Docker v Adventist Healthcare Limited

[2020] NSWSC 1737

Supreme Court

New South Wales

Medium Neutral Citation:

Docker v Adventist Healthcare Limited [2020] NSWSC 1737

Hearing dates:

14 October, 2 and 3 December 2020

Date of orders:

03 December 2020

Decision date:

03 December 2020

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 13 October 2020 and signed by the legal representatives of the parties.

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

(3) I make orders in accordance with paragraphs 1 to 6 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 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 made pursuant to s 77(3) of the Act otherwise direct.

Catchwords:

CIVIL PROCEDURE – approval – whether proposed settlement in the best interests of the plaintiff – settlement approved

Legislation Cited:

Civil Procedure Act2005 (NSW)

Category:

Principal judgment

Parties:

Pepita Docker (Plaintiff)
Adventist Healthcare Ltd (Defendant)
Dr Peter Puhl (First Cross-defendant)
Dr Renato Barros (Second Cross-defendant)

Representation:

Counsel:
F Austin (Plaintiff)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Sparke Helmore Lawyers (Defendant)
Avant Law Pty Ltd (First Cross-defendant)
Moray & Agnew (Second Cross-defendant)

File Number(s):

2017/228856

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Pepita Docker presented to the Sydney Adventist Hospital on the morning of 22 November 2013 with a history of symptoms and complaints that included vomiting, abdominal cramping, light-headedness, right handed loss of co-ordination and confusion. Ms Docker was then 46 years old, was morbidly obese and suffered from poorly controlled Type 2 Diabetes Mellitus. She alleges that multiple strokes from which she suffered were neither recognised nor treated in a proper or timely way with the result that she sustained injuries and disabilities that could have been prevented or ameliorated by earlier appropriate intervention. In particular, Ms Docker maintains that she has been negligently deprived of the chance of a better outcome by the hospital’s failure to recognise the gravity of her presentation in that she was dysphasic as opposed to confused and the failure to undertake a full neurological examination upon or shortly following her admission.

2. As the result of what occurred, Ms Docker sustained injuries that include ongoing severe right-sided hemiplegia, an inability to communicate verbally and an inability to mobilise independently. She currently resides in a nursing home and requires full-time care. It is as a consequence of these problems that she sues by her tutor.

3. The parties have reached agreement for the settlement of the proceedings, subject to approval. The application for approval is supported by an affidavit from Kent Docker sworn on 9 October 2020 and Susan Jane Newman sworn 6 October 2020. The latter affidavit exhibits a large number of medical reports to the contents of which I have had regard. It is sufficient to observe that there is a contest with respect to the issue of whether Ms Docker’s medical outcome would have been different if an alternative course of treatment had been implemented, in short, because by the time she presented to the hospital with the symptoms of stroke she had passed the point when any better outcome could have been achieved.

4. Ms Docker is now 53 years old. There are issues with respect to the cost of care and Ms Docker’s estimated life expectancy. Her current situation is as follows.

5. Since her discharge from hospital, Ms Docker has required 24 hour per day nursing care. She has required 12 hospital admissions since then for episodes of pneumonia, urinary tract infections, cervical epidural abscess ad pressure sores. Ms Docker rarely leaves the nursing home apart from the occasional outing with her brother. However, these are difficult as she is completely incontinent. She is fully dependent on others for feeding and requires two staff members to assist with transfers to and from bed. She needs to be strapped into her chair. Ms Docker has an electric wheelchair which she can drive but poor judgment and cognition mean that this activity needs constant close supervision.

6. Ms Docker suffers from cognitive deficits and can only comprehend one step commands. Her short term memory is poor. She is frequently agitated and requires placating. She suffers from depression and generalised body pain. She is at risk of recurrent infections. Her diabetic condition leaves Ms Docker vulnerable to a heightened risk of cardio vascular disease, stroke, visual impairment and renal failure.

7. The proposed settlement sum of $1.5 million plus costs represents a compromise on the basis of the litigious risks. It represents a compromise of 30 percent with no allowance for economic loss. The settlement is recommended by senior counsel for Ms Docker, with whose memorandum of advice on settlement dated 9 October 2020 I have been provided.

8. From the proposed settlement sum, deductions of $134,000 for Centrelink, $30,517 for Medicare, and $232,232 for the National Disability Insurance Scheme have to be made. I have been informed that solicitor and client costs which the tutor proposes to ask the trustee to pay will not exceed $100,000. I have relied upon that estimate in coming to my view of the proposed settlement.

9. Ms Docker will remain entitled to support from the NDIS at the rate of approximately $140,000 per annum. From that sum, the NDIS will be entitled to recover a Compensation Reduction Amount in the sum of $353,708 incrementally applied to Ms Docker’s NDIS plan over her lifetime until reduced to nil, on the assumption that Ms Docker continues to participate in the Scheme.

10. Although the amount of the settlement is not generous, it seems to me to be in the best interests of Ms Docker. That is because there are in my view significant risks associated with the contention that Ms Docker could have been treated at any stage from and following her presentation to the hospital in a way that would have resulted in any better or different outcome. It is unnecessary for me to elaborate upon that view.

11. Accordingly, I 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 13 October 2020 and signed by the legal representatives of the parties.

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

3. I make orders in accordance with paragraphs 1 to 6 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 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 made pursuant to s 77(3) of the Act otherwise direct.

**********

Decision last updated: 15 December 2021