Diaz v South Eastern Sydney Local Health District

[2018] NSWSC 772

Supreme Court

New South Wales

Medium Neutral Citation:

Diaz v South Eastern Sydney Local Health District [2018] NSWSC 772

Hearing dates:

24 May 2018

Date of orders:

24 May 2018

Decision date:

24 May 2018

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) The first defendant's Notice of Motion of 27 April 2018 is dismissed.

By and with the consent of the parties:

(2) Costs of the parties are costs in the cause.

(3) Direct the plaintiff to file a Further Amended Statement of Claim in accordance with these reasons by 22 June 2018.

(4) Direct the plaintiff to serve any further opinion Professor O'Connor wishes to rely upon by 22 June 2018.

(5) List for directions before the Registrar at 9:00 am on 4 July 2018.

Catchwords:

NEGLIGENCE – application for summary dismissal - removal of contraceptive implant from arm - vicarious liability - visiting staff specialist at public hospital referred patient to himself in a private capacity - avoided delay - difficult operation - resulted in median nerve injury - dismiss application - issue whether specialist was an expert in removal of device when deeply embedded in arm - plaintiff’s cause of action not sufficiently pleaded - plaintiff’s case not completely untenable

Legislation Cited:

Nil

Cases Cited:

Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55;
Wickstead v Browne (1992) 30 NSWLR 1

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Pia Dominique Diaz Baeza (Plaintiff)
South Eastern Sydney Local Health District (Defendant)

Representation:

Counsel:
M Gerace (Plaintiff)
S Kettle (Defendant)

  Solicitors:
Slater & Gordon Lawyers (Plaintiff)
Makinson & d’Apice Lawyers (Defendant)

File Number(s):

2017/54073

EX tempore Judgment (revised)

1. This morning I have dealt with an application for summary dismissal of a medical negligence case brought by the first defendant. After full and helpful argument from Mr Kettle of Counsel for the first defendant and Ms Gerace of Counsel for the plaintiff, I have indicated to the parties that I am not persuaded that the plaintiff's claim against the first defendant is completely untenable.

2. It is necessary for me to explain my decision. In formulating the test as “completely untenable” I am conscious that it has been formulated in many different ways by other judges in leading cases. However, I think the test as I have expressed it sufficiently describes the legal bar that was necessary for the first defendant to clear in order to establish an entitlement to dismissal of the case against it without trial.

3. The plaintiff's claim relates to a severe injury to her median nerve in her left upper arm. The injury occurred during the removal from that location of a contraceptive implant which had been inserted some years earlier.

4. It is necessary to say something about the circumstances. The evidence read before me indicates, for present purposes only, that the plaintiff consulted her general practitioner (GP) about the removal of the implant on 4 May 2015. An ultrasound was requested to locate the position of the implant because, as it appears from the evidence read, it could not be palpated on physical examination. This apparently occurs sometimes.

5. The implant was then located deep in the plaintiff's left upper arm near the fascia over the short head of her bicep. It does not matter for present purposes, but the evidence read suggests that normally it should be easily palpable in the subcutaneous space. Either when it was first inserted it was embedded too deeply or it “migrated” subsequently, possibly during a liposuction procedure that the plaintiff had undergone whilst the implant was in place. In any event, given its deep location the plaintiff’s GP thought it best to refer her to the Royal Women's Hospital (the Hospital), operated by the first defendant.

6. The plaintiff did not act on that referral until 14 June 2016. She was initially reviewed by a Registrar who took the history of the implantation. The Registrar was unable to palpate the implant and became aware that it was deep in the left arm by reference to the ultrasound the plaintiff had with her. As it happens, the second defendant, Professor Ledger, was the visiting staff specialist that day. The Registrar thought it best to consult him and he examined the plaintiff. Professor Ledger’s findings accorded with those of the Registrar, which further accorded with the ultrasound, which in turn accorded, I infer, with the GP's findings back in May 2015.

7. Without going into unnecessary detail, there was a discussion about the implants removal and it was made clear to the plaintiff that it could be done at the Hospital but the waiting time may be as long as one or two months. For present purposes I am prepared to assume, as some of the material before me indicates, that the plaintiff expressed some disappointment about that "delay" and discussed with Professor Ledger how the procedure might be done sooner. He suggested it could be done by referral out to a private consultant. It was arranged between them that he would refer the plaintiff to himself in his private capacity.

8. He saw the plaintiff in his rooms prior to the surgery and on 11 July 2016 carried out the surgical removal of the implant under ultrasound guidance.

9. Because of the location of the implant, the operation was described as “difficult”. Professor Ledger said, in his operation note, that he exposed the essential contents of the arm with blunt dissection and identified the tip of the implant which had become encapsulated in fibrosis growth. That was cut open with scissors, the end of the implant was secured with forceps and removed. The surgical wound was then closed.

10. In the week that followed, the plaintiff developed what has been referred to as a dense numbness in the left hand in the median nerve distribution. There were other neurological deficits affecting the left arm and the muscles enervated by the median nerve. The plaintiff underwent surgical treatment for that injury and it was repaired by Dr Peter Scougall, a hand and upper extremity specialist, but she is left with ongoing significant disabilities.

11. The Hospital’s case, in summary, is that there is nothing in the averments of material fact pleaded or in the evidence read that suggests any negligence on its part. Its argument before me today is that, if the injury to the median nerve was caused through the negligence of anyone, it must have been caused by the negligence of the Professor Ledger or someone else working with him after the referral out.

12. Essentially, the first defendant argues that the scope of its obligations to the plaintiff as its patient ceased no later than when the plaintiff acted upon the referral out by consulting Professor Ledger in his private rooms on a date prior to the surgery. There is nothing, so it is argued ably by Mr Kettle of Counsel, to suggest that anything that happened while the plaintiff was its patient constituted, in any way, negligence on its part or on the part of any person for whose acts and omissions it may be legally responsible.

13. The Hospital accepts that its duty to the plaintiff as its patient is non-delegable and that it is responsible accordingly for the negligence of anyone occurring within the scope of its obligations to the plaintiff. It specifically accepted that in his capacity as a visiting or staff specialist, The Hospital is vicariously liable for the acts or omissions of Professor Ledger. However, it is said there can be no complaint, and there is no complaint, about: the examination carried out by the Registrar; his consultation with Professor Ledger as the surgical specialist; and the examination by Professor Ledger.

14. It is also said that there cannot be any sensible complaint about Professor Ledger referring the plaintiff out to be dealt with as a private patient, given the content of his conversation with the plaintiff about that. I repeat, the argument is once there was a referral out, and certainly no later than the date of the consultation between the plaintiff and Professor Ledger in Professor Ledger's rooms, The Hospital’s obligations, if any, had ceased.

15. Ms Gerace of Counsel pointed out, by reference to the opinion of Professor Mark O'Connor relied upon by the plaintiff to make good her case against the Hospital, that there is a basis in the evidence which, if accepted at trial, would demonstrate negligence, if not by the Hospital “personally”, certainly by a person for whom it was vicariously liable, namely, Professor Ledger. The evidence pointed to in that regard arises out of Professor O’Connor’s first report of 6 February 2017. The first question is asked and answered in the following way:

“1. Whether in the circumstances it was prudent practice for Professor Ledger to advise (the plaintiff) that he could perform the removal of the (implant) himself?

Answer: No. Unless Professor Ledger had extensive experience (say more than ten operations) in removing very deeply-embedded (contraceptive implants) he should have referred the plaintiff to one of the recommended medical practitioners available to do these procedures. Schering-Plough has a readily available list of Sydney-based imaging specialists who perform these procedures at the Royal Hospital for Women, Randwick; Kogarah and Liverpool. It is worthy to note that the plaintiff's case was predictably difficult because of a previous difficult removal of a (contraceptive implant). This should have alerted Professor Ledger and deterred him from attempting the removal without expert assistance.”

16. Reliance is also placed upon a second report of Professor O'Connor's, obtained admittedly after the Hospital’s solicitors first raised with the plaintiff's solicitors the former's belief that there was no tenable case pleaded, or founded in the evidence, against the Hospital. Ms Gerace referred me to questions 1 and 2 directed to the expert and answered in his supplementary report. I will not quote them at length. I pointed out in arguendo that there was a difficulty with those questions in as much as they asked the expert, in terms, to propound upon the nature and content of the duty of care owed by the Hospital to a patient when referring a patient to a private practitioner for treatment. It seems to me that fundamentally, without going into great detail, that formulation of such questions in those terms and answers by the expert by reference to the concept of duty, confounds the role of the expert with that of the Court, and there would be difficulty in having evidence in that form admitted.

17. Having said that, Professor O’Connor asserts, and no doubt this would be highly controversial at any trial, that the Hospital should not refer a patient to a private practitioner unless it could not provide the services in house. He goes on to assert that the Hospital had a positive duty: to undertake any necessary investigations itself; to have appropriately experienced and qualified experts perform the retrieval of the implant; to ensure that if Professor Ledger was to do it (presumably privately), then he should have been assisted by an appropriately qualified specialist.

18. No doubt, as I have said, even if in a properly admissible form those matters would be highly contentious at any trial. It seems to me that - leaving aside questions of an urgent need for medical treatment, which is not this case - it cannot be the law that a public hospital is not entitled to refer a patient for treatment to a private practitioner, particularly where there are clear therapeutic advantages in doing so and the referral out accords with the patient's wishes.

19. The clear therapeutic advantage here, of course, is the shorter waiting time for the operation to be done privately. There was no question here about the capacity of the patient to pay for the private provision of the services. Either she was privately insured or she was sufficiently affluent to bear the costs herself.

20. Moreover, although I am not instructed by the citation of clear, binding authority on point, I cannot conceive of it being law that before there can be any referral of a patient out for private treatment that a public hospital must first exhaust all of its capacity to treat the patient. A fortiori, where there is no urgency and where the patient prefers referral out for good reasons of her own, such as less delay. This can be illustrated by the consideration that if a patient wishes to discharge himself or herself from a hospital, the hospital has no capacity to hold the patient against his or her will, leaving aside irrelevant questions which might arise in the context of mental health legislation.

21. It would seem to me that a strong argument can be mounted that such averments would be clearly and legally untenable should they emerge an iteration of a further amended pleading. Having said that, and given the view I am about to express, it is unnecessary for me to decide those legal questions finally one way or another.

22. My primary view is that the passage quoted from Professor O'Connor's first report (at [16] above), based no doubt as it is on assumptions which will be hotly contested at the trial, sufficiently gives rise to a tenable cause of action not unlike the kind identified by the High Court of Australia in Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 (“Chappel v Hart”). That is to say, that Professor O'Connor's opinion is that the removal of a deeply embedded contraceptive implant can only be competently undertaken by a suitably experienced specialist. His test is more than ten prior such procedures. That, of course, assumes that Professor Ledger doesn't have that relevant experience, a matter which no doubt may also be contested at the trial.

23. That crucial facts are contestable, even strongly so, does not of itself entitle a party, even when a party with a strong case, to summary dismissal. The rules which govern these applications are designed to ensure that persons who invoke the jurisdiction of the Court are not denied a hearing on the merits, except in the clearest of cases.

24. If the facts underpinning that case in negligence (including that Professor Ledger was not sufficiently experienced to carry out this procedure) were to be made good at the trial it seems to me that it is arguable that the Hospital would be vicariously liable for Professor Ledger's breach of duty in failing to refer the plaintiff to a sufficiently experienced specialist. It seems to me also that, by analogy with Chappel v Hart, if there had been a negligent referral out by the Hospital to a specialist who lacked the particular experience necessary to undertake the procedure with care, that would be possibly and arguably be a cause of the plaintiff's damages concurrently with the negligence of the specialist carrying out the procedure.

25. I wish to emphasise at this stage there is no reason to suppose that Professor Ledger is other than an eminent, highly qualified specialist obstetrician and gynaecologist. Moreover, the evidence before me indicates that the work of surgical removal of contraceptive implants is commonly done by specialists in that area. The only matter which makes the plaintiff's case against the Hospital tenable is the consideration that those who undertake the removal of deeply embedded implants need to have special experience over and above what might be the “ordinary” experience of such a specialist.

26. The second point raised by Ms Gerace is what might be referred to as the rule in Wickstead v Browne (1992) 30 NSWLR 1. That is to say, that a court will not order summary dismissal, non-suit or verdict by direction on the application of one of multiple defendants until the case of all parties is closed. This decision of the Court of Appeal proceeds on the basis of settled principle established by High Court authority. The justification for it, of course, is that until the story of all parties is told, the full picture cannot be ascertained. And doubtless it is the experience of the courts that frequently in multi-defendant litigation, one defendant will either intentionally, or incidentally in the course of defending itself, lead evidence which inculpates another defendant. As Mr Kettle has argued, it does seem unlikely that Professor Ledger would call evidence which exculpated him in his private capacity but inculpated him in his public capacity. Nonetheless, as Ms Gerace argued, other evidence may emerge which otherwise implicates the Hospital within the scope of the plaintiff's case as presented at the trial.

27. I have also discussed with counsel that no iteration of a statement of claim I have seen seems to advance the tenable case against the Hospital that I have identified in the course of these reasons. To that extent it may be said that the Hospital was well justified in the concerns that underpin this motion. However, given that I have identified from the evidence actually led before me a tenable underlying case, even if it is not yet pleaded, then I should refuse the application for summary dismissal. Having said that, it is necessary that I require the plaintiff to re-plead her cause of action.

28. My orders are:

1. The first defendant's Notice of Motion of 27 April 2018 is dismissed.

By and with the consent of the parties:

2. Costs of the parties are costs in the cause.

3. Direct the plaintiff to file a Further Amended Statement of Claim in accordance with these reasons by 22 June 2018.

4. Direct the plaintiff to serve any further opinion Professor O'Connor wishes to rely upon by 22 June 2018.

5. List the proceedings for directions at 9:00 am on 4 July 2018 before the Common Law case management Registrar.

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Decision last updated: 30 May 2018