Ferris v Royal Women's Hospital (Ruling No 2)
[2013] VCC 1778
•20 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
MEDICAL DIVISION
Case No. CI-09-05956
| JOYS FERRIS | Plaintiff |
| v | |
| THE ROYAL WOMEN’S HOSPITAL | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30, 31 October and 1,6, 7, 8, 11, 12, 13, 14, 15, 18, 19 and 20 November 2013 | |
DATE OF RULING: | 20 November 2013 | |
CASE MAY BE CITED AS: | Ferris v Royal Women’s Hospital (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1778 | |
RULING
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Subject: MEDICAL NEGLIGENCE
Catchwords: Claim by plaintiff against defendant hospital for failing to diagnose breast abscess by ultrasound – application to discharge jury as a result of a question from the jury – whether issues underlying question may be corrected by judge’s direction
Legislation Cited: County Court Civil Procedure Rules 2008, order 47.02(3)
Cases Cited:Smout v Smout [1989] VR 845; Rees v Bailey Aluminium Products Pty Ltd & Anor [2008] VSCA 244; Croll v McRea (1930) 30 SR (NSW) 137
Ruling: Application to discharge jury refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Halley | Arnold Thomas Becker |
| For the Defendant | Ms M A Hartley SC with Ms P Riddell | DLA Phillips Fox |
HIS HONOUR:
1 This proceeding, before judge and jury, concerns an allegation by the plaintiff that the defendant hospital, at presentation on 1 January 2007 and then over the course of the plaintiff’s inpatient stay on that day and 2 January 2007, failed to undertake an ultrasound which would have diagnosed an abscess to her left breast. The plaintiff claims that had such an investigation been undertaken, an abscess would have been diagnosed, and an aspiration under ultrasound guidance undertaken. Had that occurred, the likelihood would have been that the plaintiff would not have had to undergo significant debridement surgery at The Royal Melbourne Hospital (“RMH”) subsequently. The plaintiff claims compensation for that debridement surgery, subsequent reconstructive surgery, and a range of consequences, both physical and psychological said to have resulted.
2 Over a period in excess of two weeks, the evidence proceeded and Ms Hartley addressed the jury in closing submissions. In the course of Mr Halley’s closing submissions, the jury presented a handwritten question as follows:
“Evidence has been given that an abscess is a collection of pus, or put more simply ‘is pus’. How is that definition fulfilled? According to the description of the aspirate obtained, as quoted by Mr Halley from the RMH records, that the aspirate obtained consisting of a milky serous blood stain aspirate, and not puss? Is the definition of abscess not fulfilled by the material aspirated?” (sic)
3 Some background information needs to be given in order to give the question context.
4 The basis of the plaintiff’s case is that an abscess which was present in the left breast was not detected at the Royal Women’s Hospital (“RWH”) over the 1 and 2 January 2007. In the early hours of the morning of 3 January, the plaintiff was transferred from the RWH to the RMH. Some time shortly thereafter, an ultrasound was undertaken and it is clear from the result of that investigation that a large abscess was detected. Some time after that, the abscess was aspirated under radiological guidance and some further time later, significant debridement surgery to the plaintiff’s left breast was undertaken.
5 Expert evidence was given in the trial by a number of medical practitioners, including Professor Marshall (surgeon), Dr Hudson (infectious diseases specialist), Dr White (obstetrician and gynaecologist) and Professor Wallace (obstetrician and gynaecologist). Each of those practitioners was provided with the clinical notes of the RWH and the RMH. It is clear from the evidence of all those practitioners that they correctly assumed an abscess, described as very substantial, was identified at the RMH. The defendant’s Defence did not dispute the issue. After the question was raised by the jury, and Mr Halley applied to discharge the jury, Ms Hartley admitted, although there was some earlier prevarication, an abscess had been detected by ultrasound at the RMH.
6 It is apparent from the clinical records of the RMH, at the time of the aspiration of the abscess, there was a report of “blood stained milky fluid was obtained”.[1] In the course of examination-in-chief of the expert, Dr Bernadette White, she was asked about such a finding and whether that said anything about the appropriate diagnosis when the plaintiff left the RWH. She said it would be consistent with a diagnosis of mastitis. Mr Halley objected to any further questions on the grounds that this matter was not the subject of any part of Dr White’s report. The objection was upheld.[2]
[1]Transcript (“T”) 1102, L19
[2]T1103-T1104
7 The issue was again raised in the course of the cross-examination of Dr White.[3] I enquired of counsel whether there was any doubt that the plaintiff had a breast abscess.[4] Mr Halley responded:
“Not from the plaintiff’s point of view.”
[3]T1140, L15
[4]T1140, L24
8 At that point, Ms Hartley did not concede there was an abscess upon ultrasound at the RMH.[5] Dr White said whether the material contained in the abscess represented a collection of breast milk or an abscess, it would not have made a “big difference in terms of the underlying pathology and dealing with … what they were confronted with …”.[6]
[5]T1141
[6]T1142, L9
9 Evidence was later given by Professor Wallace to the effect that an abscess is not necessarily drained immediately but sometimes the drainage is delayed until there was a collection of material sufficiently liquid to enable drainage to be done effectively. He said that if the infective material is hard and solid, it does not drain well and there is the prospect of the need for further drainage.[7] In cross-examination, Professor Wallace was taken to an extract of the ultrasound performed at the RMH and agreed that the abscess found was “a big abscess”.[8] Further, the material contained within it had liquefied.
[7]T1205 – T1206
[8]T1208, L13
10 In re-examination, he was taken to the finding of bloodstained milky fluid from the aspiration at the RMH at 3.45pm on 3 January.[9] He said that if the bacteriology did not find “frank puss” then it suggested the process of liquification was at an earlier rather than a later stage.
[9]T1252, L12
11 At the conclusion of the evidence, Ms Hartley tendered an extract of the records from the RMH relating to the plaintiff.[10]
[10]T1267, L21
12 In Ms Hartley’s final address, she made reference to those clinical notes.[11] In the course of that part of the address, Ms Hartley took the jury to various references in those clinical notes to the findings made at the hospital, in particular in relation to the investigation and diagnosis of various medical conditions concerning the plaintiff’s kidneys, liver and gallbladder. Further, Ms Hartley said the following, in relation to the RMH notes:
“Perhaps better evidence about the actual timing of the drainage is found on the next page where you will see 1545, so after the drainage has been done, ‘patient tachycardic. Ultrasound doctor aware’ and then some or observations at that time so it is again consistent with her being in the radiology department at the Royal Melbourne Hospital at about a quarter to four in the afternoon, just after the drainage has occurred and of course the other observation on that document that is very important, it is a bit harder to read, but if you look at the very bad writing above where I have just been, it seems to suggest ‘under sterile technique, an ultrasound guidance’, the procedure is performed and then the next note you will have heard me cross-examine witness on ‘blood stained milky fluid’. Now you will recall again Professor Wallace saying today that observation is consistent with an abscess that is at an early rather than a later stage of evolution. … .”[12]
[11]T1274 – T1281
[12]T1277, L20
13 Before the conclusion of Ms Hartley’s address, I raised a concern about the use of the notes from the RMH,[13] in particular as to the use of the findings, symptoms, signs and opinions expressed in those notes without the author being called. In the end, I concluded that it was improper for the notes to be placed before the jury as an exhibit and used in the manner sought. I withdrew the notes from the jury, and directed them to disregard what the notes said although noted that there had been appropriate cross-examination on some aspects of the notes with several of the witnesses.[14]
[13]T1295, L3
[14]T1306 – T1307
14 In support of his application to discharge the jury, Mr Halley said that it was clear from the evidence of all the doctors that there was no issue that an abscess had been detected at the RMH. He said that a seed had planted in the minds of the jury arising out of the closing submissions of Ms Hartley, in combination with the provision of the RMH notes that in fact that the material aspirated at that hospital was not puss and therefore not an abscess. He said that the focus of the jury had altered to the point where it would be impossible to be assured that even a firm direction could alter that focus. He said one had to examine what lay behind the question, in particular that the attention of the jury had been distracted from the principal issue.
15 Ms Hartley, for the defendant, accepted that there was no issue that an abscess had been found at the RMH, and referred to the evidence, in particular of Dr White, that whether it was puss or some other liquid material, it would have made no difference to the plaintiff’s treatment. She said that even if the jury had been distracted, that distraction could be rectified by a firm direction, promptly given. She said the law regarded juries as robust, well able to accept and act upon the firm direction of a trial judge.
16 There is power in order 47.02(3) for the Court to direct a trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury. As was said by Ms Hartley, generally juries are regarded as robust, and well able to act upon a “clear, full and authoritative direction to the jury instanter”.[15] It is for the trial judge to assess the seriousness and likely effect of the issue upon which the application is made, and determine whether that issue can be cured by appropriate express direction.[16]
[15]Smout v Smout [1989] VR 845 at 851
[16]Rees v Bailey Aluminium Products Pty Ltd & Anor [2008] VSCA 244 at paragraph 122
17 The defendant sought trial by jury, and the discharge of a jury ought not readily be given unless the matter complained of cannot be cured by firm direction. However in Croll v McRea,[17] Street CJ said:
“The poison, once instilled into their minds, must inevitably work and who could possibly feel any confidence in a verdict in the plaintiff’s favour arrived at after so prejudicial a statement had been made. In such a case a warning and summing up to disregard it is only to revive their recollection of it, and to renew its damaging potency.”
[17](1930) 30 SR (NSW) 137 at 144
18 In the present case, there is no suggestion that there has been a particularly damaging and prejudicial comment.
19 I do have concerns about the reasoning of the jury such as to prompt the question asked. It appears the jury is considering whether or not the plaintiff in fact had an abscess after investigation at the RMH. The question is concerned with the definition of an abscess. Does the material aspirated from the abscess, be it puss or milky serous bloodstained material, determine whether the plaintiff in fact had an abscess? It is difficult to know what has prompted this jury question. It may have come from a number of sources, including from the evidence of Dr White referred to, or the evidence of Professor Wallace, or some aspect of the clinical notes which were in the jury’s possession for a short period of time, or counsel for the defendant’s closing address in relation to those notes.
20 The real issue is whether a firm statement to the jury that an abscess was detected at the RMH on 3 January 2007 and that they should disregard any finding in the notes of that hospital of any milky serous bloodstained fluid save to the extent that it may be of some relevance, in accordance with the evidence of Professor Wallace, in the evolution of the abscess. Further, upon the evidence of Dr White, whether there was puss or milky fluid found, the need for aspiration and other treatment would have remained the same.
21 In my view, counsel for the defendant ought clearly to have admitted the presence of the abscess when the question was put in the course of Dr White’s evidence.[18] I accept there is a risk to some extent, the jury’s attention has been distracted from the real issues. I need to be convinced, with a comfortable degree of confidence, that such a direction will have the intended effect. Put another way, is there a reasonable risk that the jury has been distracted to the point where a firm direction would not be reasonably capable of rectifying the situation?
[18]T1141 – T1142
22 I have concluded that I am satisfied to the requisite degree that an appropriate direction from me will ensure that the focus of the jury is directed away from this issue and towards the real issues in the trial. I propose to direct the jury in the following way:
·Firstly, to indicate there is no issue between the parties, and the jury may unequivocally accept that an abscess was detected upon ultrasound and aspiration at the RMH on 3 January 2007 and it is irrelevant on that issue whether puss or some other liquefied material was found.
·Secondly to emphasise to them to disregard completely whatever the RMH clinical notes said on the issue, save that it is accepted a large abscess was found on 3 January.
·Thirdly the issue of what was found in the aspirated material is relevant only as to one limited issue, that is whether it may indicate, in the evolutionary process of the abscess, if it was of an earlier or later stage. Save in that regard, they must disregard completely the relevance of the material aspirated.
·Remind them of the evidence of Dr White that regardless of what was found in the aspirated material, it would not have changed the management of the plaintiff at the RMH and in particular the need for debridement surgery.
23 I propose to give this direction to the jury instanter and to allow Mr Halley, for the plaintiff, the opportunity to refer to it in his address.
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