Crofts v State of Queensland

[2001] QSC 220

IN THE SUPREME COURT

OF QUEENSLAND

BRISBANE  No S 5082 of 1998

[2001] QSC 220

BETWEEN:               LEANNE MAORIE CROFTS

First Plaintiff

AND:CLAYTON LEE CROFTS (An infant) by his

next friend Leanne Maorie Crofts

Respondent/Second Plaintiff

AND:STATE OF QUEENSLAND

Applicant/First Defendant

AND:THE CORPORATION OF THE TRUSTEE

OF THE SISTERS OF MERCY IN

QUEENSLAND

Second Defendant

AND:DR LEE ATKINSON

Third Defendant

REASONS FOR JUDGMENT

B W Ambrose J

Delivered the 26th day of June 2001

CATCHWORDS:     PROCEDURE- Miscellaneous procedural matters- Medical examination of infant plaintiff for forensic purposes – very slight statistical risk of death from necessary anaesthesia – Direction that plaintiff be examined by anaesthetists to ascertain risk to plaintiff of different types of anaesthesia and sedation.

Counsel:Mr Wilson for the applicant/first defendant

Mr Sheaffe for the respondent/second plaintiff

Solicitors:Hunt & Hunt for the applicant/first defendant

Brett Smith & Co for the respondent/second plaintiff

Statutes:Uniform Civil Procedure Rules (UCPR) 1999 (Qld); r 171, r 293, r 483

Limitation of Actions Act 1974 (Qld)

Cases:Prescott v Bulldog Tools Ltd (1981) 3 All ER 869

Stace v Commonwealth (1989) 51 SASR 391

Timminds v Yamdilla Park Pty Ltd [2000] QSC 281

McKinnon v Commonwealth of Australia [1999] FCA 1456

Hearing Dates:           26 April 2001

1. This is an application by the first defendant (“State of Queensland”) for an order that the second plaintiff (“Clayton”) attend for examination by an anaesthetist and also for an MRI scan examination by a neurologist.

1. That application was heard with a second application by State of Queensland for an order that the action by the first plaintiff (Clayton’s mother) against it be struck out pursuant to UCPR 171 or alternatively that it obtain judgment against Clayton’s mother pursuant to UCPR 293 or alternatively that the issue of whether the action of Clayton’s mother is barred by the Limitation of Actions Act 1974 (Qld) be decided as a separate question pursuant to UCPR 483 before the trial of this action before a jury.

1. This action was commenced by the issue of a writ of summons on 4 June 1998.  A statement of claim dated 26 October 1998 was served on 29 October 1998.

1. State of Queensland delivered an amended defence to that statement of claim on 27 July 1999. 

1. It is unnecessary to analyse in detail, the various facts so far pleaded by the parties to this application.

1. Stated shortly, it is the case for Clayton that he suffered very serious and debilitating injuries by reason of the nature of treatment received and indeed not received at about the time of his birth on 1 April 1994 and over a period of time after his birth.  It is his case that both the treatment and absence of treatment received at Ipswich Hospital was due to the negligence of persons attendant upon his birth and subsequently for which State of Queensland is liable.

1. Clayton’s mother also claims damages for negligence against State of Queensland in respect of the negligent management of her pregnancy and delivery of Clayton by doctors and staff of Ipswich Hospital prior to, at the time of, and subsequent to Clayton’s birth.

1. Clayton’s mother claims that as a consequence of the hospital’s negligence she has suffered nervous shock resulting inter alia in depression.

1. It is claimed that Clayton suffered injuries particularised as hydrocephalus secondary to aqueduct stenosis, a left spastic hemiplegia, nystagmus and squint and developmental retardation.

1. The largest claim for damages is that made by Clayton.  It seems this claim is for several millions of dollars.  The only intimation of the size of the claim is that endorsed on the writ of summons which is for 7 million dollars.  There is no indication on the writ as to how that claim for damages might be apportioned between Clayton and his mother although looking at the particulars of damage one would assume that by far the greater part of that sum would be referable to Clayton’s claim.

1. The plaintiffs seek to have the issues defined in the pleading determined by a jury.  There has been a great deal of medical evidence assembled for use on this application.  In my judgment it would be unhelpful to analyse that evidence in detail.  It suffices to say that while there is little disagreement between the various experts retained for the plaintiffs and those retained for State of Queensland as to the medical symptoms and conditions which Clayton exhibited at the time of and shortly after his birth, there is significant difference of opinion as to whether those conditions are attributable to the management of the plaintiff’s pregnancy prior to delivery of Clayton at Ipswich Hospital,  or Clayton’s treatment at or subsequent to time of birth or whether they were either congenitally based  or attributable to events that took place in the course of a difficult delivery for which the hospital staff could not be responsible in negligence.

1. It is unnecessary upon this application by State of Queensland to consider the cause of action which Clayton pursues against the Sisters of Mercy and Dr Atkinson.  The facts pleaded to support that cause of action relate to delay in providing, and the nature of, treatment which Clayton received at Mater Hospital in respect of a condition from which he suffered allegedly as a consequence of the negligence of doctors and medical staff at Ipswich Hospital or at least as a consequence of their failure to diagnose and treat that condition in a timely way.

1. Some doctors retained by State of Queensland contend that if a MRI scan is taken of parts of Clayton’s brain, damage to which much of his current symptomatology is attributed, there is a possibility, if not a likelihood, that it would reveal certain characteristics of the brain which might assist in the determination of the real issue between the parties – which is whether Clayton’s present condition is attributable to the management of his delivery and the treatment he received thereafter, or to congenitally based factors or to factors for which State of Queensland is not liable in negligence.

1. Stated shortly, within a short time of his delivery, Clayton was diagnosed to be suffering from cerebral palsy and hydrocephalus, both of which led to developmental retardation.

1. There is medical evidence that Clayton’s present disabilities are due to one or more of the following –

   (i)         Intrapartum asphyxia.

   On the material, the development of this condition would seem arguably to be one of the “accidents of birth” for which State of Queensland could not be held liable in negligence.

   (ii)       Neonatal hypoglycaemia.

   This is a condition which, on the material, seems arguably at least to have resulted without any fault on the part of the hospital staff.  It seems to be the case for Clayton that failure to detect this condition and remedy it promptly, led to at least some of the serious brain injuries of which he complains.

   (iii)      Congenital aqueduct stenosis

   This condition is asserted to have caused a severe hydrocephalus which was not promptly diagnosed and treated at Ipswich Hospital and was inadequately treated at Mater Hospital. 

1. From the pleadings, the content of medical reports and from argument addressed upon these applications, State of Queensland seeks to investigate as fully as possible the extent to which any of the serious injuries, in respect of which Clayton brings his action against Ipswich Hospital and the Mater Hospital, are attributable to the failure of Ipswich Hospital to diagnose and properly treat the neonatal hypoglycaemia from which contemporaneous hospital records indicate Clayton was suffering at material times.  Three doctors retained for State of Queensland, Drs Appleton, Burke and O’Connell, have all expressed the view that an MRI scan would be of assistance in determining to what extent, if any, the treatment or lack of treatment Clayton received in Ipswich Hospital for neonatal hypoglycaemia was a cause of the serious brain injuries in respect of which he sues.

1. On the other hand, Drs O’Duffy, Slaughter and Coroneous have reservations about the likely assistance that an MRI scan would give in determining the cause of Clayton’s brain injury, although, Dr O’Duffy does refer to expert studies which consider changes in the brain of some children who have suffered neonatal hypoglycaemia detectable by MRI scan.

1. The plaintiff has already had two CT scans, one taken 30 June 1994, and the other 24 November 1994.  Both demonstrate brain injury.  Doctor Frawly in a report of 23 April 2001 observes –

“A MRI may show the extent of the injury more clearly than the CT scans available.  Even with the more detailed information available from a MRI, a specific diagnosis may be difficult and it is unlikely that dating of the injury would be more specific.  The potential benefits of a MRI need to be considered against the fact that the patient will most likely need a general anaesthetic to obtain this information.”

Having considered both CT scans, that doctor expressed the view that the distribution of the changes detected would favour ‘a hypoxic-ischaemic injury’.  Hypoglycaemia can give similar changes.

1. However, those doctors retained by the plaintiffs point out the risk associated with anaesthesia given to any person including children.  Whether any have examined Clayton to assess the risk for him does not appear from the record.  I assume he has not been so examined.

1. The medical evidence is to the effect that because of the age and predictable behaviour of Clayton resulting from the serious brain injury from which he suffers, it would be quite impracticable to attempt to have an MRI scan performed upon him unless he were anaesthetised.  It is critical for the success of such scan that the person scanned remains immobile.  It is agreed, I think generally, by the medical experts that because of his age and condition it is quite unlikely that a scan could properly be taken of Clayton’s brain unless he were anaesthetised or sedated in some way before the scanning process commenced.

1. The medical evidence indicates generally that there is always some degree of risk of death when a person is anaesthetised.  However, the evidence is also to the effect that the risk is a very low one.   Statistically, the risk of death seems to be between 1 in 50,000 and 1 in 68,000.  One of the statistics taken was that there were 135 anaesthesia-related deaths out of 8.5 million persons to whom anaesthetics were administered.  The second set of statistics indicated that there were 116 deaths attributable to anaesthesia where 7.8 million people had been anaesthetised. The statistical risk of death from anaesthesia is therefore about .0015%.

1. It is clear that there are millions of people who are anaesthetised annually and survive that treatment.

1. The difficult matter to be determined then is whether an order should be made which would put significant pressure upon Clayton’s mother as his next friend to consent to the administration of anaesthetic to Clayton to permit the MRI scan to be made.   This pressure would inevitably result from the form of order which State of Queensland seeks.  The order sought is that a direction be given that an MRI scan be performed upon Clayton and that steps reasonably necessary to permit that scan to be made be taken – including the administration of a general anaesthetic, and that the further prosecution of Clayton’s action be stayed pending the taking of that MRI scan.

1. In support of its application, State of Queensland referred to Prescott v Bulldog Tools Ltd (1981) 3 All ER 869; Stace v Commonwealth (1989) 51 SASR 391; Timminds v Yamdilla Park Pty Ltd [2000] QSC 281 and McKinnon v Commonwealth of Australia [1999] FCA 1456.

1. In determining an application of this sort it was held in Prescott that a court must -

(a)        assess whether the defendant’s request is reasonable in the light of information and advice received from its experts;

(b)        assess whether the plaintiff’s refusal is similarly reasonable;

(c)        if both are reasonable then balance the plaintiff’s right to personal liberty against the defendant’s right to defend itself in the litigation the plaintiff has brought against it; one right not being considered to be more important than the other right;

(d)        examine objectively the weight of the reasonableness of the defendant’s request as seen by it as against the weight of the plaintiff’s objection and balance one against the other “to ensure a just determination of the cause as between the parties taking into account their reasonable requirements.”

1. The balance of medical evidence in this case suggests that an MRI scan may reveal a detectable brain condition which will support Clayton’s contention that due to alleged negligence of the people involved in his delivery and treatment at Ipswich hospital, a condition of untreated neonatal hypoglycaemia did result in brain damage.  If a MRI scan demonstrated that, Counsel for State of Queensland intimated that it might lead to a prompt settlement of the plaintiff’s action in his favour. 

1. If on the other hand, the MRI scan did not reveal any such detectable brain condition, that fact alone would not conclude the issue against Clayton, because some medical evidence available to Clayton would be to the effect that neonatal hypoglycaemia may cause injury of the kind from which Clayton suffers, by its impact on the brain without leaving any injury detectable by MRI scan.

1. In my view, to the extent that medical opinion has been expressed on behalf of Clayton to the effect that although it might be appropriate to subject Clayton to an MRI scan for perceived clinical or therapeutic advantage by subjecting him to the statistical risk of death from anaesthetic to which I have referred, it is inappropriate to subject him to such risk – however infinitesimal – for the purpose of exhausting the investigative processes presently available to assist in determining the part, if any, played by the alleged failure to diagnose and give timely treatment to the plaintiff’s neonatal hypoglycaemia upon his birth, I find that opinion of little assistance in determining this application in accord with the principles expressed in Prescott.

1. For State of Queensland, it is contended that it is defending a very large claim with quite complex and conflicting medical evidence to be litigated before a jury.  It is contended that there is the possibility – which seems to be admitted by all - that the MRI scan may enable more confident expert views to be given and perhaps enable certain hypotheses to be excluded.  Moreover, a scan which did detect damage of the sort which could be attributed to a failure to give timely treatment to neonatal hypoglycaemia, would greatly support Clayton’s claim against the defendant.  A failure of the MRI scan to detect such injury, on the other hand, would not necessarily defeat his claim in the light of medical evidence available to him apparently that it is not in every case that untreated neonatal hypoglycaemia leading to injuries of the sort in respect of which Clayton brings his action leaves brain damage detectable by MRI screening.

1. In my judgment, it is understandable that his mother is unwilling to subject Clayton to any risk of death for the purpose merely of obtaining evidence from the MRI scan which might only support (albeit perhaps strongly) the evidence already available to her but which it would seem, could not unequivocally support the contention of State of Queensland that the non treatment of his neonatal hypoglycaemia in a timely fashion, was not a cause of the serious brain injury in respect of which Clayton brings his action, although it might arguably lend some such support to that contention.

1. One consideration which might assist in balancing the reasonableness of the stand taken by each of the parties to this application in accord with the principles stated in Prescott is the statistical risk of death to children of Clayton’s age from causes unrelated to anaesthesia – such as infections, food poisoning, road accidents etc.  Obviously in performing the balancing exercise referred to in Prescott a risk of death from an event of 1 in 10 would weigh more heavily in this plaintiff’s favour than would a risk of 1 in a million - if the attitude of each of the plaintiffs and defendants is initially categorised as “reasonable” without any comparison of such statistical risks.

1. In many respects the longevity of any person of any age and/or occupation is quite unpredictable except by reference to relevant statistical tables.  On one view, life is a gamble because its duration depends upon the happening or non-happening of events which in the absence of statistical guidance are quite unpredictable; even with such guidance, in individual cases those happening events often remain unpredictable for practical purposes.  In this context, I would of course categorise an insurance related reliance upon statistical guidance as a practical purpose.

1. If Clayton as a 7 year old child is, upon analysis of records of causes of death, subjected to a significantly greater statistical risk of death from events, which all children in his age group encounter, other than anaesthesia, that, in my judgment, is an extremely important consideration in the balancing exercise to which Prescott refers.

1. Reference to the ABS Publication 3303.0 Causes of Death published 18 December 2000 section 3.1, in the statistics showing death rates in the State of Queensland of male children between the ages of 5 years and 14 years indicates a death rate of .2%.

1. In the same publication at section 1.1, statistics are given for the cause of death.

1. In the age group of 1 to 14 years, 19.2 % of male children between the ages of 1 and 14 years die from “transport accidents.”

1. 43% of such male children die of “external causes.” 

1. Upon the evidence then, the statistical risk of death in all age groups from anaesthesia is something less than .0015% of persons who are anaesthetised.

1. However, the statistical rate of death from “transport accidents” in male children from 1 to 14 years of age is 19.2%, from accidental drowning and submersion 12.4%, and from all external causes of morbidity and mortality 45%.

1. There is expert evidence from two anaesthetists, Dr Allen and Dr Moloney, to the effect that it is not helpful to have regard only to statistical records of deaths resulting from anaesthesia when determining the risk of death which anaesthesia would pose for Clayton.  There are different types of anaesthetics/sedations which must be considered against his physical condition and perhaps the health history of members of his family.  To date Clayton seems not to have been examined by expert anaesthetists to assess what would be the risk to him of being anaesthetised or sedated to permit an MRI scan to be performed.  Looking only at statistical records Dr Moloney observed that in the period 1991 to 1996 the risk of death from anaesthesia was between 1 in 63,000 and 1 in 68,000 which was a statistic of “all comers” – including the very old and those gravely ill from cancer, heart conditions etc.

1. In my judgment, in comparison with all other statistical risks of death, the risk of death from anaesthesia is so minimal that in balancing only that risk to the plaintiff against carrying out an examination which will assist in the just determination of a complex medical issue, the balance would come down firmly in favour of requiring the plaintiff to have an MRI examination of his brain.

1. However I accept the expert evidence of Dr Allen and Dr Moloney that it is necessary to have Clayton examined by skilled anaesthetists to determine what would be the risk to him of the most suitable form of anaesthesia or sedation to permit an MRI scan to be taken.

1. I therefore direct that the second plaintiff, Clayton Lee Crofts, be examined by Dr Allen and Dr Moloney and by any other experienced anaesthetist nominated by the plaintiff to report upon the risk to Clayton should he undergo the most suitable type of anaesthesia/sedation available to permit him to have an MRI scan, and that all steps reasonably necessary to permit that report to be made including a consideration of his family’s medical history if necessary be taken. 

1. I order that the further prosecution of the second plaintiff’s action be stayed pending the obtaining of those reports.

1. I order that copies of all anaesthetists’ reports be made available forthwith to the solicitors for the plaintiffs and the defendants.

1. I adjourn the further consideration of the application pending receipt of the said reports.