Downing v Wein
[2005] VSC 134
•17 February 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 4637 of 2003`
| MARTIN DOWNING (by his litigation guardian Jake Downing) | Plaintiff |
| v | |
| REUBEN WEIN AND ANOR | Defendant |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 February 2005 | |
DATE OF JUDGMENT: | 17 February 2005 | |
CASE MAY BE CITED AS: | Downing v Wein | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 134 | |
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APPLICATIO TO STAY PROCEEDINGS - Order 33.04 Supreme Court Rules – Reasonable terms.
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APPEARANCES: | Counsel |
| For the Plaintiff | Ms M.A. Hartley |
| For the Defendant | Mr D. Brookes |
HIS HONOUR:
This is an application by summons by the defendants for orders pursuant to O.33.04 of the Rules of the Supreme Court that the proceeding be stayed due to the plaintiff refusing without reasonable cause to undergo a magnetic resonance imaging ("MRI") scan at the Royal Children's Hospital and for further orders.
In the proceeding the infant plaintiff claims damages arising out of his birth at the hospital conducted by the second defendant on 27 July 1994. The first defendant was the gynaecologist who had hitherto attended to the mother of the plaintiff. It is alleged in the proceeding that the first defendant was negligent in his treatment of the plaintiff's mother and, in particular, in inserting an inter-uterine device when he had failed to terminate the pregnancy which later produced the plaintiff. Against the second defendant it is alleged that the plaintiff's mother was admitted to hospital suffering from inter-uterine infection one week before the birth, and that the second defendant failed to deliver the plaintiff earlier. As a result, the plaintiff claims to have sustained brain damage.
As I understand it, it is accepted, as it seems, properly so on the material before me, that the plaintiff does suffer from brain damage and a key issue in the case will be that of causation.
The defendants have requested that the plaintiff undergo an MRI scan as none has as yet been carried out on him, in order to assist on the issue of causation.
Order 33.04(1) provides that the defendant may request the plaintiff in writing to submit to appropriate examination by a medical expert or experts at specified times and places. Order 33.04(2) provides that where a plaintiff refuses or neglects without reasonable cause to comply with a request under sub-r.(1), the court may, if the request is on reasonable terms, stay the proceeding.
The critical issue is whether the request was made on reasonable terms and whether the refusal by the plaintiff, through his litigation guardian, to undergo the MRI scan is without reasonable cause.
I am satisfied on the evidence that the scan is sought for legitimate purposes relating to a central issue in a litigation, namely, causation. The e-mail of Dr McPhee dated 10 November 2004 and the report of Dr Smith dated 25 October 2004 each make that evident. Indeed, Ms Hartley, who appeared on behalf of the plaintiff, did not argue to the contrary. The critical issue therefore is whether in the circumstances the plaintiff is acting reasonably in refusing to undergo the MRI scan.
There is no doubt that an MRI scan is more intrusive than, for example, an x-ray. A clear description of the processes involved in an MRI scan which would be required of the ten-year-old plaintiff is contained in the report of Dr Ditchfield dated 24 December 2004. The issue for me is whether the scan would involve risks to the health and welfare of the plaintiff which would justify the plaintiff properly refusing to undergo the scan.
The plaintiff's solicitor (who is a solicitor very experienced in this form of litigation) has sworn an affidavit. The main concern expressed by the solicitor relates to a suggestion in the materials that in particular circumstances contrast dye might be injected into the plaintiff for the purposes of assisting the detection of his condition by way of the MRI scan. Although the material proffered by Mr Schaeffer relating to those risks is simply information from the Internet, I am prepared to accept it and have indeed done so.
While the material filed on behalf of the defendants does suggest that it is unlikely that dye will be used, the material does not entirely rule out the use of dye. As I have made clear in argument, if I were to uphold the defendants' claim for relief on the summons, I would do so in terms of an order which excluded an MRI which involved injection of contrast dye. In other words, I do consider that it would be reasonable in the circumstances for the plaintiff to refuse to undergo an MRI scan if it involved injection of contrast dye.
The other main risk relied on by Ms Hartley is connected with concerns in relation to an emotional response which the plaintiff may suffer to undergoing the MRI scan. As described by Dr Ditchfield, the plaintiff will be, for a period of 25 minutes, enclosed in what might be described as an open cylinder and subjected to a fair degree of noise. Dr Ditchfield's report does contain a reference to the fact that, understandably, some persons to whom an MRI scan is administered can have a claustrophobic response. In a second report produced by Dr Ditchfield and dated today's date, Dr Ditchfield states that the MRI would be abandoned if the child becomes claustrophobic. There is, of course, a concern as to how such claustrophobic response might evidence itself in the plaintiff and how it might be detected by those administering the MRI. The plaintiff has not himself proffered any material from any of his treating doctors to the effect that he is more prone to claustrophobia as a result of his condition than anyone else, or that, if he did suffer a response to being enclosed in a space such as an MRI, he might suffer or be susceptible to suffering any particular injury.
Dr Smith, who has examined the plaintiff on behalf of the defendant in order to assess whether the plaintiff can suitably undergo an MRI scan, has expressed the view that the plaintiff will have no difficulty coping with a 45-minute MRI of the brain. (The later report of Dr Ditchfield indicates that the duration of the MRI is more likely to be about 25 minutes.) More importantly, there was tendered in evidence before me a report of Dr Lionel Lubitz, a consultant paediatrician at the Royal Children's Hospital. It appears that Dr Lubitz has had some responsibility for treating and caring for the plaintiff, as the plaintiff was referred to him by his own general practitioner. Dr Lubitz states that if the plaintiff is able to have the MRI without an anaesthetic, as deemed by the paediatric neurologist who examined him, he believes that there are no significant risks in obtaining an MRI brain scan for him. The paediatric neurologist has indicated that the plaintiff, on his assessment, can undergo the scan without an anaesthetic.
It is not easy to make a decision in a case such as this. On the one hand I do have the interests of the plaintiff, which are, of course, of great importance; in particular his health is a matter of great concern. On the other hand, the defendant legitimately seeks to have the investigation undertaken in order that he be better informed on an issue which is at the heart of the litigation.
In light of the matters which I have discussed in this ruling, there is no evidence that the plaintiff is likely to suffer or is at any real risk of suffering injury as a result of the MRI, provided it can be administered, firstly, without a general anaesthetic and, secondly, without the use of contrast dye. Therefore, in terms of O.33.04, I would rule that unless the plaintiff were to undergo, within a reasonable time, an MRI, such MRI not to involve either the administration of general anaesthetic or contrast dye, this action be stayed.
Ms Hartley raised with me the circumstance that there may be a concern on behalf of the litigation guardian as to the administration of an MRI at the Royal Children's Hospital because of its corporate connection with the defendant. I do note that the plaintiff has in any event been treated at the Children's Hospital. There is no affidavit material indicating that the litigation guardian has any such concern. In the absence of any such affidavit material, while the matter has been properly raised by Ms Hartley, I do not consider that it needs to be catered for in any order which I would make.
Thus, based on those matters I do, as I have said, rule and will make an appropriate order which perhaps can be more conveniently drafted by counsel, that, unless the plaintiff within a reasonable time undergoes an MRI scan at the Royal Children's Hospital, such MRI scan not to include, firstly, the administration of a general anaesthetic and, secondly, the administration of contrast dye, this proceeding will be stayed.
That leaves the terms of the order. Do I need to provide for a particular time? I have really made a sort of self-executing stay rather than staying the action forthwith. Should I stay it unless and until the plaintiff undergoes that MRI scan?
I will order that the costs of the application be costs in the cause. I will order liberty to apply.
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