Dikschei v Epworth Foundation - [2010] VSC 435

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9767 of 2009

JEAN MAY DIKSCHEI	Plaintiff
- and -
EPWORTH FOUNDATION	Defendant
- and -
DRAKE AUSTRALIA PTY LTD	Third party

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2010
DATE OF JUDGMENT:	27 September 2010 (revised on 28 September 2010 and 19 October 2010)
CASE MAY BE CITED AS:	Dikschei v Epworth Foundation
MEDIUM NEUTRAL CITATION:	[2010] VSC 435

PRACTICE AND PROCEDURE – Stay of proceedings – Medical negligence litigation – Action against hospital – Defendant’s request to plaintiff to submit to diagnostic medical procedure – Plaintiff unwilling – Whether refusal or neglect is without reasonable cause – Application for stay –Applicable considerations for discretion – Rule 33.04

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mrs M. Hartley SC with Ms M. Milsom	Maurice Blackburn
For the first defendant	Mr N. Murdoch	DLA Phillips Fox
For the third party	Mr J. Uljans (solicitor)	Hall & Wilcox

HIS HONOUR:

This is a medical negligence claim against a hospital. The plaintiff, now 76 years old, was an inpatient at the Epworth hospital recovering from surgery. She had a central venous catheter (a tube or line) inserted into her right shoulder or neck area. She alleges that a nurse who attended her to place antibiotic medication into the line squeezed and manipulated the line. As that happened, she lost control of her limbs and had extreme pain in the head. She could not speak. Her case, and the medical evidence adduced for this application, is that she suffered a stroke.

The cause of the stroke, it is alleged, was the nurse’s squeezing of the line, which created an air embolism (an air bubble or gap) in the line that entered the right atrium (side or chamber) of the heart. It is common knowledge that the heart is divided into a left and right side. The embolism then went or “shunted” from the right side across into the left side through the atrial septum (wall) by a patent foramen ovale (a “PFO”), and via the aorta (the body’s largest artery) into the brain. The effect of an embolus is to block off blood supply and deprive the brain of oxygen.

It was explained to me that a PFO is a defect in the septum between the two chambers of the heart. The defect is an incomplete closure of the septum wall, sometimes called a hole in the heart. The opening is present in everyone at birth. That is because the foramen ovale is a normal and quite important component of foetal circulation, allowing oxygenated blood to cross from the right atrium into the left atrium as blood through the foetal lungs is absent. For most people, the two components of the septum fuse after birth. But in some cases, a small communication may still persist, giving origin to a PFO.

Mrs Dikschei required intensive care and rehabilitation to deal with her physical and…

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.

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Details

Case: [2010] VSC 435
Decision Date: 27 September 2010 (revised on 28 September 2010 and 19 October 2010)

CaseChat Overview and Summary

Dikschei v Epworth Foundation involved a claim for medical negligence against the Epworth Foundation, a hospital, by the plaintiff, Dikschei. The dispute centred around the defendant's request for the plaintiff to undergo a diagnostic medical procedure before proceeding with the trial, which the plaintiff refused. The matter was heard in the County Court of Victoria. The central legal issue before the court was whether the plaintiff's refusal to submit to the diagnostic procedure was without reasonable cause, thereby warranting a stay of the proceedings in accordance with Rule 33.04 of the County Court Civil Procedure.

The court considered several factors in determining whether the plaintiff's refusal was without reasonable cause. It examined the medical evidence provided by the parties, the potential impact of the diagnostic procedure on the plaintiff's health, and the relevance of the procedure to the issues in the case. The court also took into account the principle that the conduct of the parties should be such that proceedings are not unnecessarily prolonged. Ultimately, the court concluded that the plaintiff's refusal was without reasonable cause, as the diagnostic procedure was relevant to the issues in dispute and did not pose an undue risk to the plaintiff's health. The court held that the defendant's request was reasonable and that the plaintiff's refusal was vexatious.

In light of the findings, the court exercised its discretion under Rule 33.04 to stay the proceedings. The court ordered that the matter be stayed until the plaintiff complied with the defendant's request to undergo the diagnostic procedure. This decision underscored the importance of parties engaging in litigation in a manner that is not unnecessarily obstructive or vexatious. The court's ruling reinforced the principle that parties must cooperate in the resolution of disputes, particularly in cases involving medical evidence and health considerations.

Orders