Verhoeven v Halliday

Judgment

1. HIS HONOUR: The defendant is an anaesthetist. Marc Verhoeven died on 18 August 2011 in the course of what should allegedly have been a routine procedure for the arthroscopic repair of a rotator cuff tear of his right shoulder. Prior to the surgery, Mr Verhoeven had been prescribed an angiotensin-converting-enzyme inhibitor. The plaintiff alleges in separate proceedings that this medication significantly increased the risk of a hypotensive episode during anaesthesia whilst he was seated intraoperatively in the "beach chair" position. The plaintiff contends that the materialisation of this risk caused Mr Verhoeven's death and that the defendant breached her duty of care in failing to recognise this risk or otherwise to take steps to reduce or eliminate it.
2. The damages proceedings were commenced by statement of claim filed on 24 April 2014. An amended statement of claim was later filed on 7 October 2014. The form of both the original and the amended pleading in those proceedings is most unfortunate and bespeaks a significant misunderstanding of what a proper pleading should contain. It should not, by way of example, contain a minute-by-minute journey through medical or surgical records referring to almost everything that might have happened to a patient whilst in an operation or under an anaesthetic. This type of approach regrettably seems to have gained favour with some members of the legal profession practising in the field of medical negligence but for reasons that entirely escape me. It is an approach or style that is not to be encouraged and I would actively discourage it.
3. By his summons commencing the present proceedings filed on 22 November 2016, the plaintiff has sought an order that the original or principal proceedings be removed to the District Court of New South Wales pursuant to s 146 of the Civil Procedure Act 2005. That application is supported by an affidavit affirmed by Iain Miller on 12 December 2016. The burden of Mr Miller's deposition is that claims for nervous shock made on behalf of the deceased's mother and his children have been settled, so that quantification of the remaining Compensation to Relatives Act aspect of the claim is all that remains. Mr Miller considers that the complexity of the matter has correspondingly subsided and that the plaintiff may be at risk of a costs penalty if the matter remains in this Court. He put the perceived issues in the following terms: "21. At present it appears that this matter is likely to proceed to hearing. In order to prepare the matter we will require evidentiary statements from at least 4 lay witnesses who reside in New Zealand. There will also need to be subpoena [sic] issued upon an accounting firm in New Zealand, as well as potential attendance to New Zealand in order to obtain the abovementioned statements, and review the financial records held by a liquidator and the aforementioned accounting firm. 22. As the Court will appreciate, this is likely to attract significant legal costs, and perhaps disproportionate to the value of the claim. 23. The plaintiff is concerned that in the light of these developments there may be a significant costs issue should the matter remain in the Supreme Court, in particular in relation to the costs provisions set out in Rule 42.34 of the Uniform Civil Procedure Rules. 24. As the Court will appreciate, given the admissions from the defendant, there is no issue of particular complexity or public interest that would warrant the matter remaining in the Supreme Court."