Choi v Dr Ong

[2021] NSWSC 178

Supreme Court

New South Wales

Medium Neutral Citation:

Choi v Dr Ong [2021] NSWSC 178

Hearing dates:

24 February 2021

Date of orders:

4 March 2021

Decision date:

04 March 2021

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1)      I note that this matter has settled subject to approval, in accordance with the terms of a consent judgment dated 2 March 2021 and signed by the legal representatives of the parties.

(2) I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005.

(3)      I make orders in accordance with paragraphs 1 to 7 inclusive of that consent judgment which for identification will initial, date with today’s date and place with the papers.

(4) I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 1 of the consent judgment, less any authorised deductions for which the consent judgment specifically or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application make pursuant to s 77(3) of the Act otherwise direct.

Catchwords:

CIVIL LIABILITY – medical negligence – where infant plaintiff allegedly contracted tuberculosis meningitis in Vietnam while travelling with her parents – where defendant consulted by her parents before the trip about what vaccinations she should receive – whether defendant should have given or arranged for the plaintiff to receive the Bacille Calmette-Guérin vaccination – where infant plaintiff’s parents relied on defendant’s medical advice – whether defendant breached duty in failing to vaccinate plaintiff in the circumstances – whether defendant acted in manner accepted by peer professional opinion as competent professional practice – whether plaintiff continues to suffer medical and physical issues – whether proposed settlement in best interests of infant plaintiff

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Category:

Procedural rulings

Parties:

Lillian Soo Jin Choi (by her tutor Woo Jin Choi) (Plaintiff)
Dr Bar Ong (Defendant)

Representation:

Counsel:
R de Meyrick (Plaintiff)

Solicitors:
Beston Macken McManis (Plaintiff)
Avant Law Pty Ltd (Defendant)

File Number(s):

2015/53618

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Lillian Choi was born in September 2011. She is accordingly 9 years of age. She is currently in Year 4 at Hurstville South Public School.

2. When Lillian was only 5 months old, her parents planned a trip to Vietnam to visit their family. In contemplation of doing so, they sought medical advice from their general practitioner, Dr Bar Ong. In particular, Lillian’s parents were concerned to know whether or not Lillian required vaccinations before leaving and generally regarding any health issues associated with travelling to Vietnam with an infant. Lillian’s parents were concerned, among other things, to receive advice about whether a Bacille Calmette-Guérin vaccination would be required. It is alleged in these proceedings that Dr Ong advised Lillian’s parents that the BCG vaccination was not necessary.

3. Lillian and her parents travelled to Vietnam on 17 April 2012 and returned on 27 July 2012. The family travelled to Vietnam a second time in February 2013, but only stayed for a few weeks. In taking both trips, Lillian’s parents relied on Dr Ong’s advice that Lillian did not need the BCG vaccination before travelling. However, in the events that occurred, Lillian became severely ill and was admitted to hospital in Vietnam during their second visit. It is alleged in these proceedings that she contracted tuberculosis meningitis, presumably on the first trip, and that this would have been prevented if she had been vaccinated beforehand.

4. Lillian alleges that Dr Ong breached his duty of care in that he failed to provide any or any adequate advice or guidance concerning the risks of contracting tuberculosis in Vietnam and the benefits of, or the need for, appropriate vaccinations before travelling there.

5. Liability has not been admitted although Dr Ong has not served a report dealing with this issue. By his defence filed on 28 August 2015, Dr Ong maintains that his treatment of Lillian was competent and accorded with widely accepted practice in Australia, supported by professional peer opinion, in accordance with s 5O of the Civil Liability Act 2002. In the absence of any report from Dr Ong adverting to this issue, I am unable accurately to evaluate the strength of this part of his response to the statement of claim.

6. Lillian’s case on liability would appear to rely solely upon a report from Professor Dominic Fitzgerald dated 28 August 2014. His opinion given in response to some pertinent questions is as follows:

“1. Did Dr Bar Ong act in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice in the treatment he provided to Miss Choi in April 2012?

The best advice is available in the Australian Immunisation Handbook provided free of charge to all general practitioners and sent by post to their practice address. The 10th edition was published in 2013. The handbook has been readily available on-line for some years and is updated on-line as required. It is published by the Australian Government, Department of Health and Aging, and has peer reviewed content written by Australian experts in paediatric and adult infectious diseases. The most recent guidelines were approved by the National Health and Medical Research Council and they meet the standard for clinical practice guidelines. There were no changes in the relevant recommendations for BCG vaccination in the 10th edition beyond the previous edition, which would have been current at the time in question [April 2012].

The recommendations [page 412 Australian Immunisation Handbook, 10th edition] state that:

The need for BCG vaccination should be assessed in young children, particularly those ages < 5 years, who will be travelling to a country with high TB incidence for an extended period. This is best discussed with local/state/territory TB services or with a paediatric infectious diseases specialist. BCG vaccination should ideally occur 3 months before departure and therefore consideration should be given to future travel plans at birth.

Consequently, it would have been reasonable, if asked, to discuss the risks of acquiring TB on returning to a ‘high risk’ country such as Vietnam with the parents. If Dr Ong were not certain himself, then local resources [Parramatta Chest Clinic] or a paediatric infectious diseases specialist at The Children’s Hospital at Westmead or Sydney Children’s hospital could have been contacted by telephone easily for advice. In addition, the handbook lists a phone number [1300 066 055] on the inside cover to contact the public health unit for the state, where advice could be sought.

The risks of acquiring TB in this setting are difficult to quantify. The risk of TB infection is greater than TB disease, and the risks of pulmonary TB are higher than the uncommon, but more serious condition of TB meningitis.

As a paediatrician, it would seem reasonable to have offered the vaccination to the family of a seven month old baby in the context of a prolonged [e.g. 3 month trip to Vietnam]. However, the advice would have been to wait for 3 months before travelling to allow the vaccine to be effective. Notwithstanding this, the practicalities of providing the vaccine are limited to chest clinics and there are often delays in getting in to see staff at these clinics. For example, one cannot get the BCG vaccine at The Children’s Hospital at Westmead.

For a general practitioner such as Dr Ong, if he were unsure, the best course of action would have been to seek advice from experts/clinicians more experienced in this area.

2. Applying the same test above, did Dr Ong comply with the requisite standards in not providing Miss Choi with additional vaccinations or immunisations assuming he was made aware that Miss Choi was shortly to go to Vietnam with her parents?

The requisite standards would have been to discuss the risks and benefits of the vaccine in this setting with the family if asked. The advice about provision of the vaccine is less clear cut, as the immunisation handbook falls short of providing a blanket recommendation, preferring to invite discussion with an expert in the area if the clinician is uncertain.

3. Had vaccinations or immunisations occurred, what is the likelihood of her having contracted the subsequent medical condition, particularly tuberculosis?

It is difficult to quantitate [sic] the risk of developing pulmonary TB or TB meningitis in this situation. The risk of pulmonary TB is low and the risk of TB meningitis is much lower. The risk of developing tuberculous infection was not negligible for an infant having an extended stay in an endemic country such as Vietnam. Of children infected with mycobacterium tuberculosis in infancy [<12 months of age], it is estimated that 50% will not develop disease, 30%-40% will develop pulmonary tuberculous disease and a smaller percentage [10%-20%] will develop disseminated disease or tuberculous meningitis [Mandalakas and Starke, 2012].

Vaccination with BCG reduces the risk of both pulmonary TB and more particularly disseminated tuberculous infection such as military TB and TB meningitis [by more than 70% as noted in the 2013 Australian Immunisation handbook]. The use of a BCG vaccine in infancy has been shown in the meta-analysis of Colditz et al. [1995] to reduce the risk of acquiring tuberculosis by between 50% and 83%. The protection lasts for up to 10 years [Abubakar et al. 2013].

4. What warnings or advice ought to have been given to Miss Choi’s parents in respect to the question of vaccinations or immunisations?

The risks versus the benefits should be considered. The protective benefits of the vaccination have been outlined above. The predictable appearance of the injection site over days should be described to the parents. This includes the fact that a red papule will form and eventually ulcerate within 2-3 weeks of the vaccination. The ulcer heals with minimal scarring over several weeks. There may be swelling and tenderness in local lymph nodes. The side effects of the vaccine need to be explained also. About 5% of BCG vaccinated people develop adverse events. Injection site abscesses occur in approximately 2.5%, and lymphadenitis in a further 1%. An additional 1% of people may present for review after vaccination. Occasionally a severe anaphylactic reaction has been reported [Australian Immunisation Handbook 10th Edition, 2013].”

7. It will presumably be Lillian’s case if the matter proceeds that her parents would, if appropriately advised of the risks associated with travel to a country where tuberculosis was endemic, have instructed Dr Ong to administer the vaccine and that Lillian would not have contracted tuberculosis in the circumstances. Despite the fact that Dr Fitzgerald has indicated that a recommendation for administration of the vaccine was not routine, I am assuming in the absence so far of evidentiary statements from Lillian’s parents that they would have requested the vaccine if properly advised.

8. I am asked in these circumstances to approve a settlement of the proceedings upon the basis of a judgment for Lillian for $210,000 plus costs. There are no solicitor and client costs. I am told that there may be some $15,000 in future treatment expenses but they have not been specified or described.

9. As the result of her infection, Lillian continues to suffer from the medical and physical issues described in her father’s affidavit sworn on 21 October 2020 as follows:

“3. With regards to Lillian’s injury, they have stabilised and will not worsen. From this point onwards she will continue to develop and grow like other children.

4. The physical injuries sustained as a result of this case is significantly weakened vision in her left eye, a scar to her right collarbone due to a biopsy, some scarring in her lungs and small clumps of dead brain cells near the brain stem and in the upper left temporal lobe.

5. Other than her vision which can be readily measured, I believe Lillian has a slight cognitive impairment, manifesting from her physical injuries. Lillian is unable to narrate events in an orderly manner or express her opinions clearly. Her sentences are generally broken and she is unable to formulate anything more complex than short single sentences when writing, despite English being her primary and only language.

6. The doctors also expressed that there is an increased risk of hydrocephalus and strokes/seizures as a result of the dead brain cells.”

10. In the course of the application, I raised the issue of Lillian’s school reports and whether there was anything useful that could be gleaned from the way in which she was progressing at school. In 2018, when Lillian was in Year 1, she was reported to be working “below expected stage outcomes” in English and maths although “has made some progress… and with additional support is working towards achieving her goals”. Lillian was similarly reported to be working below the expected grade levels in 2020 in maths in both semesters in Year 3, and below grade expectations in English in the second semester. Her overall achievement levels have varied between basic and sound. Lillian’s school reports for Year 2 in 2019 are for present purposes to the same effect.

11. In referring to these reports and the comments they contain, I acknowledge that one should not draw any final conclusions and that a pattern of a child’s academic progress needs to be considered, rather than isolated assessments in a small range of school years. However, Professor Fitzgerald has indicated “TB meningitis may have neuro-cognitive sequelae manifesting with learning difficulties, cognitive impairment, hearing deficit, motor/co-ordination problems, seizures, cranial nerve palsies, hydrocephalus and cerebral palsy”. Professor Fitzgerald has quoted a study suggesting that there is “a 36.7% chance of survival without neurological sequelae in children developing tuberculosis meningitis”. He observed that Lillian had “extensive parenchymal disease without seizures and persisting but stable hydrocephalus”. Lillian has “extensive left temporal lobe disease”. He recommended that “her neuro-cognitive status” should be reviewed “in the light of her academic performance in school” involving “an annual review by a paediatrician/paediatric neurologist/developmental paediatrician [as appropriate] with neuro-cognitive testing as dictated by her clinical course”.

12. Lillian’s father told Professor Scheinberg in 2015 that he and his wife continued then to have concerns with regard to Lillian’s speech and language development. They had previously been concerned about her physical development but reported that they considered Lillian had made good progress and that her fine motor skills were “only mildly affected”. Professor Scheinberg referred to the following relevant matters in his 6 November 2015 report:

“5.1 As described in sections 2 and 3 of this report, Lillian, who is now aged 4 years and 2 months, has suffered from disseminated tuberculosis with tuberculous meningitis, tuberculous osteomyelitis, and pulmonary lesions. She was diagnosed with tuberculous meningitis around the age of 17 months. She required anti-tuberculosis treatment for approximately 13 months. Complications have included brain damage particularly to the left temporal lobe, hydrocephalus without the need for shunting, possible VI nerve palsy causing a squint, and mild-moderate developmental delay in the area of speech and language.

….

5.4 Lillian has made a good recovery from tuberculous meningitis considering the high morbidity and mortality usually associated with this disease. However she does present with delayed speech and language, and subtle impairments in fine motor and gross motor skills. Her language has been formally assessed by her speech pathologist and found to be in the mild-moderate range of impairment. Based on my assessment, her personal social skills were within normal limits for age, fine motor functions were within normal limits for age with some difficulty in drawing a man of 3 parts, and gross motor skills were within normal limits with slight difficulty balancing on 1 foot and hopping on her left foot.

5.5   Lillian did not have any focal neurological deficits on physical examination but reportedly has a squint. This was not evident on my examination but I would appreciate review of her next ophthalmology report.

5.6 In my opinion, Lillian’s delay in speech and language are a consequence of her suffering tuberculous meningitis. I am not an expert in the multiple drugs Lillian was prescribed for her tuberculosis, and it is possible that these may have had an additional detrimental impact on her development. The cause of her poor dentition is also outside my area of expertise, presumably this is due to the primary infection, the drugs used for her treatment or a combination of the two. This question may be directed to an expert dentist.

5.7 Lillian appears to be making steady developmental progress, but due to her age I would not consider her ‘stable’ in terms of making a long term prognosis, particularly in cognition and behaviour, and therefore vocational achievement. Based on her current assessment, I expect her to achieve functional (physical) independence at a time similar to her peers, and she does not have any physical impairment which would preclude living independently or gaining employment as an adult.

5.8 Prior to her starting school in 2017, I recommend she have a full neuropsychological assessment to better document any cognitive or executive impairments, and would value the opportunity to reassess her following that. It may be possible at that time to be more certain of Lillian’s prognosis. Lillian is receiving speech pathology input which is appropriate. Her development should continue to be monitored by her paediatrician.

5.9 Lillian has unshunted hydrocephalus. This is unlikely to progress, however opinion from an expert neurosurgeon could be sought to clarify any long term risk. Due to the temporal lobe damage, Lillian will be at an increased risk of developing seizures throughout her lifetime.”

13. In accordance with the recommendations, Lillian was referred for a psychological and cognitive functioning assessment to Professor Richard Mattick who reported on 28 December 2019. Professor Mattick was also provided with Lillian’s school reports. His summary of conclusions and findings in that report is as follows:

“13.12.1 Findings: The findings on psychometric assessment indicate that she has intact adaptive abilities, no evidence of any significant emotional disturbance, average intellectual abilities, good memory abilities consistent with or better than IQ-based expectation, with no evidence of any impairment in her visuo-motor tracking, and good reading ability but relatively poor spelling.

13.12.2 Level of Cognitive Functioning: She performs in the average range and there is no evidence of any impairment.

13.12.3 I do not believe there is any impairment in her cognitive capacity and I do not think there is any instability. She performs in the average range and there is no evidence of any impairment.

13.12.4 Cognitive Limitations: I do not believe that she has any marked cognitive limitations, although again her spelling is rather poor. She may benefit from having particular tutoring in spelling, but otherwise she appears to perform well.

13.12.5 Future Cognitive Function: She is likely to continue to perform at an average level given that she is performing at that level compared with age-matched peers currently. There is no reason to believe there should be any deterioration in her cognitive capacity into the future.

13.12.6 Capability of Making Decisions about Day to Day Activities: Ms Choi is capable of making decisions about her day to day activities in terms of her cognitive capacity and to manage her own money affairs, at an age-appropriate level. I point out that she is eight years and three months of age and that she performs adequately for her age. She will continue to perform normally, I believe.

13.12.7 Employability: I do not believe there is anything in her cognitive functioning which would limit or affect her employment in the future. I expect that her current poor spelling will improve (given her solid intellectual abilities) but she may benefit from some specific tutoring given her lacklustre spelling performance today. Otherwise, her cognitive capacity and academic results in terms of reading appear to be intact.

13.12.8 Future Assistance: I do not believe that she will require particular assistance to manage personal care or domestic tasks given her good adaptive behaviour, lack of emotional disturbance, and intact intellectual and memory abilities. I think she can manage her financial affairs and will continue to develop to be able to manage financial affairs at an age-appropriate level now and into the future. I think that she will be able to make decisions about personal and domestic care.

13.13   Summary: In summary, Ms Choi suffered from TB tuberculosis with abnormalities on MRI scan which gradually improved over time, and medical opinion was that she had made a good recovery.

13.14   Her mother reports some concerns about her daughter’s memory at times, and a concern about learning.

13.15    The functional assessment showed no particular impairment in day to day functioning. There is no pain affecting her. She does not suffer any psychological disorder or behavioural problems.

13.16   In terms of cognitive functioning Ms Choi has average intellectual abilities without any impairment. Her memory abilities are consistent with (or better than) IQ-based expectation, and she has intact visuo-motor tracking and planning, and good reading ability but surprisingly poor spelling ability today. I think her poor spelling needs to be verified with the school and if persistent she should be provided with some tutoring to support her spelling. I would be interested in having information from the school about her spelling capacity specifically. Otherwise, she presents as a pleasant, confident young girl who is without any behavioural or emotional disturbance, with cognition in the average range. The results are consistent with the views of medical practitioners that Ms Choi has made a good recovery, albeit with some current question mark over her spelling capacity.”

14. In assessing the application for approval of the proposed settlement, I must have regard to whether or not it is in Lillian’s best interests. The matters of present concern, as with all similar cases involving young plaintiffs whose conditions have arguably not yet settled, or about whose final prognosis there must necessarily remain some doubt, is that an unforeseen or unexpected change might occur so that the amount agreed upon turns out to be inadequate. My ability to judge these possibilities must ultimately be guided by professional expert opinion. The relatively recent views of Professor Mattick suggest that Lillian’s condition has settled and that her long-term prognosis is equivalent to that of a child who has not suffered the infection sustained by her in this case. In other words, the adequacy of the settlement sum can be considered upon the basis that Lillian’s condition will not change and that predictions, such as those offered by Professor Mattick, are reliable.

15. Lillian has fortunately if not somewhat remarkably emerged from her meningitis with limited problems, none of them major or disabling. Her squint does not appear to be a matter of great concern either to her or to her parents, whose opinion about their daughter’s progress I take to be of considerable importance. The amount of the settlement has factored into it a sum for future economic loss. That would appear to be an overly conservative, and hence generous, provision in the circumstances. I have also given consideration to what Lillian might expect to recover for non-economic loss as a percentage of a most extreme case. The settlement amount more than sufficiently takes account of both these heads of loss.

16. The proposed settlement would appear also to make a modest allowance for the prospect that Lillian will fail to establish any entitlement to damages. I consider that a small discount for the possibility that she might lose is appropriate.

17. Finally, Lillian’s parents have expressed a strong view that they are in favour of the proposed settlement of the proceedings. While I understand that view in the present circumstances, it is not a matter to which I can have particular regard here. This is not a case where the continuation of the proceedings is likely to have a detrimental effect upon Lillian directly, or vicariously because of stresses inflicted upon her parents.

18. I am satisfied on balance that the proposed settlement is in the best interests of the infant plaintiff and I propose to approve it. I therefore make the following orders:

1. I note that this matter has settled subject to approval, in accordance with the terms of a consent judgment dated 2 March 2021 and signed by the legal representatives of the parties.

2. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005.

3. I make orders in accordance with paragraphs 1 to 7 inclusive of that consent judgment which for identification will initial, date with today’s date and place with the papers.

4. I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 1 of the consent judgment, less any authorised deductions for which the consent judgment specifically or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application make pursuant to s 77(3) of the Act otherwise direct.

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Decision last updated: 04 March 2021