Beerens v Biggs

[2019] NSWSC 1707

Supreme Court

New South Wales

Medium Neutral Citation:	Beerens v Biggs [2019] NSWSC 1707
Hearing dates:	26 November 2019
Date of orders:	26 November 2019
Decision date:	26 November 2019
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	Motion granted Plaintiff pay defendant’s costs
Catchwords:	CIVIL PROCEDURE – personal injury litigation –declaration sought by defendant that it is permitted to interview plaintiff’s former treating doctors – resisted by plaintiff on basis of doctor-patient confidentiality – where no relationship of confidentiality between the doctor and the plaintiff existed at the relevant time –defendant entitled to interview doctors – where such interviews vital to efficient conduct of proceedings – declaration made  TORTS - Negligence PROFESSIONS AND TRADES – health care professionals – medical practitioners – privilege
Cases Cited:	Coffey v Murrumbidgee Local Health District [2018] NSWSC 1538 Richards v Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328
Category:	Principal judgment
Parties:	Steven Bereens (plaintiff) Michael Biggs (defendant)
Representation:	Counsel: G Gemell (plaintiff) M Windsor SC (defendant)   Solicitors: Schreuders Compensation Lawyers Avant Law Pty Ltd (defendant)
File Number(s):	2017/381793
Publication restriction:	No

Judgment

1. On 26 November 2019 the defendant moved the Court on a notice of motion filed 25 June 2019, claiming a declaration that he is not prevented from interviewing, through his legal representatives, three former treating doctors of the plaintiff. At the conclusion of the hearing on 26 November a declaration was made as sought and the plaintiff was ordered to pay the defendant’s costs. These are the reasons for that decision.

2. On 20 January 2014 the plaintiff was involved in a motorcycle accident and sustained serious injuries including an avulsion (that is, tearing) injury to his right brachial plexus. He was left with a right flail arm, meaning that the muscles by which the limb might be activated and controlled were no longer innervated and it was incapable of purposeful movement.

3. The defendant is a neurosurgeon. The plaintiff consulted him from 6 March 2014. On 4 June 2014 the defendant together with Drs Richard Lawson and David Stewart performed a brachial plexus reconstruction. This involved utilisation of one of the phrenic nerves. The right and left phrenic nerves originate at the C3 level of the spinal column and pass downward between the lungs and the heart to the diaphragm. They transmit motor information to the diaphragm and receive sensory information from it. The reconstruction involved a division of the right phrenic nerve and a graft from it onto the severed nerves supplying muscles of the right arm and shoulder.

4. The plaintiff has brought this action for damages in negligence, alleging that as a result of the operation he has developed diaphragmatic palsy. The paralysis of the diaphragm impairs his breathing. The plaintiff alleges that the defendant was negligent with respect to the reconstructive surgery in respects discussed below. The defendant wishes to have his legal representatives interview Dr Lawson, who assisted in the operation, and also Prof Michael Tonkin and Dr Ralph Mobbs. The plaintiff consulted Drs Tonkin and Mobbs with respect to the proposed procedure during the two months before it was undertaken. The plaintiff asserts that all communications between himself and Drs Lawson, Tonkin and Mobbs were confidential. He objects to the defendant’s lawyers interviewing them.

Particulars of negligence in the statement of claim

5. At par 23 of the statement of claim there are 12 sub paragraphs of particulars of negligence. Items (a)-(c) are uninformative generalities rather than particulars. Particulars (g) and (h) appear to be directed to a case that the defendant exercised less than reasonable care in undertaking, at all, the procedure using the phrenic nerve. They are as follows:

(g) Harvested the right phrenic nerve when it was unsafe to do so.

(h) Failed to choose a donor nerve other than the phrenic nerve, such as the intercostal nerves.

6. Particulars (d)-(f) allege that the defendant failed to investigate or take into account the plaintiff’s long-term medical history and his level of recovery from the recent motorcycle accident before embarking on the procedure. These failures, assuming they occurred, could not of themselves have been causative of damage. They are not freestanding particulars of negligence. Rather, they are subsidiary to the plaintiff’s assertions that the defendant should not have undertaken the procedure at all (particulars (g)-(h)) and/or his case that he should have given the plaintiff a suitable warning of risk (particulars (k)-(l)).

7. Particulars (d)-(f) are as follows:

(d) Failed to obtain an adequate history of the plaintiff’s respiratory condition prior to harvesting the phrenic nerve.

(e) Failed to investigate respiratory function prior to harvesting the phrenic nerve.

(f) Failed to acknowledge indications of respiratory compromise in the plaintiff’s medical history, such as:

(i) 2.5 packs per day smoker status from 1986 to 2009 (57.5 pack years);

(ii) Pulmonary contusion requiring bilateral chest drain insertion;

(iii) Pneumothoraces;

(iv) Obstructive sleep apnoea requiring Continuous Positive Airway Pressure (diagnosed November 2011).

8. Particular (i) alleges breach of duty by proceeding with the operation prematurely, relative to the plaintiff’s recovery from his other injuries, as follows:

(i) Failed to ensure adequate recovery of the plaintiff’s fractured ribs before performing the brachial reconstruction.

9. Particular (j) is that the defendant “failed to ensure that the phrenic nerve would not lead to significant respiratory complications”. The defendant’s common law duty of care of course does not extend to an obligation to “ensure” the outcome of an operation. This particular can be safely disregarded.

10. The final two particulars, (k) and (l), constitute a case of failure to warn. I assume that the word “acknowledge” in particular (k) is intended to mean “acknowledge or communicate to the plaintiff”. These particulars are as follows:

(k) Failed to acknowledge the risk of significant diaphragmatic palsy given the plaintiff’s medical history.

(l) Failed to warn the plaintiff of the risk of significant dyspnoea.

11. In summary, the heads of alleged negligence are (1) undertaking brachial plexus reconstruction using the phrenic nerve, at all, having regard to the plaintiff’s history of compromised respiratory function, which the defendant should have ascertained; (2) undertaking the reconstruction prematurely relative to the plaintiff’s recovery from his chest injuries and (3) failing to warn the plaintiff of the risk of diaphragmatic palsy and significant dyspnoea, especially with reference to the increased risk from the plaintiff’s medical history.

Referrals of the plaintiff to medical specialists

12. Correspondence prior to the date of the operation shows that at some time before 6 March 2014 Dr Andrew Kam of Westmead Private Hospital referred the plaintiff to the defendant. The defendant saw the plaintiff on 6 March 2014 and reported to Dr Kam by letter of 10 March 2014, in the following terms:

We then discussed the role of trying to reconstruct the nose of the brachial plexus and I went into details about what nerves we could use [as] a donor nerve and what nerves we could use [as] a graft. […] I mentioned also the role of free muscle transfers. I have made arrangements for [the plaintiff and his wife] to see Prof Michael Tonkin to discuss the option of free muscle transfers further and also to talk about nerve reconstruction from his point of view.

I then went through operative risks including anaesthetic complications, wound infection, haemorrhage, occlusion to arteries or veins if a vascularised flap is used and the fact that even with all this there may be no result in terms of improvement in the right arm.

I look forward to hearing from Prof Tonkin after he has seen [the plaintiff] and then we can go from there.

13. On 25 March 2014 Dr Brian Tan, a general practitioner of Eastbrooke Medical Centre, Blacktown, wrote a letter referring the plaintiff to Prof Michael Tonkin. The letter included the following:

Thank you for seeing [the plaintiff] for an opinion and management. He had motorbike accidents with multiple bones fractured and [right forearm and wrist]. He was admitted to Canberra Hospital and transferred to [Westmead Hospital]. He requested to see you for further management.

14. I infer that the plaintiff’s request to his GP for referral to Prof Tonkin followed upon the defendant having made arrangements for this in advance, as mentioned in the defendant’s letter to Dr Kam of 10 March 2014. On 27 March 2014 the plaintiff saw Prof Tonkin, a specialist in hand surgery. He has since retired from practice, in 2016. On 31 March 2014 Prof Tonkin wrote to the defendant, with copies to the plaintiff and to Dr Tan, to report on the consultation of 27 March. Prof Tonkin wrote:

I have arranged for an expiration/inspiration chest x-ray today and some further rib views. These will give us an indication as to what nerves may be available but, minimally, we may have intercostal two and three, accessory and phrenic nerves as well as some C5 outflow, perhaps even at upper trunk level. […]

Therefore in summary, I would advise expiration and, if the upper trunk could be reconstructed distal to the suprascapular nerve origin, then I would proceed as above. If not, then I would proceed to free muscle transfers, probably the first one at the time of the exploration. This would require coordination with Dr Richard Lawson and Dr David Stewart.

15. Dr Samaranayake was another GP at the Eastbrooke Medical Centre. In April 2014 he referred the plaintiff to Dr Ralph Mobbs, a neurosurgeon and spine surgeon at the Prince of Wales Hospital, Randwick. Dr Mobbs reported to Dr Samaranayake on 24 April 2014 after reviewing the plaintiff that day. He noted a complete absence of motor function throughout the right arm and shoulder. Dr Mobbs commented on an MRI scan that revealed nerve damage. He said:

[The plaintiff] has sought a number of opinions with regards to having a brachial plexus reconstruction. I have recommended that he have a comprehensive reconstruction. I have further recommended that he proceed with a reconstruction under the care of [the defendant] and Prof Tonkin who perform a dual team for complex plexus reconstruction at Royal North Shore Hospital. [The plaintiff] will pursue surgical management there.

16. Dr Samaranayake also referred the plaintiff to Dr Lawson who, together with Prof Tonkin, Dr David Stewart and others, was a member of a practice group under the name Sydney Hand Surgery Associates. The referral of the plaintiff to Dr Lawson was “for an opinion regarding his plexus injury”. Dr Lawson saw him on 6 May 2014 and reported to Dr Samaranayake that day, in a letter that included the following:

EMG studies […] show preservation of function in the rhomboids and suprascapular nerve territory but nothing more distally. […]

I had a long talk today with [the plaintiff] regarding expectations and possible outcomes. I have indicated that we can’t provide him with sophisticated hand function. His shoulder should continue to improve and end up being quite good as the suprascapular nerve is very important in controlling the shoulder. Our aim would be to provide him with elbow flexion and potentially some elbow extension and finger flexion. At his age [45 years], the best way of doing this would be with free muscle transfers.

I have arranged with [the defendant] to admit him on the 3rd of June with surgery on the 4th of June, principally under [the defendant’s] care, and we will explore the plexus and then decide on a plan of action.

17. Dr Lawson sent a copy of this letter to each of Prof Tonkin, Dr Stewart, Dr Mobbs, the defendant and the plaintiff.

Confidentiality of communications with treating doctors

18. It may be accepted that the plaintiff’s communications to and from each of Drs Lawson, Tonkin and Mobbs were confidential as against third parties in general. It is common ground between the plaintiff and the defendant that an obligation of confidence is implied in the doctor-patient relationship. In 2014 this obligation was recognised in codes of practice of medical practitioners that were then in circulation, such as those published by the Medical Board of Australia and the Royal Australian College of Surgeons. Each of the three doctors was a fellow of the College. However, the defendant submits that this obligation of confidence did not operate as against the defendant. He says that, on the contrary, he was “within the circle of confidence”.

19. The defendant’s submission is correct. He and the three doctors with whom this application is concerned were all engaged by the plaintiff at about the same time, in relation to the same medical issue, pursuant to the recommendations of one another and leading ultimately to the plaintiff’s engagement of the defendant and Drs Lawson and Stewart to perform the operation jointly. The plaintiff received copies of the reports of Drs Lawson and Tonkin which clearly showed on their face that these had also been sent to the defendant. The plaintiff received a copy of Dr Mobbs’ report that was addressed to his GP, Dr Samaranayake, who would have been under a professional duty to pass on this report to the defendant as one of the additional opinions that the plaintiff had procured.

20. Far from there being an obligation owed by Drs Lawson, Tonkin and Mobbs to maintain confidence as against the defendant, each of those doctors and the GP owed the plaintiff a duty of care to disseminate to the defendant, as the intended lead surgeon, and to each other all communications on the relevant matter that had taken place between themselves and the plaintiff.

21. The plaintiff submits that while no obligation of confidence may have operated as against the defendant prior to completion of the surgery, so that free communication between all of the doctors could take place at that time, after the procedure had been carried out and in particular since the commencement of this litigation an obligation of confidence as against the defendant has come into force, including with respect to communications that took place up to and including 4 June 2014. I reject that submission. All of these doctors were, at the relevant time, obliged to share with each other and with the defendant communications and information relevant to the plaintiff’s healthcare. No authority was cited by the plaintiff in support of the proposition that, retrospectively, the three doctors have come under an obligation of confidence with respect to communications dating from a time when no such obligation applied. Although the circumstances are not precisely the same as those in Coffey v Murrumbidgee Local Health District [2018] NSWSC 1538, Garling J’s decision in that case is inconsistent with the argument presently advanced by the plaintiff.

Merits and costs

22. The defendant’s application for a declaration that his legal representatives may interview the three doctors is directed to the limited purpose of discussing with them their pre-operative consultations with the plaintiff and other doctors and their involvement in the surgery on 4 June 2014. Although the outcome of the application does not depend upon this, it may be observed that interviewing the three doctors is an obviously prudent course having regard to the particulars of negligence alleged against the defendant. One or more of those other doctors may be able to shed light upon pre-operative enquiries undertaken and/or warnings of risk issued. It would be usual for the Court in due course to order that evidentiary statements be exchanged before the trial of the action commences. Interviewing these potential witnesses is therefore an obviously sensible aspect of forensic investigation and preparation for the defendant.

23. The plaintiff’s counsel could advance no ground of merit or utility to justify his insistence upon enforcing the alleged obligation of confidence. Before I had absorbed the detail of the letters of referral and the reports of the various specialists, upon the assumption that there existed an obligation of the three doctors to maintain confidence as against the defendant I pointed out to counsel that it was in the plaintiff’s hands to waive any confidence and asked “Why would he not?”. The only answer proffered by the plaintiff’s counsel was, “He does not wish to”. I regard that as unreasonable. I cannot see that anything was to be gained by the plaintiff obstructing the defendant from interviewing these potential witnesses. Whatever the reach of their obligation of confidence it could not prevail over their duty to answer questions if the defendant should subpoena them to give evidence at the trial: Richards v Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328 at [85]. The maximum potential of the plaintiff’s stance was that he might thereby disrupt and inconvenience the defendant and the Court if, when called, any of the three doctors should give evidence for which the defendant might be insufficiently prepared.

24. The plaintiff opposed an order that he pay the costs of the notice of motion on the basis that until it is known whether evidence will be adduced from any of the three doctors it will not be known whether the Court’s declaration that the defendant is free to interview them has been useful. He submitted that the costs of the motion should be cost in the cause. I reject that submission also. The declaration obtained by the defendant will have utility in enabling him to determine in advance of the trial whether any of these three potential witnesses should be called. Such pre-trial investigation of potential evidence is the norm of current civil procedure. Not only will it be useful to save Court time and legal expenses. Interviewing the three doctors in advance of the hearing is the most efficient way of ensuring that their valuable time will not be wasted in being subpoenaed to no purpose.

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Decision last updated: 02 December 2019