage or its potential have been detected if investigations had been carried out? What would have been done if a haemorrhage or its potential had been detected?" 12 What are the prospects of agreement being reached on the above questions, or any of them? 13 Having read the various reports annexed to Ms Murphy's affidavit, it seems to me that there is a marked divergence in relevant medical opinion in this case, maintained following opportunity for consideration of contrary expressions of opinion. 14 Professor Lance has furnished reports dated 7 April 1988 and 16 March 2001. In the earlier report, Professor Lance said, after recording the history upon which he acted: "Mr Spasovic was found to have an arteriovenous malformation, a condition present since birth which had not caused any previous symptoms. He fell approximately 1.5 metres from a ladder on 16.1.96 landing on his feet, causing lacerations to both feet. With hindsight the jar of landing from this fall is most likely to have initiated a slow bleed from the arteriovenous malformation. The question arises as to whether the headache of which Mr Spasovic complained following the operation should have been suspected of having a serious intracranial cause and investigations instigated at that time. 15 Professor Lance went on to address questions raised by the plaintiffs' solicitors: "1. Mr Spasovic's condition was diagnosed as a classic tension headache. Against this diagnosis is the fact that the headache was severe on occasions, was unlike any headache that Mr Spasovic had experienced in the past, was associated with dizziness and was worse on movement. The latter always arouses the suspicion of an intracranial disturbance. It would have been prudent at that time for the examining medical officer to have arranged for a consultation with a physician or neurologist. 2. It is probable that a physician or neurologist would have arranged for a CT scan of the brain before Mr Spasovic was discharged. A CT scan would most likely have shown the presence of an arteriovenous malformation with some arachnoid bleeding. 3. If the CT scan of the brain had been negative Mr Spasovic would have been advised to report again should his headache worsen or should other symptoms develop. 4. It is more likely than not that a CT scan of the brain would have demonstrated the arteriovenous malformation and some intracranial haemorrhage. 5. On the demonstration of a bleeding arteriovenous malformation neurosurgical consultation would have been obtained and early operation scheduled. 6. The outcome of surgery would depend on the situation and extent of the arteriovenous malformation. If this was superficially situated it might have been possible to have removed it without causing any neurological deficit. If it was situated more deeply its removal could have led to the same outcome as the final haemorrhage from this lesion." 16 Then on 16 March 2001, Professor Lance wrote again, after reading the report of Dr Dorsch of 28 June 1999 (referred to hereunder), stated his agreement with the conclusions therein expressed, and then went on to consider what Professor Michael Morgan had written: "Professor Michael Morgan questions the presence of an arteriovenous malformation and considers the possibility that the intracranial haemorrhage of Mr Spasovic was spontaneous and not a bleed from a pre-existing arteriovenous malformation. Professor Morgan pointed out that Mr Spasovic's blood pressure was not abnormal, which makes the possibility of a spontaneous intracranial haemorrhage less likely but does not rule it out. The report by Dr Michael Rodriguez considers the various possibilities and considers, on the balance of probabilities, that the haemorrhage was most likely due to the rupture of a pre-existing vascular malformation. Even if such were not the case it does not alter the fact that Mr Spasovic had suffered from a persistent headache since his fall on 16/1/96 and that this was different from his usual headaches that had recurred once a month before his fall. It was noted in the hospital records that Mr Spasovic had become very restless and anxious, complaining of his headaches and later on 19/1/96 of lightheadedness with the headaches. The diagnosis of tension headache would seem unlikely under those circumstances and the need for investigation with a CT scan should have been considered. Nevertheless, his headache apparently disappeared completely by 3.00 pm on 19/1/96 which gave a false sense of reassurance. I consider that the balance of probabilities is that there was an initial bleed following Mr Spasovic's fall caused by jarring and that this subsequently became a severe intracerebral haemorrhage on 20/1/96. Answers to questions raised in your letter of 6/3/01 : 1. The fluctuating intensity of Mr Spasovic's headache and the fact that it was mild on occasions could have given a sense of false security. Nevertheless, I think that a CT scan might reasonably have been ordered at that time…" 17 On 8 June 1999 Dr Vinen addressed a series of questions posed by the plaintiffs' solicitors: " 1. What, in your opinion, was the likely cause of the headaches experienced by the Plaintiff during his admission? In considering this question, please advise us as to the other possible causes and your view as to the reasons why they were not the likely cause of the headache. It is possible and in fact very likely that Mr Spasovic's headache was due to his intracerebral haemorrhage which in all likelihood occurred at the time of his injury on 16 January 1996 at approximately 1830 hrs. Whilst he did not strike his head or lose consciousness a sudden deceleration such as falling approximately 2.5 metres can result in tearing of blood vessels in the cranium resulting in an intracerebral haemorrhage. His assessment on admission is very brief and does not follow the accepted practice of assessing a patient who has sustained a traumatic injury. This approach, as espoused by the Early Management of Severe Trauma (EMST) Programme by the Royal Australasian College of Surgeons requires medical staff to thoroughly assess each and every patient including situations where patients appear to have an obvious injury. 2. When, on the balance of probabilities, did the Plaintiff's cerebral haemorrhage commence? The nexus between the injury on 16 January 1996 and Mr Spasovic's complaint of headache the following morning cannot be denied. The fact that he received two injections of a narcotic (Pethidine) at 0300 and 1600 hrs in all likelihood would have masked any headache or at the very least removed the symptoms with the result that he subsequently complained that he had a headache on 17 January 1996 when the effects of the narcotic wore off. 3. Should the possibility of a cerebral haemorrhage have been considered at some stage during the Plaintiff's admission? Given that Mr Spasovic had sustained an injury secondary to a 2.5 metre fall associated with sudden deceleration when he struck the ground, consideration should have been given to the possibility that his headache was due to an intracerebral problem arising as a result of his fall. At the very least it should have been considered that he had intracerebral pathology due to the fall and a neurosurgery review and CAT scan should have been arranged immediately. 4. If you answer yes to question 3:… (b) When in your opinion should that diagnosis have been considered? The diagnosis should have been considered at the time Mr Spasovic first complained of headache. As I indicated above Mr Spasovic should have had a thorough review based on EMST Guidelines when he first presented, this may have in fact identified the problem earlier. (c) What investigations or other steps should have been taken upon that diagnosis being considered? Once Mr Spasovic had complained of a headache consideration should have been given to the fact that it may have been due to his fall and neurosurgical consultation and a CT arranged immediately. 5. Had the diagnosis of cerebral haemorrhage been considered and appropriately investigated prior to the Plaintiff's discharge from hospital, what, on the balance of probabilities would the investigations have revealed? If Mr Spasovic had neurosurgical consultation and a CT scan at the time he first complained of a headache there is every reason to believe that his cerebral haemorrhage would have been identified. 6. If the investigations revealed a cerebral haemorrhage, what would have been the appropriate treatment regime to implement? Mr Spasovic should have been referred immediately for neurosurgical consultation and management. ………….. 8. In relation to the diagnosis of 'classic tension headache' made by Dr Cutter, CMO, on 18 January 1996: (a) Was that an appropriate diagnosis to reach given the history at that time? Whilst it is possible that Mr Spasovic had a 'classic tension headache' the fact that he had a headache subsequent to a significant fall should have raised the question as to whether there is a relationship between the headache and the fall. A traumatic cause of his headache should have been excluded. To describe a headache following a fall such as that sustained by Mr Spasovic as a 'classic tension headache' is fraught with danger. 'Classic tension headache' may have been one of the causes of Mr Spasovic's headache. There are a number of other causes including intracerebral haemorrhage. (b) If not, what different diagnosis should Dr Cutter have considered? The major differential diagnosis Dr Cutter should have considered in relation to Mr Spasovic's headache was that a traumatic injury secondary to his fall. This would have been the most important differential diagnosis to have considered and exclude. (c) What steps should Dr Cutter have taken to obtain a detailed history as to the Plaintiff's background of headaches? A detailed history of Mr Spasovic's headaches should have been taken by Dr Cutter, this would not of necessity have excluded the possibility of other causes including intracerebral haemorrhage secondary to a traumatic injury. ……………. 10. In relation to the attendance of Dr Brooks on the Plaintiff at 9.30 am on 19 January 1996: (a) What possible diagnosis should Dr Brooks have considered? Dr Brooks should have considered that Mr Spasovic's headache was due to intracerebral haemorrhage or other pathology related to his fall. (b) What investigations or other steps should Dr Brooks have taken? I believe it was appropriate that Mr Spasovic have an urgent CT scan and a neurosurgical consultation." 18 Professor Dorsch reported on 28 June 1999, basing his opinion also of course on assumed facts. He opined that the most likely cause of the first plaintiff's headaches was "a sentinel or warning intracranial haemorrhage due to his arteriovenous malformation or AVM…" He considered on the balance of probabilities that this haemorrhage occurred at the time when the first plaintiff's headache began and that appropriate consideration to the likely diagnosis would have involved a cranial CT scan or a consultation with a neurosurgeon or a neurologist. It was this expert's opinion that, on the balance of probabilities, the CT scan would have revealed a subarachnoid or small intracerebral haemorrhage. Professor Dorsch concluded: "In summary, assuming the accuracy of the statement of assumed facts, I feel that during Mr Spasovic's admission to the Sydney Adventist Hospital the diagnosis of an intracranial haemorrhage should have been made. If that had been the case, on the balance of probabilities his outcome would not have been as bad as it is. Admittedly, if he had a deeply placed left frontal or internal capsular AVM, there is certainly a risk that the appropriate surgery could have caused considerable neurological deficit; this is, however, unlikely to have been as severe as the deficit that resulted from the large intracranial haemorrhage that occurred on the 20th January 1996. In answer to your question of 10th June 1999, I would estimate that the convalescence from appropriate AVM surgery would certainly have been longer than that needed for the surgery to his feet. Allowing for up to a 20% likelihood of significant neurological deficit requiring active rehabilitation after such surgery, I would estimate an average of three months absence from work following that surgery." 19 Professor Eadie expressed his opinion in a report of 15 March 2001. His interpretation of events on the history that he recorded was that at the conclusion of the fall from the ladder there was insult within the skull that could have induced local bleeding within the brain. Looking at the hospital chart, he did not consider that what was there recorded afforded a strong indication for further investigation of the headache but, if the severity was such as the first plaintiff and his family stated, there was reason to investigate and the complaint of confusion, if it existed, was of cardinal importance. On the history from the lay witnesses, Professor Eadie considered that a detailed clinical neurological assessment and a CT of the brain were appropriate. Professor Eadie concluded his report: "In essence, I think the argument about whether Spasovic's care at the Adventist Hospital fell short of reasonable standards turns to a substantial extent on the issue of whether Spasovic's family or Spasovic made the Hospital staff aware of his confusion and, less importantly, of the severity of his headache. If they did, it would appear reasonable to have expected that neurological assessment would then have taken place and the use of aspirin have been avoided. There is a reasonable chance that these measures, if carried out, would have minimised residual injury from the events. However, on the basis of what is contained in the Hospital's records, it probably would have required an unusually high index of suspicion about the cause of the headache, and a rather inspired decision, to justify detailed neurological investigation whilst Spasovic was an in-patient." 20 Then Professor Brew stated his opinion in the report of 12 September 2000. It was his opinion that the first plaintiff sustained a "premonitory haemorrhage" as a result of the traumatic injury some time between that time and the time of his discharge from hospital. He considered that the first plaintiff's complaints of persistent headache over several days should have prompted further assessment. Professor Brew thought that the first plaintiff should have been assessed neurologically. Even if that examination detected no abnormality, persisting headache warranted a CT scan or an MRI procedure. On the balance of probabilities, Professor Brew considered that a better outcome would have been achieved had there been an earlier diagnosis. Professor Brew regarded as "highly improbable" the proposition that the haemorrhage was a sudden unrelated event occurring after discharge from hospital. 21 I turn to the reports of the experts qualified by the defendants. 22 Professor Michael Morgan provided a number of reports dated 23 February 1999, 7 July 1999, 7 July 2000 and 9 March 2001 (two reports). 23 In Professor Morgan's earliest report he expressed opinions based upon an assumed history defined by him. He did not consider that a CT scan would have demonstrated any lesion, nor did he consider that circumstances warranted any such investigation. It was Professor Morgan's opinion that the intracerebral haemorrhage occurred dramatically not before but after discharge from hospital. Events in hospital did not warrant an anticipation that a haemorrhage would occur. In the first of the reports of 7 July 1999, Professor Morgan considered Dr Vinen's report of 8 June 1999 and made it clear in that report that he did not agree with what Dr Vinen had written. Further, he saw nothing in Dr Vinen's report which influenced him to change the opinions previously stated. 24 Then, in the report of 7 July 2000, Professor Morgan wrote considering Dr Eadie's reports. Once again, Professor Morgan stated that he did not believe that the haemorrhage occurred in hospital and he did not believe that the CT scan would have demonstrated a haemorrhage. It seems to a me a reading of the report of 7 July 2000 conveys that Professor Morgan does not agree with what Dr Eadie had earlier written. 25 On 9 March 2001, in one of the reports of that date, Professor Morgan commented on Professor Brew's report. It seems to me that, again, a reading of that report indicates disagreement with what Professor Brew had opined. 26 Finally, in his second report of 9 March 2001, Professor Morgan referred to a report from Dr Rodriguez commenting on pathological investigation and opined that what Dr Rodriguez wrote did not accord with Professor Dorsch's contention: "Whilst Dr Rodriguez implies that there may have been sampling errors and the abnormal vessels may have been missed by Prof Dorsch. This was not Prof Dorsch's contention and in fact he stated that the abnormal vessels were sent for histological examination. That hypertension could be responsible for such a haemorrhage is quite possible given that hypertension is the most common cause for haemorrhage in such locations. The hypertension can be of recent onset or acute and certainly does not have to be prolonged or long standing. On the balance of probabilities I believe that the cause for haemorrhage was hypertension rather than the trauma itself. I do not believe that the early reports of headache predating neurologic deficits represent early haemorrhage. Haemorrhage in the deep hemisphere is away from pain sensitive structures and unless coma occurs very rapidly is proceeded by neurologic deficits prior to the onset of headaches. In fact, headaches do not always have to accompany such intracerebral haemorrhage. For headaches to occur in a haematoma in this location the haematoma must be extremely large (thus would be producing a very significant neurologic deficit) or adjacent to a pain sensitive structure such as the dura or veins (which by the reports this was not the case). I believe that in the balance of probabilities that the patient sustained headaches in hospital after admission for reasons other than the presence of an intracerebral haemorrhage and after discharge sustained an intracerebral haemorrhage leading to his catastrophic neurological decline." 27 Dr Terenty furnished reports of 26 November 1998 and 11 May 2000. Dr Terenty's opinion was that the first plaintiff had an undiagnosed intracerebral arteriovenous malformation and considered it highly unlikely that the fall caused that malformation to bleed. Dr Terenty remarked that if there was confusion demonstrated by the first plaintiff and severe headache complained of, one would have expected this to have been recorded in the hospital notes. 28 Dr Besser wrote a number of reports, the earliest of which was dated 27 May 1998. In his opinion there was no evidence that there was any departure from appropriate professional standards in the treatment of the first plaintiff and, indeed, there was no indication that the first plaintiff suffered an intracranial haemorrhage during his stay in the Seventh Day Adventist Hospital. On the history which he assumed, Dr Besser did not consider that there were any significant signs or symptoms relating to the head and he did not consider that any diagnostic procedures should have been undertaken concerning the headache. Commenting on the CT scan performed after the first plaintiff was admitted to Westmead Hospital (following the haemorrhage), Dr Besser wrote on 14 May 1999 that nothing there made it likely that any haemorrhage had occurred during the first plaintiff's stay at the Seventh Day Adventist Hospital and Dr Besser concluded on the balance of probabilities that no abnormality would have shown up on a CT scan had one been undertaken before the first plaintiff's discharge from that hospital. 29 Later Dr Besser referred to Professor Brew's report disagreeing with the latter expert's opinion that a large intracranial haemorrhage was most likely due to a large AVM. On the contrary, according to Dr Besser, it is well documented that small high pressure AVMs are most likely to lead to very large intracerebral haematomas. 30 The above review of the medical evidence highlights the divergence in medical opinion. 31 Ms Murphy provided in the course of submissions a useful summary of the views of the experts on the various topics suggested for consideration at a meeting. I set this summary out because it seems to me it does highlight where the experts stand presently concerning the questions which the second defendant, through Ms Murphy, proposes should be addressed at a joint conference: "What was the cause of the haemorrhage? · Dr Terenty for the defendants says she cannot be sure whether it was a small AVM which was destroyed by the haemorrhage or a spontaneous haemorrhage into the basal ganglia. · Professor Morgan for the defendants is of the view that it was a basal ganglia haemorrhage. · Dr Besser relies on the pathology report that the most likely cause of the haemorrhage was a small AVM but notes there is no evidence of the AVM on the CT scan. · Dr Lance for the plaintiffs says the jar of the fall initiated a slow bleed from the AVM. · Dr Eadie says when he fell the plaintiff's body and skull may have descended a little more rapidly than his brain within the skull so that when his fall abruptly terminated, the inside of the top of his skull may have impacted on the upper surface of the underlying brain. He says this could provide a mechanism for an injury in the parietal region which could have led to local bleeding within the brain. · Dr Rodriguez for the plaintiffs says the histological findings are not diagnostic of an AVM but concludes, on the balance of probabilities that the haemorrhage was most likely due to rupture of a cryptic or occult vascular malformation. 2. Did the plaintiff have the intracerebral bleed while in hospital? s Dr Besser for the defendants says there was no indication the plaintiff had the bleed while in hospital. He says that it occurred after discharge, just before the collapse. s Professor Morgan for the defendants says he did not have the bleed while in hospital. s Dr Terenty for the defendants says he had a premonitory bleed while in hospital. s Dr Eadie for the plaintiffs says it is probable that there was an initial haemorrhage in the brain which began at the time of the fall which was exacerbated by aspirin prescribed by the second defendant. s Professor Brew for the plaintiffs says that it is likely he sustained a premonitory bleed in hospital. s Professor Dorsch for the plaintiffs says he had a warning bleed while in hospital. 3. Should investigations have been undertaken in hospital? s Dr Besser for the defendants says no. s Professor Morgan for the defendants says no. He says that if there was suspicion of an intracerebral haemorrhage given the history, the investigation of choice would be a non-contrast CT scan. He says if there was an AVM, an MRI scan or cerebral angiogram may have diagnosed it. He says there was no indication for performing these investigations in this case. s Professor Lance for the plaintiffs says a consultation should have been arranged with a physician or neurologist who would have arranged for a CT scan to be performed. s Dr Eadie says that on the basis of the hospital chart, there was probably no strong indication for further investigation. He says however that if the severity was as Mr Spasovic and his family state, then there was reason to investigate. He says appropriate investigations would have been a detailed clinical neurological assessment and CT or MRI done of the brain, and that CT scanning was probably the investigation of choice. s Professor Brew for the plaintiffs says that he should have been examined neurologically. If this was unremarkable, the fact that the plaintiff had a persistent headache of increasing severity spanning several days, should have prompted CT or MRI. s Professor Dorsch for the plaintiff says that if the headache was as severe as described to him, on 18 January 1996 treating doctors should have sought a cranial CT scan or consultation with a neurosurgeon or a neurologist. 4. Would an AVM have been detected by CT scan? s Dr Besser for the defendants says it may have shown up on a CT scan with contrast. s Professor Morgan for the defendants says a CT scan done prior to the collapse was unlikely to have demonstrated any underlying pathology. He says an AVM of the very small size suggested by the pathology may well have been completely undetected even with a contrast CT scan or an MRI scan. If the haemorrhage was a spontaneous intracerebral haemorrhage without an underlying vascular abnormality, which he believes it was, no investigation would have made the diagnosis. A non-contrast CT scan would fail to identify any abnormality whether it an arteriovenous malformation or due to a spontaneous basal ganglia haemorrhage. A CT scan without contrast would have been the investigation of choice if investigation was appropriate. s Dr Terenty for the defendants says it is possible but not certain that it would have been detected with a CT scan without contrast but in any event she would not have operated on it until progression occurred. s Professor Lance for the plaintiffs says a CT scan would most likely have shown the presence of an AVM with some arachnoid bleeding. s Professor Brew for the plaintiffs says that for an AVM to have led to such a large intracranial haemorrhage it would most likely be of a size that would have been seen on a CT scan or certainly on MRI. s Dr Dorsch for the plaintiffs says that on the balance of probabilities CT scan would have revealed a subarachnoid or small intracerebral haemorrhage which would have led to further investigations which would have detected the AVM. 5. What would have been done if it had been detected? s Dr Besser for the defendants says once the haemorrhage occurred, surgery would not have altered the neurological outcome. s Professor Morgan for the defendants believes that there was no haemorrhage while in hospital so if an AVM was diagnosed, in all likelihood, Dr Brooks would have referred the patient to a neurosurgeon for further management. Professor Morgan says the neurosurgeon would probably have assumed the headaches were unrelated to the AVM and would have planned an elective visit on the next available appointment. s Dr Terenty for the defendants says that if there was a pre-monitory bleed, it would have been deep within the basal ganglia and would have been in-operable and the doctors would have simply had to stand by helplessly and watch him have a more extensive haemorrhage. Neurosurgical intervention prior to his massive haemorrhage would not have been appropriate as surgery is a lifesaving procedure and does not otherwise alter the neurological outcome. s Dr Lance for the plaintiffs says that on the demonstration of a bleeding AVM, a surgical consultation would have been obtained and early operation scheduled. If the AVM was situated deeply (which it was) its removal could have led to the same outcome as the final haemorrhage. s Dr Eadie for the plaintiffs says that if the haemorrhage had been diagnosed earlier the plaintiff would have been kept in hospital until detailed neurological observations had been undertaken. There is a moderate possibility that a further haemorrhage would have occurred before surgery was carried out even if he was kept under close observation, however Aspirin would not have been prescribed and this probably led to further bleeding. s Professor Brew for the plaintiffs says that on the balance of probability, it is reasonable to expect a better outcome. He says it is likely imaging would have shown a degree of intracerebral haemorrhage and that drugs likely to increase the risk of haemorrhage such as Aspirin would have been avoided. The plaintiff would have been closely monitored in regard to blood pressure and with more intensive monitoring, a change in his clinical state would have been detected at an earlier stage which would have prompted neurosurgical intervention. He concedes however that 'by and large, removal of an intracerebral haematoma is carried out only in the context of a deteriorating clinical condition'. s Professor Dorsch for the plaintiffs says that craniotomy would have been done and the AVM excised. On the balance of probabilities, if diagnosed before the second haemorrhage, the plaintiff's outcome would not have been as bad as it is. Appropriate surgery could have caused neurological deficit however although this is unlikely to have been as severe as the deficit which ultimately occurred. He says there was a 20% likelihood of significant neurological deficit after surgery to remove the AVM which would have rendered the Plaintiff incapable of working for about 3 months." 32 A complicating feature in this case is that the first plaintiff's presentation, symptoms and complaints in hospital may well bear upon the determination of the questions suggested for consideration by Ms Murphy, or at least several of them. There is, it would seem, a very real issue as to the nature and extent of the first plaintiff's symptoms and complaints in the relevant period in hospital. On one view which may ultimately be accepted by the court, the symptoms and complaints of headache were relatively mild and had passed some time prior to the first plaintiff's discharge from hospital. On the other hand, there is evidence, apparently, that the complaints of headaches were significant and that they persisted and, as is asserted in the pleadings, the first plaintiff suffered from dizziness and was in a state of confusion. Whether the symptoms were mild and had passed on the one hand or whether they were more severe and persistent on the other presents an issue which can only be determined at trial. The Court has been informed that the defendants have served statements from nine nurses and that the plaintiffs have served statements of three lay witnesses. So it is that the doctors at any conference would have to be presented with alternative assumptions of fact and could only state their opinions accordingly. It seems to me to be unlikely that opinions expressed on two different assumed histories will assist in early resolution of this case or the various questions suggested for consideration. There are, in addition, significant underlying differences in medical opinion between the experts. 33 Having regard to what I consider to be the features which contra-indicate a successful outcome to the proposed conference, I am not satisfied that there exists a reasonable expectation that such conference would result in agreement on any one of the issues put forward for consideration. I am not satisfied that the possible utility test, as I expressed that test in Booth, is met on this application. Accordingly, I have concluded that a conference should not be ordered. 34 The notice of motion is therefore dismissed and the second defendant is to pay the plaintiffs' costs on the motion.

Spasovic & Anor v Sydney Adventist Hospital & Anor

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