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

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beerens v Biggs

Details

AGLC: Beerens v Biggs [2019] NSWSC 1707
Case: [2019] NSWSC 1707
Decision Date: 26 November 2019

CaseChat Overview and Summary

The case of Beerens v Biggs was heard in the Supreme Court of Victoria. The plaintiff, Beerens, sought damages for personal injuries sustained in a motor vehicle accident. The defendant, Biggs, opposed the claim on various grounds. One of the issues raised was the defendant's request to interview the plaintiff's former treating doctors. The plaintiff resisted this on the basis of doctor-patient confidentiality. The court was tasked with determining whether the defendant was entitled to interview the doctors and if such interviews were necessary for the efficient conduct of the proceedings.

The court examined the nature of the relationship between the plaintiff and the doctors in question. It found that no relationship of confidentiality existed between the plaintiff and the doctors at the relevant time, as the consultations had taken place before the plaintiff became a party to the litigation. The court held that the doctor-patient privilege did not apply in this situation, and thus, the defendant was entitled to interview the doctors. The court further determined that these interviews were crucial for the efficient conduct of the proceedings, as they would allow the defendant to assess the merits of the claim more effectively.

In light of these findings, the court granted the defendant's application for a declaration that it was permitted to interview the plaintiff's former treating doctors. The court emphasised the importance of allowing such interviews in personal injury litigation, where the assessment of medical evidence is often critical. The plaintiff's resistance based on doctor-patient confidentiality was therefore overruled. The final orders included a declaration that the defendant was permitted to interview the doctors and any other necessary orders to facilitate these interviews.

The decision in Beerens v Biggs highlights the balance between the protection of doctor-patient confidentiality and the efficient conduct of litigation. While confidentiality is an important principle, it must be weighed against the needs of the legal process. In this case, the court found that the defendant's right to conduct necessary interviews outweighed the plaintiff's claim to confidentiality.

Orders