Zreika v The Sydney Children's Hospital Network

Assessment and consideration

Having read the evidence, and in light of what I have set out above, it is clear that there are a number of significant causation and damages issues. I will make mention of one by way of illustration.
The medical evidence establishes that timely treatment of Kawasaki disease, specifically, by intravenous immunoglobulin administered within the first ten days of onset, reduces the risk of coronary artery damage - potentially quite significantly: report from Associate Professor Cameron Ward, the Hospital's qualified paediatric cardiologist dated 27 February 2022, page 1. Associate Professor Ward expressed the opinion that, remembering that the plaintiff did not attend the Hospital until 7 May 2014: "the vast majority of irreparable coronary artery damage was done well before May 7 and [intravenous immunoglobulin] administered beyond May 7 was unlikely to significantly mitigate that damage': report dated 27 February 2022, page 2. Later, in that same report, Associate Professor Ward said that, by 8 May 2014, "there was little or no likelihood [the plaintiff] would have avoided suffering significant injury to her coronary arteries".
The plaintiff's expert evidence was somewhat more measured, but recognised that the plaintiff presented to the Hospital on day 14 of her illness (7 May 2014). That is, beyond the treatment window which I have earlier referred to.
The plaintiff qualified a consultant paediatric cardiologist, Professor James Wilkinson, who prepared a number of reports. In his report dated 17 February 2020, Professor Wilkinson made the following key points. First, that it was "widely accepted that treatment needs to be initiated wherever possible by 7 - 9 days after the onset of symptoms and delay after that increases the risk of coronary artery damage" (report, page 11). This opinion is in line with the one expressed by Associate Professor Ward that I have referred to. Secondly, when specifically addressing the question of the likely outcome had the plaintiff being treated by intravenous immunoglobulin when she first attended the Hospital (that is, on day 14), Professor Wilkinson said that it was "reasonable to conclude that her coronary artery problems would probably not have been avoided completely but might have been reduced" (report, page 15).
The plaintiff also secured a further report from a consultant paediatrician and cardiologist, with particular expertise in Kawasaki disease, Professor Samuel Menahem. In a report dated 17 February 2021, Professor Menahem specifically agreed with this last opinion expressed by Professor Wilkinson. Proving the "reduction" as Professors Wilkinson and Menahem described, would be far from straightforward, as the expert evidence has recognised. That is, the causation/damages issue is whether - and if so to what degree - the administration of intravenous immunoglobulin after 7 May, but before 20 May 2014, would have resulted in a better outcome for the plaintiff.
It seems to me, based upon my assessment of the material, including the expert evidence, that there were a number of scenarios open on the evidence - including, the plaintiff could have succeeded entirely in her claim - but that success would only entitle her to recover damages for the damage occasioned by the failure to treat the Kawasaki disease by intravenous immunoglobulin at an earlier point in time; or, possibly, the defendant could have succeeded on causation, essentially by establishing that any breach of duty did not cause or contribute to the plaintiff's coronary problems. Obviously, there are other variants. These are just some of them.
My assessment of the case on causation - admittedly without the benefit of hearing from the witnesses and following that from counsel - is that it is not without difficulties, and the proposed settlement reflects this.
I am in receipt of a confidential advice from counsel. I consider the assessments contained within the advice dated 9 October 2022 to be fair and reasonable, and I agree with the tenor of the advice about the risks and that the case called for compromise. I add: I was helpfully provided with submissions from the defendant that identified similar issues to which reference has been made, and to which counsel had appropriately addressed in the confidential opinions.
In my view, the case had a range of risks, inclusive of failing entirely and, even if it did not, there were prospects of securing significantly less damages than the primary claim.
Ultimately, this is a case that justified compromise, bearing in mind the risks on causation that I have identified. Of course, the plaintiff is required to prove causation and bears the onus of proving any fact relevant to the issue of it: ss 5D and 5E of the Civil Liability Act 2002 (NSW).
It is of course, not without difficulty to reliably predict what judgment sum the plaintiff might have secured in these circumstances. Nevertheless, based upon the material, and the confidential advice to which reference has been made, I am comfortably satisfied that the settlement is in the best interests of the plaintiff, and for her benefit, and so should be approved.
The settlement sum is for an amount of $XX inclusive of all paybacks and fund management costs, plus agreed costs. The payback only appears to be to Medicare and said by counsel for the plaintiff to be $XX. This amount is to be dealt with by an advance payment of 10%.
Ms Walkowiak has also disclosed that they propose to seek, from the Trustee, payment of $XX in solicitor and client costs. There is no evidence at all before me about what this figure represents (and why it is to be charged), and my approval of this settlement should not be taken in any way to have endorsed either the charging of solicitor and client costs, nor the amount of them. In due course, should there be solicitor and client costs that is a matter that will need to be addressed and determined by the Trustee.
Exhibit C identifies the fees that will be incurred if the judgment is managed by the Public Trustee. My understanding is that, based upon what is contained in that exhibit, application will be made for the public trustee to hold the money on trust for the first plaintiff.
I make the following orders: 1. The settlement recorded in par 2 of the consent judgment filed in Court, 13 October 2022, and signed by the parties is approved pursuant to the Civil Procedure Act 2005 (NSW), s 76, and there will be judgment in accordance with that paragraph. 2. The judgment sum less statutory deductions authorised by the consent judgment is, subject to any further order, to be paid into Court pending the application for the appointment of a trustee to hold on trust the judgment sum. 3. The Court makes orders in accordance with pars 5 and 6 of the consent judgment and notes the agreement between the parties set out in pars 3, 4, 7, 8 and 9 of the consent judgment.
In addition to the plaintiff's claim there were two claims brought by parents of the plaintiff for nervous shock: they were the second and third plaintiffs. Those matters have also resolved and the consent orders prepared by the parties contain proposed orders disposing of those claims.
I make the following orders: 1. Judgment for the second plaintiff in the sum of $XX inclusive of costs. 2. The Court makes orders in accordance with par 14 of the consent judgment and notes the agreement between the parties set out in pars 12, 13, 15, 16 and 17 of the consent judgment. 3. Judgment for the third plaintiff in the sum of $XX inclusive of costs. 4. The Court makes orders in accordance with par 21 of the consent judgment and notes the agreement between the parties set out in pars 19, 20, 22, 23 and 24 of the consent judgment.
I will sign, date and have sealed the consent orders, and they will be placed on the Court files. I grant liberty to the parties to apply in respect of the above orders.

At a glance

Court

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Before

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Judgment (7 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)