TABET, by her Tutor, SHEIBAN, v. MANSOUR [2005] NSWSC 908 - NSWSC 2005 case summary — Zoe

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TABET, by her Tutor, SHEIBAN, v. MANSOUR [2005] NSWSC 908

[2005] NSWSC 908

Supreme Court of NSW|2005-07-05|Before: Hall J, Howie J

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Court

Supreme Court of NSW

Decision date

2005-07-05

Before

Hall J, Howie J

Source

Original judgment source is linked above.

Judgment (65 paragraphs)

[1]

Background 3 There are two notices of motion, one by the plaintiff and one by the first and second defendants. 4 On 1 March 2005, the solicitors for the plaintiffs sought the consent of the solicitors for the first and second defendants to an amendment in support of the Statement of Claim (Annexure "G" to Mr. Miller's affidavit of 24 February 2005). On 3 March 2005, the solicitors for the first and second defendants stated that they did not consent to the proposed amendment and recorded their anticipation that a notice of motion would be served by 4 March 2005 in accordance with orders made by Justice Howie on 25 February 2005. 5 In the plaintiff's notice of motion, filed on 4 March 2005, orders are sought in the following terms:- 1. Pursuant to Order 20.1 of the Supreme Court Rules, the plaintiff be granted leave to amend the statement of claim to that which is Annexure 'G' to the affidavit of John Russell Miller sworn 24 February 2005. 2. Leave to extend the time to serve the reports of Dr. Martin Berry dated 25 March 2003, 21 July 2003, 28 October 2003 to 21 February 2005 and to serve the reports of Dr. Geoffrey Klug dated 21 January 2004 to 13 February 2004 and dated 11 February 2005 to 21 February 2005. 3. Leave to rely upon the expert reports of Dr. Martin Berry dated 25 March 2003, 21 July 2003 and 28 October 2003 and Mr. Geoffrey Klug dated 21 January 2004 and 11 February 2005 and leave to adduce the evidence which these reports cover in substance, at trial. 4. That the application for Orders 2 and 3 of this motion be heard by the trial judge at the commencement of the trial. 5. Such further or other orders as this Honourable court deems fit. 6. Costs should motion be opposed. 6 Mr. G.K. Burton, SC., who appeared with Mr. R.C. Pinkus of counsel for the plaintiff argued the application only in terms of proposed order 1 and sought, in accordance with paragraph 4 of the notice of motion, that the application for orders 2 and 3 be heard by the trial judge at the commencement of the trial. 7 The first and second defendants relied upon a further amended notice of motion filed in Court on 5 July 2005 in which the following orders were sought:- "1. In the event that the court grants leave to the plaintiff to file the amended Statement of Claim, a copy of which is attached as Annexure E to the affidavit of Anna Lee Walsh deposed 1 April 2003, the plaintiff's action against the first and second defendants be struck out pursuant to Part 14C Rule 6(4) of the Supreme Court Rules (SCR) for failure to serve expert reports in accordance with Part 14C Rule 6(1) SCR. 2. In the alternative, that the proceedings be dismissed pursuant to Part 13 Rule 5 on the basis that no reasonable cause of action is disclosed. 3. That the plaintiff pay the first and second defendants' costs up to and including 27 July 2003 on a party/party basis as agreed or assessed. 4. That the plaintiff pay the first and second defendants' costs on an indemnity basis from 28 July 2003. 5. Such further or other orders as the court sees fit." 8 The substantive proceedings were commenced by Statement of Claim filed on 30 March 2001. The pleading records that the plaintiff, who was born on 6 November 1984, and who was aged six years at the time that her parents sought medical attention for certain medical symptoms, was taken to Royal Alexandra Hospital for Children where she was first examined by Dr. Mansour, the first defendant, and later, the second defendant, Dr. Gett. It is unnecessary for the purposes of the present application to record in detail each of the events that occurred in the period 18 December 1990 (the date of commencement of symptoms) to 21 May 2001 (the date upon which radiotherapy commenced). I will seek to confine reference to the principal events as they pertain to the present application.

[2]

Medical history 9 The plaintiff's complaints of headache and vomiting continued between 18 December 1990 and 28 December 1990 when she was referred to the Outpatients Department at the Royal Alexandra Hospital for Children. A history was obtained that her brother had developed varicella with a rash appearing on 16 December 1990. On 31 December 1990, the plaintiff developed a rash which appeared consistent with a diagnosis of chicken pox. She had been admitted on 28 December and was discharged on 31 December 1990. 10 The plaintiff was re-admitted to the hospital on 11 January 1991. The history indicated that she had continued to complain of a headache, intermittent abdominal pain and vomiting. On the day of her admission, attempts at lumbar puncture was attempted but they were unsuccessful. It was considered that the plaintiff was suffering from viral encephalitis. 11 On 13 January 1991, the plaintiff had a transient episode of unequal pupils and was described as irritable, drowsy and complaining of headache. At approximately 11.00 am on that day, a lumbar puncture was performed at the L3/4 level and was said to reveal low pressure and changes on microscopy consistent with encephalitis. 12 The plaintiff's condition deteriorated on 14 January 1991. She suffered from a seizure. A CT scan was performed which revealed a posterior fossa tumour with evidence of obstructive encephalitis. An EEG was performed shortly after which revealed an abnormal recording consistent with severe elevation of intra-cranial pressure and/or varcilla encephalitis. 13 Following improvement on 15 January 1991, a posterior fossa craniotomy was undertaken on 16 January 1991 with excision of a mid-line tumour, said to be a subtotal excision and at operation mention was made that there was evidence of tumour spread over the surface of the cerebellum. 14 On 22 February 1991, the plaintiff commenced chemotherapy. 15 On 26 February 1991, the plaintiff had an MRI scan of her head and spine said to reveal quite extensive disease. 16 On 30 April 1991, a repeat MRI scan was said to show evidence of improvement. 17 On 21 May 2001 (some four months plus from the time of the posterior fossa surgery), radiotherapy commenced. High dose curative (neuaxis) radiotherapy is said to have continued through until 2 July 1991. 18 Following the above treatment, there was improvement in the plaintiff's condition and a subsequent MRI scan on 21 August 1991 revealed a regression of her disorder. She had a further course of chemotherapy between 26 August 1991 and 16 March 1992. However, the plaintiff's improvement was limited and medical reports indicate that she has been left with substantial impairments in the nature of motor disabilities as well as impairment of cognitive and learning abilities.

[16]

The proposed amendments to the statement of claim 23 The application for leave to amend the Statement of Claim seeks to make some minor amendments to paragraphs 5, 8, 9, 10, 11, 15 and 16 of the Statement of Claim. It is unnecessary for the purposes of this application to refer to them for, as I understand it, the defendants have no objection to those minor amendments being made. Minor amendments are sought in respect of particulars concerning Dr. Mansour, paragraph (a), an allegation of breach of duty by Dr. Gett and an amendment to particulars as to damages in paragraph 36. 24 The proposed amendments that are central to the dispute in this application are set out in the proposed Amended Statement of Claim in paragraphs 26 to 34 inclusive. I reproduce those paragraphs below:- 26. On 14 January 1991, Reema underwent surgery to insert an external ventricular drain to relieve hydrocephalus. 27. On 16 January 1991, Reema underwent a subtotal resection of the brain tumour. 28. Cerebrospinal fluid obtained from the lumbar puncture on 13 January and at the operation on 16 January was not sent for cytological analysis which, if done, would have indicated the presence of absence of tumour cells in the CSF. 29. Cerebrospinal fluid analysis performed on CSF taken on 7 and 13 February 1991 demonstrated the presence of tumour cells. Magnetic resonance imaging performed on 22 February demonstrated marked meningeal disease with metastases in the spine. 30. Between 22 February 1992 and 30 April 1993, Reema received high dose chemotherapy. 31. Between 21 May and 2 July 1991, Reema received high dose curative radiation therapy under general anaesthesia to the brain and spine. 32. Between 26 August 1991 and 16 March 1992, Reema underwent further high dose chemotherapy Causation 33. If Reema's medulloblastoma had been diagnosed prior to her discharge from hospital on 31 December 1990 while she was under the care of Dr. Mansour, or during her admission to hospital but before the lumbar puncture on 13 January 1991, whilst she was under the care of Dr. Gett, the medulloblastoma would not have spread to the point it did as demonstrated on the MRI performed on 22 February 1991. 34. Had the medulloblastoma been diagnosed in late December or early January as described above, Reema's treatment would have been different. Particulars (a) Chemotherapy would have been avoided; and (b) Radiotherapy would have been administered following the debulking of the tumour and delivered at a total dose of 36 Gray in 28 fractions without anaesthetic rather than in 50.4 Gray in 28 fractions under general anaesthetic.

[27]

(e) The opinion of Dr. Berry as expressed in a report dated 28 October 2003 provides the basis for a claim that "… their delay in diagnosing and treating Reema's medulloblastoma caused Reema to receive more radiation therapy treatment than she would have but for their delay in diagnosis for the reasons set out in Dr. Berry's report and that this increased amount of radiotherapy increased the risk of the injuries that Reema has in fact suffered" (paragraph 18 of Ms. Walsh's affidavit sworn 1 April 2003). 28 In order to fully understand the nature and significance of the proposed amendment and the new contention based upon it, it is necessary to add to what I have previously stated on the question of "seeding". 29 The issue as to whether the tumour had spread to other regions of the central nervous system (referred to as either dissemination or seeding) in the early stages of the plaintiff's condition as marked by various signs and symptoms is central to the question as to whether or not it can be said that the nature of the radiotherapy treatment that was in due course required arose from or by reason of the alleged delay in diagnosis and the development of the plaintiff's disease. If, as I assume based on the material before me, the defendants' experts will contend, that seeding had already taken place in the early stages, then the argument will be that the more severe form of radiotherapy would have been required in any event. On that basis, it will be contended, any damage consequent upon it could not be causally linked to any act or omission (including delay in diagnosis) by the first or second defendants. 30 On evidence presently available, it appears that there is no definitive evidence establishing whether or not seeding had or had not occurred in the early stages. Dr. Martin P. Berry for the plaintiff, for example, asserts that there was no evidence of seeding in late December 1990 and early January 1991. He relies, in part, on statistical information in the relevant literature which he stated suggests that gross evidence of seeding is not evident at the time of diagnosis and also upon the claimed absence of any signs or symptoms suggestive of the fact that it had taken place up to 13 January 1991. From that date, it was documented that there had been significant neurological deterioration. One factor which may bear upon this issue is the natural history of medulloblastoma which Dr. Klug has claimed has a rapid spread. On this basis, so the argument goes, the fact of its detection in February may not mean that it was present during the period late December 1990 and early January 1991. 31 The defendant's experts will, it seems, rely upon other factors which, it is suggested, point in the opposite direction. It is not necessary for me in this application to examine specific factors or indicia that they may rely upon. What is clear is that central to the new contention is a question of fact, in particular, a question as to medical fact that will, if leave to amend is granted, arise for determination at trial. It is not an issue or matter that was specifically the subject of a question put to the experts who attended the joint conference. 32 The medical fact to which I refer may, therefore, be stated as being whether or not seeding had taken place when it is alleged that the tumour ought to have been diagnosed by CT scan at the end of December 1990 or during early January 1991 and before the lumbar puncture was performed on 13 January 1991.

[28]

The joint expert report 33 At the relevant time the provisions concerning conferences between experts was governed by the provisions of Part 36 Rule 13CA of the Supreme Court Rules 1970 and Practice Note No. 121, joint conferences of expert witnesses. 34 On 8 August 2002, Studdert, J. made orders by consent on a notice of motion filed by the first and second defendants for orders concerning the appointment of a joint conference of experts. 35 The report of 8 November 2002, pursuant to clause 26 of Practice Note No. 121, was in due course sent to Studdert, J. Those present at the conference held on 8 November 2002 were Professor Robert Jones, Dr. Ian Hopkins, Dr. Ian Johnston and Associate Professor John Watson. 36 In all, nine questions were posed. Answers were provided to those questions which were held to be applicable. I set out below questions and answers 1 and 2 contained in the joint report:- "1. Assuming that in Reema Tabet's case:- • there had been no delay in diagnosis of the medulloblastoma between 28 December 1990 and 14 January 1991; and • no lumbar puncture performed on 13 January 1991; and • conventional treatment given by excision of the medulloblastoma, chemotherapy and radiotherapy, would you consider it likely or unlikely that Reema would suffered (sic) any or all of the following disabilities:- (a) spastic ataxia, balance and co-ordination impairment: likely (b) impaired vision: after discussion about the uncertainties of mechanisms, on balance of probabilities we agreed this was likely (c) impaired memory: likely (d) dysarthria: likely (e) impaired intellectual ability: likely (f) contractures: likely (g) epilepsy: likely (h) swallowing problems: likely (i) loss of bladder and bowel control: likely 2. Did any delay in diagnosis and treatment of Reema's medulloblastoma between 28 December 1990 and 14 January 1991 cause or contribute to cause any of the following disabilities:- (a) Spastic ataxia, balance and co-ordination impairment: No (b) Impaired vision: We do not think it is possible to understand fully the mechanisms of the impaired vision. Although it is likely that her optic atrophy is due to local tumour deposits and/or radiotherapy, the period(s) of raised intracranial pressure may have contributed. Radiotherapy per se would not have caused the early visual impairment. (c) Impaired memory: No (d) Dysarthria: No (e) Impaired intellectual ability: No (f) Contractures: No (g) Epilepsy: No (h) Swallowing problems: No (i) Loss of bladder and bowel control: No ." 37 The joint expert report reveals that there was no question and answer specifically directed to the point which the plaintiff now wishes to pursue by way of amendment to the Statement of Claim, the new contention. It may well be that the experts in fact had a view on the question of the spread of seeding of the metastasis. It may even be that that view was considered when providing the answers to the questions posed. However, that matter was not one upon which the experts were specifically requested or required to consider and express an opinion upon. It was one, as earlier discussed, which depended, at least, in part, upon whether there was evidence that seeding had taken place at a time that is consistent with and supported the new contention. A dispute as to that significant factual question is one that is unlikely to render itself as suitable to resolution other than by conventional trial processes. 38 It is apparent from Ms. Walsh's affidavit evidence that the possible significance of the issue of delay in diagnosis in terms of the issue of seeding and the nature of the radiotherapy treatment and the damage said to have been caused by it had not been identified at the time that consent was given to the appointment of a joint conference of experts. At least they had not been identified at that time by the plaintiff's representatives. 39 On this application, I am of the opinion that:-

[32]

• there was no statement of agreed fact or assumption as to the existence or otherwise of the matters concerning seeding as discussed above. 40 There is a real question as to whether the joint expert report can or should itself operate or be allowed to operate as a restricting factor on the discretionary power in the Court to grant an amendment to pleadings. As I proceed to examine below, in medical negligence litigation where there is an important contested medical fact in issue, it will often be the case that the experts' conference process under the Rules will not be appropriate and, generally speaking, will not be ordered. Where there is somewhat belatedly identified an important matter of medical fact which is sought to be introduced by amendment subsequent to a joint expert report, should the report nonetheless have primacy so as to exclude the fact from being litigated? 41 In considering this matter it is instructive to refer to the principles that are applicable on an application for a joint conference and the approach which this Court has taken to that question. The principles have been enunciated in a line of cased decided by Studdert, J. I refer to his Honour's judgments in Boardman v. South Eastern Sydney Area Health Service [2001] NSWSC 930, in Booth v. Francesco [2002] NSWSC 154 and in Spasovic v. Sydney Adventist Hospital [2002] NSWSC 164. A judge considering such an application must be satisfied of the existence of a reasonable expectation that the appointment of the conference sought by a party could achieve one or more of the objectives expressed in paragraph 2 of Practice Note No. 121 (see Booth (supra) at [24] and Habelrih v. Szirt [2004] NSWSC 54 per Studdert, J. at [12]. 42 In determining applications for the appointment of conferences between experts, this Court has applied what has been termed the possible utility test. It was first applied by Studdert, J. in Booth. In that case, Studdert, J. stated that there existed a clear, firm and considered divergence of opinion between the experts as to whether a hysterectomy was an appropriate procedure for the plaintiff. That, his Honour held, was the most central and critical medical issue in the case:- "… moreover, it is to state the obvious that if a conference was ordered, it would not address the critical factual issues between the plaintiff and the defendant as to what advice and warning the plaintiff was given and the plaintiff's response to such." 43 It was accordingly held that the possible utility test had not been satisfied in the circumstances of that case. 44 In Spasovic, Studdert, J. considered an application made by the second defendant and supported by the first defendant, but opposed by the plaintiffs, for an order pursuant to Part 36 Rule 13CA of the Supreme Court Rules for a conference of medical experts in a case involving complex medical issues on causation. Following a detailed examination of the issues and the opinions, noting a marked division of opinion between the experts, his Honour stated (at [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 and 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, present an issue which can only be determined at trial … 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 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. … I am not satisfied that the possible utility test, as I expressed that test in Booth , is met on this application. …" 45 In opposing the application to amend in these proceedings, Mr. S. Donaldson, SC. on behalf of the defendants advanced a number of arguments including the following:-

[46]

The status and effect of the report of the joint conference of experts 53 In general terms, where there has been a report from a joint conference of experts conducted in accordance with the rules of court (now under the Uniform Civil Procedure Rules 2005, in accordance with s.31.25), an application for leave to amend a pleading cannot proceed in complete disregard of that which has taken place in consequence of a joint conference of experts which has been properly conducted. To do otherwise would permit inconsistencies with matters that have been agreed in accordance with a court-sanctioned process and thereby undermine the process itself. It is accordingly incumbent upon an applicant in such circumstances to establish a principled basis upon which an application to amend to raise inconsistent matters may be granted. In this context, it is essential that the matters that have been the subject of agreement between the experts be carefully examined as must the precise subject matter of the amendment proposed. 54 Rule 36.13CA of the Supreme Court Rules (expressed in similar terms to what is now found in s.31.25 of the Uniform Civil Procedure Rules) provides for expert witnesses to confer upon specified matters. As previously discussed, not all matters arising in professional negligence litigation will be suitable for the joint conference process. 55 Rule 36.13CA(5) provides that parties may agree, at any time, to be bound by agreement on any specified matter. It is important in the present case to note that no such agreement in those terms was reached. The question arising in the present application needs to be considered not strictly by reference to Rule 36.13CA(6), but, however, with some regard to its intended function. That Rule provides:- "Where, pursuant to this Rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the court, adduce expert evidence inconsistent with the matter agreed." 56 In determining the status and relevance of the report of the joint conference of experts in this matter, the following are to be noted:-

[49]

(c) The report of the joint conference of experts operates as a restriction on any party (subject to leave), in particular, the plaintiff, on adducing expert evidence that is inconsistent with any matter agreed. 57 Accordingly, whilst the report in this matter records agreed answers to specified questions, it does not constitute either a binding or irrevocable agreement on any specified matter nor does it possess the status of a pleading in which matters have been admitted nor is it a document that definitively frames issues in the proceedings. Its potential function is that it may either "be used or tendered" at the trial as specified in Rule 36.13CA(5). 58 In considering the prospective operation of Rule 36.13CA(6) whereby evidence may not be adduced without the leave of the Court in circumstances in which that sub-rule operates, it is necessary to consider how sub-rule (6) may be applied at trial. The new contention was not, as previously analysed, itself a "matter agreed" within the Rule by reason of the fact it was not a matter that had arisen as an issue between the parties. If allowed by way of amendment, it could be a material matter going to causation. 59 The new contention", itself not having been specifically raised on the existing Statement of Claim and therefore not a "matter" considered by the joint conference of experts, is therefore currently not itself the subject of any agreement, adverse admission or any form of estoppel. 60 If sub-rule (6) of Rule 36.13CA is a potential obstacle to the admission of expert evidence on the new contention, this could only be by reason of the experts' agreed answers to questions 1 and 2 which deal with what may be referred to as the broad issue of causation but not with the subject matter of the new contention itself. 61 The fact that the experts have agreed on answers which go to what I have termed the broad causation issue, but not to the new contention itself, would not in the circumstances referred to in [59] provide a sufficient basis to disallow the amendment sought. 62 It is clear, I believe, that, had the new contention issue been raised at the outset, and if the Court had been required to consider whether the joint conference of experts process under the rules was appropriate for this case, having regard to the principles to which I have earlier referred, it must be very doubtful as to whether it would have considered that process to be appropriate. This is on the basis that the issue involves a causation question which itself is based on a disputed fact relevant to the matter of seeding. 63 How a judge may, at trial, in the circumstances referred to in [58] and [59], rule on an application for leave to adduce expert evidence on the new contention which may be said to be inconsistent with the agreed answers to questions 1 and 2 need not be addressed in this application. The application I am required to decide, of course, concerns a pre-trial question which is limited to the question of amendment of pleadings. It is sufficient to state that it would be open to the trial judge to have regard to the circumstances referred to in [58] and [59] in deciding the grant of leave under Part 36 Rule 13CA(6). 64 Absent any particular relevant issue going to prejudice or any legal bar to an amendment, ordinarily a court on an application for leave to amend would be inclined to accede to the application in order that the plaintiff is not prevented from raising and pursuing any relevant issue in support of his or her claim, particularly in circumstances where, there is shown to exist specialist expert evidence supportive of the contentions or allegations which the plaintiff wishes to pursue by the amendment: J.L. Holdings (supra); Tringali Stewardson Stubbs & Collett Limited (1966) 66 SR (NSW) 335 at 346 and John Fairfax & Sons Limited v. Foord (1988) 12 NSWLR 706, 712. 65 I am of the opinion that, particularly having regard to the circumstances referred to in [57] to [60] and the principles enunciated in the cases in [64] and there being, in my opinion, no sound and compelling reason to prevent the plaintiff from amending, it is appropriate that leave be granted to enable the plaintiff to pursue the case (the new contention) which her legal representatives consider to be appropriate in her interests.