DO (an infant) by his next best friend LAN THI HOANG & ANOR -v- KING EDWARD MEMORIAL & PRINCESS MARGARET HOSPITALS' BOARD
[2008] WADC 21
•14 FEBRUARY 2008
DO (an infant) by his next best friend LAN THI HOANG & ANOR -v- KING EDWARD MEMORIAL & PRINCESS MARGARET HOSPITALS' BOARD [2008] WADC 21
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 21 | |
| Case No: | CIV:67/1997 | 25 JANUARY 2008 | |
| Coram: | DEPUTY REGISTRAR HARMAN | 13/02/08 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| PDF Version |
| Parties: | MICHAEL LONG DO (an infant) by his next best friend LAN THI HOANG By his next best friend LAN THI HOANG KING EDWARD MEMORIAL & PRINCESS MARGARET HOSPITALS' BOARD |
Catchwords: | Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia Application contesting answers to request for particulars Turns on its facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
By his next best friend LAN THI HOANG
Second Plaintiff
AND
KING EDWARD MEMORIAL & PRINCESS MARGARET HOSPITALS' BOARD
Defendant
Catchwords:
Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application contesting answers to request for particulars - Turns on its facts
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Legislation:
Nil
Result:
Application successful
Representation:
Counsel:
First Plaintiff : Mr T Offer
Second Plaintiff : Mr T Offer
Defendant : Mr G R Hancy
Solicitors:
First Plaintiff : Vertannes Georgiou
Second Plaintiff : Vertannes Georgiou
Defendant : Dibbs Abbott Stillman
Case(s) referred to in judgment(s):
Nil
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1 DEPUTY REGISTRAR HARMAN: On 30 May 2007 an order was made that the plaintiffs respond to the defendant's requests for particulars of their statement of claim. By the application before me the defendant seeks a springing order alternatively further answers. In effect it contests the sufficiency of the plaintiffs' answers to its requests.
2 The statement of claim discloses that the second plaintiff gave birth to the first plaintiff at the defendant's hospital. The claim for damages for negligence is founded on events in what I take to have been a period of up to 40 hours prior to the birth. It is uncontested that the second plaintiff had been referred to the defendant for management and care of her pregnancy, labour and the expectant birth of the first plaintiff; that the latest of the three occasions that she attended at the defendants' antenatal clinic was on 15 January 1991, at which time the first plaintiff was in breech position; that remedial action (ECV) then undertaken was unsuccessful; that she was requested to attend at the clinic 7 days later; that at 11.10 pm on the following day she was admitted to hospital; and that that at 12.47 am on 17 January 1991 she gave birth.
3 The defendant puts the plaintiffs to proof of the balance of the allegations in the pleading: that the second plaintiff had attended at the hospital at about 10 pm on 16 January 1991 reporting abdominal pain; that at about 11.40 pm she was examined by a medical registrar who found the first plaintiff in breech position; that the registrar had allowed the second plaintiff to proceed with a trial of labour and ordered that there be continuous monitoring of foetal heart rate; that at 12.05 am nurses checked foetal heart rate and discontinued monitoring; that at some time after 12.15 am a monitor was applied, the first plaintiff was found to have persistent bradycardia and the registrar paged; the registrar arrived at 12.40 am; and that prior to delivery the first plaintiff had suffered a severe hypoxic insult which resulted in severe brain damage.
4 As to the medical terminology I have consulted Butterworths Medical Dictionary (second edition). The term "bradycardia" would refer to an excessively slow heartbeat and "hypoxic", to interference with a gas exchange process.
5 There is no pleading to support the attribution of brain damage to the contended negligence of the defendant. The particulars of the allegation of negligence are that the defendant:
"a. failed to perform a cardiotocograph before and/or after the failed ECV;
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- b. failed to vigilantly observe/monitor the second Plaintiff after the failed ECV at 37 weeks;
e.(sic) failed to provide the Plaintiff with advice on discharge after the ECV in relation to the need to seek medical advice immediately if she experienced abdominal pain; (sic)
f. failed to assess and monitor the Second Plaintiff and the First Plaintiff immediately after her attending (the defendant) at about 10 pm on 16 January 1991; (sic)
g. failed to have the second plaintiff assessed by a Registrar or Obstetrician earlier than 11.10 pm on 16 January 1991;
i.(sic) in the knowledge that the first plaintiff was in a breech position and had a persistent foetal bradycardia at 12.15 am (approx.) on 17 January 1991, failed to expedite the first plaintiff's delivery;
j. failed to implement Dr Leung's direction for continual monitoring of the first plaintiff's foetal heart rate;
k. in the absence of the continual foetal heart rate monitoring directed by Dr Leung, failed to carry out more frequent foetal heart rate checks between 11.40 pm and the time of delivery;
k. (sic) failed to detect the presence of foetal bradycardia before 12.15 am on 17 January 1991;
l. failed to ensure that a Registrar or Obstetrician was available on short notice to deliver the first plaintiff in the event that foetal bradycardia was detected by the foetal heart monitoring;
m. failed to promptly respond to Nurse Laird's request for a Registrar to deliver the first plaintiff;
n. failed to advise the second plaintiff as to the risks to the first plaintiff resulting from the breech position and to advise the second plaintiff of the option of delivery through caesarian section;
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- o. discontinued the foetal heart monitoring between 12.05 am and about 12.15 am when such monitoring was of critical importance at the time."
6 By its requests the defendant sought particulars of the linkage contended between the disability and incidents of the duty owed to the plaintiffs by the defendant. The order responded to the concern of the defendant upon which the questions had been founded. In making the order I appreciated that the pleading had stood for a considerable period but determined that the more significant consideration was the plaintiffs' failure to articulate their case. I accept that at a later date and despite the fact that the plaintiffs had not then complied with the order, the action was listed for trial. That might cast some doubt on the prominence that I gave to the state of the pleading, on the other hand it may simply speak to considerations that do not reflect the adequacy of pleadings.
7 I will take the opportunity to canvass some of the pleading issues raised by the statement of claim.
8 Other than that the first plaintiff was diagnosed with persistent bradycardia after 12.15 am on 17 January 1991 there is nothing to either found the alleged hypoxia or otherwise ground it in time. I must confess that despite having now twice heard the defendant I am not sure whether it is troubled by the want of a pleaded connection between the diagnosed bradycardia and the alleged hypoxic event.
9 The particulars of alleged negligence that draw on the datum provided by the ECV undertaken on 15 January 1991 relate to the second plaintiff's attendance at the antenatal clinic.
10 As to particular 8(a), there is nothing to indicate the significance of the defendant not having then performed a cardiotocograph.
11 As to particular 8(b), it is not clear to what period of time the alleged failure to vigilantly observe/monitor relates. The considerations that would relate to any such regime whilst the second plaintiff was at the clinic would differ from those that would apply after she was discharged. I can not discern that a case is put that the second plaintiff ought not to have been released from the clinic. What is intended to be conveyed by the particular is not apparent.
12 As to particular 8(e); the failure to advise the second plaintiff of the need to seek immediate medical advice, there is no pleading of the advice given to the second plaintiff upon discharge. In the pleading relating to
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- her attendance at the clinic the references to persistent breach presentation and low volume of amniotic fluid provide no more than context. There is nothing to suggest that either diagnosis or their combination would justify any particular warning. I can not discern that the contribution to the plaintiffs' case made by the allegations at par 5 is any more than that progress had then been reviewed and that an appointment was then made for further review.
13 Similarly it is not clear what is to be drawn from the pleading at par 6(b): that the second plaintiff had waited to be formally admitted. The particular of negligence put at par 8(f) is that upon the second plaintiff attending at hospital the defendant failed to immediately assess and monitor the plaintiffs and at par(g) that the second plaintiff was not assessed by a registrar or obstetrician prior to 11.10 pm. There is nothing to indicate the significance that the plaintiffs attach to formal admission, any delay in that process being undertaken or to any want of earlier assessment by a registrar or obstetrician. That the plaintiff waited to be formally admitted and/or assessed is not a particular of negligence yet an impression adverse to the defendant may be open upon it.
14 For the purposes of par 8(i), the fact that the first plaintiff was in breech position would appear to be significant, however prior to the diagnosis of persistent foetal bradycardia the only indication that it was significant is put in par 8(n) by the reference to the failure to warn of risks to the first plaintiff. Whatever they may have been they are not specified.
15 In light the allegation at par 7(b) that upon a foetal heart monitor being applied the first plaintiff was found to have persistent bradycardia, what is expressed in relation to monitoring ought to be viewed as significant. In pars 7 and 8 the plaintiffs use the terms "monitoring", "continual monitoring" "continuous monitoring" and "checking" in the context of references to foetal heart rate. In the process of discerning the plaintiffs' case I considered that "monitoring" may simply be generic, that "checking" and perhaps "continual monitoring" would be undertaken periodically and that "continuous monitoring" would be undertaken upon by a monitor being attached to the second plaintiff for a period of time. Following that analysis it is not clear what to make of the allegation of discontinuance of monitoring expressed at par 7(a). It finds its way into the particulars of negligence at par 8(o). I infer that the reference is to continuous monitoring but at the relevant time such a regime had not commenced. At that time, consistent with the content of the first of the two pars 8(k), any monitoring undertaken had been no more than checking. On my analysis of that particular, the conclusion of the period
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- it expresses should be the application of the foetal heart monitor and not as expressed: as the time of delivery. Within what would be up to a 35 minute period of contended failure to implement the direction for continuous monitoring, the foetal heart rate had been checked at a point that may have been 10 minutes prior to its conclusion. There is no pleading of the result of that checking other than the inferences open on the pleading that such monitoring as had been undertaken was then discontinued. My broad assessment is that the plaintiffs' case in relation to foetal heart monitoring is confusing.
16 As to the alleged failure to detect foetal bradycardia prior to 12.15 am on 17 January 1991 expressed at the second par 8(k), there is no pleading that prior to that time the condition obtained. I note that at that point the plaintiffs have there omitted the qualification by which time is expressed at pars 7(a) and (b).
17 As to the contended failure to deliver at short notice expressed in par 8(l), the term "short notice" being relative fails to inform. If at that point the plaintiffs' case is that the period between the diagnosis and the defendant's intervention was too long then that allegation ought to be clearly expressed and some datum provided to found a case to that end. I would make a similar observation in relation to the word "immediately" used at particular 8(g).
18 As to the reference in particular 8(m) to Nurse Laird, it appears in the absence of any context.
19 The issue for consideration is the sufficiency of the plaintiffs' response to the particular questions put and the onus is on the applicant.
20 It emerges from the terms of the plaintiffs' response that what I would characterise as the scant case put that the first plaintiff suffered a "severe intrapartum hypoxic insult" is the best that they can do. To the extent that the defendant now seeks either a direct answer to its particular question or more, the fundamental consideration is whether the plaintiffs could do any better. On what I have read and heard I ought to be satisfied that they can not. Whether recognition of that fact would be considered to be either satisfactory or desirable is not to the point, on the application before me that is the end of the matter.
21 Before I leave that part of the response I note that the plaintiffs raise the prospect that there may have been more than one event of hypoxia for which they attribute responsibility to the defendant. Whatever criticism may be made of the plaintiffs' case, it is that at some unspecified time over
(Page 8)
- what I imagine would be a period of up to 40 hours prior to delivery of the first plaintiff suffered an unspecified hypoxic event which caused the disability. The prospect of multiple events of hypoxia would not be consistent with that case and to that extent the response ought to be struck out. I accept that result is not sought by the applicant but it is fundamental that the pleading process should project consistency.
22 The balance of the matters to be determined in the application emerge from a context in which the defendant has sought particulars of the causal link between the result of the hypoxic event and the defendant's contended negligence. In most cases the plaintiffs' response has been along the lines that the defendant's relevant failure deprived it of the opportunity to identify the first plaintiff's distress and to act in a manner suggested by the particular to which the request relates with the result that the plaintiff's hypoxia was prolonged. On a broad assessment the difficulty presented by such responses is that whilst they embellish upon the contended defaults of the defendant they do not engage with the contended condition of first plaintiff's at the relevant times. On the same broad view the plaintiffs' case becomes less clear as the content of that form of response suggests that the plaintiffs would promote either continuous or multiple events of hypoxia from at least the point of the defendant determining to perform an ECV to the point of delivery.
23 The first such response relates to the failure to perform a cardiotocograph. It suggests that the first plaintiff was then distressed or suffering hypoxia that the procedure would have revealed. That would put the cause of the disability at the point of the second plaintiff's attendance at the defendant's clinic on 15 January 1991. That reading is supported by the contention that the defendant's failure resulted in the prolongation of the hypoxic insult. Within the context presented by the plaintiffs' case, the response simply emphasises that fact there is no pleading of the incidence of the hypoxic insult.
24 The next request of the defendant relates to the particular at par 8(b) that the defendant had failed to vigilantly observe/monitor the second plaintiff after the failed ECV. I have already recorded that the plaintiffs have not presented a case that would suggest that the second plaintiff ought not then to have been discharged. Because the particular does not relate to a specific event within the period comprehended by the claim, although it is consistent with the generality of the case put at pars 7(d) and 8 it fails to differentiate the impact of the contended failure across the different contexts in which the second plaintiff found herself. Otherwise I repeat the last observation that I made in relation to the first response.
(Page 9)
25 The defendant's request in relation to par 8(e) seeks particulars of the allegation that the plaintiffs' failed to provide particular advice on discharge from the clinic. The first observation that I make is that the answer contains a variation from the general form in that it is preceded by the following:
"Had the second plaintiff been provided with advice to seek medical advice immediately upon experiencing abdominal pain following the failed ECV, she would have attended KEMH earlier than 9.15 pm on 16 January 1991."
26 It reveals a case that has not been pleaded. It also suggests that the hypoxic event occurred at or about the time of her attendance at the hospital. The second observation is that the plaintiffs assert an earlier time of the second defendant’s attendance at the hospital than is suggested by par 6(a). In my opinion the change is significant as it amounts to some 45 minutes and appears in a context in which the plaintiffs' assert negligence in that the failure of the defendant to have her immediately assessed. It follows that in so responding it would have been appropriate for the plaintiffs to commit themselves to amending the pleading. The third is that the response does not introduce any causal linkage between any such abdominal pain and the cause of disability.
27 Apart from the last observation that I made in relation to the first such response the only additional features of the next two responses are that the consequence of the contended default is expressed to be the same regardless of the qualification of the proposed assessor. The result is that although differently expressed, in effect the particulars at pars 8(f) and (g) appear to be the same.
28 The next response is not in the form that I have expressed. The defendant sought particulars of the contention that at approximately 12.15 am the defendant knew that the first plaintiff was in breach position and had persistent bradycardia. However the plaintiffs' response is interpreted the issue raised by the defendant is that to refer it to its records is not a sufficient answer. I am satisfied that the plaintiffs have had access to those records and in my opinion it is incumbent upon the plaintiffs to be more specific in responding to the request than simply referring to notes in the records.
29 The next contest relates to another part of the same response: the defendant's alleged failure to expedite the delivery of the first plaintiff. The issue raised is that the plaintiffs to assert the incidence of the event of
(Page 10)
- hypoxia. I would add that it fails to articulate any useful datum against which the defendant's contended failure would be measured.
30 The next contested response relates to the defendant's alleged failure to implement the direction for continuous monitoring of foetal heart rate. The only issue with the response is the point that I have already canvassed: that at whatever point in time that the particular would take effect there is no pleading that the first plaintiff was then suffering a severe hypoxic insult.
31 The next relates to the particular that the defendant did not have a registrar or obstetrician available at short notice. In my opinion that response is not sufficient for the same reason. In making that judgment I have considered that the plaintiffs intended to confine the scope of the particular to the period of directed monitoring.
32 The next contested response relates to the assertion that the defendant failed to promptly respond to Nurse Laird's request for a registrar to deliver the first plaintiff. At that point there is no doubt that that the monitoring had revealed bradycardia. An issue taken with the response is that it raises the prospect that delivery could have been undertaken at an earlier time. The defendant contended that even at such a time the first plaintiff may have suffered the disability. In effect the insufficiency with the response applies the consideration which tells against the majority of the contested responses.
33 The next relates to the assertion the defendant failed to advise the second plaintiff of the risks to the first plaintiff of the breach presentation and the alternative course of delivery by caesarean section. One difficulty with the adequacy of the plaintiffs' response lies in the time that it expresses that the failures arose: prior to the onset of the hypoxic event. On my analysis of the width of the plaintiffs' case that would clearly be at least prior to her attendance at the clinic. The response draws in the defendant’s recognition of a risk factor namely low amniotic fluid. The diagnosis of low amniotic fluid was made subsequent to the point that I have identified: upon the second plaintiff's attendance at the clinic. Finally the response does not articulate the risks of which the second plaintiff ought to have been warned.
34 The last contested response relates to contention that foetal heart monitoring was discontinued for a period that commenced about 10 minutes prior to the diagnosis of foetal bradycardia. The issue raised
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- in relation to that response is the fundamental point that the defendant raised in relation to most of the responses: the onset of the hypoxic event.
35 In my opinion in each instance that the defendant has contested the balance of the plaintiffs' responses each such response has been insufficient. The appropriate response is that each be struck out. I accept that there is scope to recognise an inconsistency between the result in relation to the first response and the balance. It is resolved by recognising that the contests relate to particular responses. In effect that if the plaintiffs' can not define a particular event by any useful datum there is no utility in adopting it for other purposes.
36 For the purposes of determining the balance of the application I have reflected the task that I previously set for the plaintiffs and do not resile from my decision to do so. I will leave it to the parties to address me as to the form that my determination ought to take.
37 Before I close I have already observed that a feature of the plaintiffs' response was the prospect that there was the prospect that more than one event of hypoxia had occasioned the disability and that was a different case than the pleading would countenance. So too a feature of the submissions that was along the lines that would suggest that either in this case or conceivably in any case foetal heart beat ought to have been monitored. It is not my appreciation that that is the plaintiffs' case. Be that as it may I recognise that the expectation of the defendant revealed by the questions and the application would only be satisfied if the plaintiffs had had the benefit of such continuous monitoring.
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