Huang v Coroners Court of Victoria
[2021] VSC 704
•27 October 2021 (written reasons 3 November 2021)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 03592
| HILDA HUANG | Appellant |
| v | |
| THE CORONER’S COURT OF VICTORIA | Respondent |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2021 |
DATE OF JUDGMENT: | 27 October 2021 (written reasons 3 November 2021) |
CASE MAY BE CITED AS: | Huang v Coroners Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2021] VSC 704 |
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JUDICIAL REVEW AND APPEALS — Coronial determination — Application for leave to appeal to Supreme Court — Appeal on question of law from Coroner’s determination that death not reportable death — No error of law identified in respect of determination — Appeal dismissed — Coroners Act 2008 ss 4, 16, 78, 86–7.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr W Gillies, of counsel (Victorian Bar pro bono scheme) | |
| For the Respondent | Ms I Giles, Coroners Court of Victoria |
HIS HONOUR:
Martin Huang died on 5 July 2021, aged 59 years. He had been discharged from Casey Hospital approximately three weeks earlier after undergoing a relatively minor procedure. A week later he became unwell and, after 10 days of worsening health, passed away at the Monash Medical Centre.
On 20 July 2021 the Coroner, Mr McGregor, determined that Mr Huang’s death was not a reportable death. It is apparent that the Coroner concluded that Mr Huang’s death had no relationship to his treatment at Casey Hospital and therefore fell outside the terms of s 4(2)(b) of the Coroners Act 2008 (the ‘Act’).
Mr Huang’s wife, Hilda Huang, now seeks to appeal that decision. Mrs Huang is out of time for bringing the appeal and must show that there are exceptional circumstances to continue with the appeal.
Although the grounds of appeal are couched as merits review it was common ground that Mrs Huang’s case is that it was not open on the evidence to conclude that Mr Huang’s death was reportable.
Factual Background
Mr Huang was born on 29 August 1951 in Taiwan and was a pensioner at the time of his death. He previously worked as a timber importer. He had type 2 diabetes mellitus but otherwise had no health complaints.
On 18 June 2021, Mr Huang underwent an inguinal hernia repair operation at Casey Hospital. The operation was uncomplicated, and he was discharged from Casey Hospital on 19 June 2021.
On 25 June 2021, Mr Huang attended his GP, Dr Silva of Wheelers Hill Clinic, for a one-week post-operative appointment. Dr Silva considered he was progressing well. Dr Silva reported that he was ‘alert, well, afebrile’. He gave Mr Huang a flu vaccination.
On 27 June 2021, Mr Huang attended the Brandon Park Medical Centre and saw Dr Mohammed Kamrul Islam, who diagnosed a chest infection and prescribed antibiotics — Amoxicillin (500mg) and Doxylin (100mg). Dr Islam referred Mr Huang to Monash Medical Centre emergency department. It is unclear from the medical records as to whether or not he attended.
On 29 June 2021, Mr Huang presented to the Wheelers Hill Clinic with flu-like symptoms, including an intermittent fever, minor runny nose and some double vision. He reported to Dr Court that the symptoms had first started one week prior to his attendance. Mr Huang was given a letter of referral for the emergency department.
On 1 July 2021, Mr Huang attended the Brandon Park Medical Centre and was advised by Dr Soliman to go to hospital because of suspected COVID-19 symptoms.
Between 1 and 4 July 2021, Mr Huang called for an ambulance on two occasions. On each occasion he was told an ambulance could not attend because of his suspected COVID-19 symptoms.
At 11:00 pm on 4 July 2021, Mrs Huang called an ambulance as Mr Huang could not breathe and his body was blue and shaking. Mr Huang was taken to Monash Medical Centre by ambulance and admitted to the ICU with septic shock and multiorgan failure. A CT scan showed multilobar pneumonia, a 10-centimetre liver abscess and multiple septic emboli.
On 5 July 2021, Mr Huang underwent drainage of the liver abscess. He continued to deteriorate and died later that day.
A ‘Medical Certificate Cause of Death’ certificate (the ‘death certificate’) was completed by Dr Barr of Monash Medical Centre on that day. It read:
Is this death a reportable or reviewable death in accordance with the Coroners Act 2008?: No
Disease or condition directly leading to death: 1 Septic shock with multi-organ failure
Duration between onset and death of disease or condition: 12 Hours.
Three ‘other significant conditions’ were listed:
Other Significant Condition contributing to the death: 1 Liver abscess
Other Significant Condition contributing to the death: 2 Bilateral non-occlusive pulmonary embolism
Other Significant Condition contributing to the death: 3 Type 2 Diabetes Mellitus 1 Year.
Investigations and Determination by the Coroner
A number of medical records of the treating medical clinicians and hospitals were obtained by the Coroner’s Office:
(a) The death certificate;
(b) Wheelers Hill Clinic records;
(c) Monash Health medical records (including the records from Casey Hospital); and
(d) Ambulance Victoria Report.
The Coroner then sought a review of those records by a forensic pathologist, Dr Victoria Francis of the Victorian Institute of Forensic Medicine (‘VIFM’), to determine whether the death was reportable.
Dr Francis reviewed the material set out above at [15] relevant to Mr Huang’s death, as well as email correspondence between Classic Funeral Services on behalf of Mrs Huang, Mrs Huang and the Coronial Admissions and Enquiries Office, and provided a preliminary examination report dated 20 July 2021.
Dr Francis considered that the temporal relationship between the development of Mr Huang’s respiratory symptoms and his surgery was unclear due to ‘some inconsistencies in the history as to when the symptoms began’. She noted a CT scan from the records of Monash Medical Centre showed ‘multilobar pneumonia, 10cm liver abscess (frank pus — grew Klebsiella, like blood culture) and multiple septic emboli’. She opined that the development of pneumonia and subsequent septicaemia and septic abscesses did not appear to be a direct complication of the surgery. She reported:
[I]t appears he did have symptoms, including some concerning symptoms, for some weeks before his prior presentation and were referred to ED by his GP on 29/6 (but I cannot find a presentation to ED until 04/07).
Dr Francis concluded that the terms of the death certificate were reasonable. She could not identify any grounds on which to deem Mr Huang’s death reportable, noting ‘(not surgical complication, not unexpected etc)’.
In a subsequent email to the Coroner on 20 July 2021 Dr Francis commented that Mr Huang was suffering from symptoms of a respiratory tract infection for a few days prior to his final presentation to hospital and that Klebsiella pneumoniae bacteria was associated with pneumonia and liver abscesses.[1]
[1]Exhibit IMPG-10.
Subsequently, on 20 July 2021, Dr Melanie Archer, also a pathologist of the VIFM, advised the Coroner by email that she also agreed that the death was ‘not reportable’ and confirmed the adequacy of the existing death certificate. [2]
[2]Ibid.
Dr Archer added that it was of note that primary liver abscesses due to Klebsiella pneumoniae are a known syndrome seen first in people of Asian origin from several different countries.[3]
[3]Ibid.
On 20 July 2021, the Coroner determined the death was not a reportable death under s 16(1) of the Act because the death was not a reportable death as described in s 4 of the Act. The Coroner discontinued the investigation under s 16(3) of the Act.
The determination states:
‘Having investigated the death, I determine that the death is not reportable under section 16(1) of the Coroners Act 2008 (the Act) because the death is not a reportable death described in section 4 of the Act, for the following reasons –
(a)I asked forensic pathologists Dr Victoria Francis and Dr Melanie Archer to review the Medical Certificate Cause of Death and all the accompanying records along with the email from Angie Hooper of Classic Funeral Services, on behalf of the NOK Hilda Huang…;
(b)[They] have jointly advised me that the email does not raise any new issues they need to consider, and that the available records confirm the adequacy of the existing Medical Certificate Cause of Death.’
Relevant provisions of the Act
Reportable death
Section 1 sets out the purposes of the Act, which are:
(a) to require the reporting of certain deaths; and
(b)to provide for coroners to investigate deaths and fires in specified circumstances; and
(c)to contribute to the reduction of the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations, by coroners; and
(d)to establish the Coroners Court of Victoria as a specialist inquisitorial court; and
(e) to establish the Coronial Council of Victoria; and
(f) to amend the Coroners Act 1985—
(i) to repeal the provisions relating to coroners; and
(ii) to rename that Act as the Victorian Institute of Forensic Medicine Act 1985; and
(g) to make consequential amendments to other Acts.
In relation to a ‘reportable death’ s 4 provides:
(1) In this Act, a death of a person is a reportable death if —
(a) the body is in Victoria; or
(b) the death occurred in Victoria; or
(c) the cause of the death occurred in Victoria; or
(d) the person ordinarily resided in Victoria at the time of death—
and the death was a death specified in sub-s (2).[4]
[4]Emphasis in original.
Subsection (2) reads:
For the purposes of subsection (1), the deaths are —
…
(b) a death that occurs—
(i) during a medical procedure; or
(ii)following a medical procedure where the death is or may be causally related to the medical procedure—
and a registered medical practitioner would not, immediately before the procedure was undertaken, have reasonably expected the death.
Section 8 provides the factors to be considered for the purposes of the Act:
When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following—
(a)that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;
(b)that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
(c)that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;
(d)that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
(e)that there is a need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information;
(f)the desirability of promoting public health and safety and the administration of justice.
Where a coroner is satisfied that the death is reportable then a coroner must investigate the death. [5]
[5]Act s 15(b).
Section 16 deals with determinations by the Coroner that a reported death is not a reportable death:
(1)A coroner may determine that a death that was reported to the coroner as a reportable death is not a reportable death.
(1A)Without limiting subsection (1), a coroner may determine that a death described in section 4(2)(h) or (i) is not a reportable death if satisfied the death is not a death described in section 4(2)(a), (b), (c), (d), (e), (f), (g) or (j).
Appeals to the Supreme Court
Section 78 deals specifically with appeals concerning a determination that a death is not a reportable death:
(1)If a coroner determines under section 16(1) or (1A) that a death is not a reportable death, the person who reported the death may appeal against the coroner’s determination to the Trial Division of the Supreme Court constituted by a single judge.
(2)Subject to section 86, an appeal under this section must be made within 28 days after the day on which the determination of the coroner is made.
Section 86 provides that this Court may grant leave to appeal out of time under s 78, (amongst other provisions) if the Court:
(a)is of the opinion that the failure to institute the appeal within the specific period was due to exceptional circumstances; and
(b) is satisfied that granting the leave is desirable in the interests of justice.
Sections 87 and 87A then deal with the nature of an appeal to this Court. Section 87 reads as follows:
(1)Subject to section 87A, an appeal to the Supreme Court under this Part is an appeal on a question of law.
(1A)An appeal on a question of law includes an appeal on the grounds that the finding which is appealed is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the finding.
(2)Subject to this Part, an appeal under this Part must be brought in accordance with the rules of the Supreme Court.
(3)The Supreme Court may make an order staying the operation of a determination that is the subject of an appeal under this Part.
(4)Subject to section 88, after hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the matter for re‑hearing to the Coroners Court with or without any direction in law.
(5)An order made by the Supreme Court on an appeal under this Part, other than an order remitting the matter for re-hearing to the Coroners Court, may be enforced as an order of the Supreme Court.
Section 87A came into force on 1 January 2015 and reads as follows:
(1)An appeal to the Supreme Court other than on a question of law may be made under section 82(1) in respect of a decision by a coroner to not hold an inquest into a death, or section 84(1) in respect of a refusal by the Coroners Court to re-open an investigation into a death, if the appeal is made by—
(a) the senior next of kin of the deceased; or
(b) a person with sufficient interest.
(2)The Supreme Court may allow an appeal under subsection (1) if it is satisfied that it is necessary or desirable in the interests of justice to do so.
Grounds of appeal and submissions of Mrs Huang
By Notice of Appeal dated 29 September 2021, Mrs Huang appealed the decision of the Coroner alleging that he:
(a) erred in fact and in law in determining the death of Mr Huang was not a reportable death under s 16(1) of the Act;
(b) was in error in determining that, pursuant to s 16(1) of the Act, Mr Huang’s death reported as a reportable death was not a reportable death on the facts before him; and
(c) erred in determining that the death was not a reportable death as it was, in fact, a death described in s 4(2)(b) of the Act.
Ms Huang seeks the following orders:
(a) the Coroner’s determination of 20 July 2021 be set aside and the Coroner be directed to conduct an inquest into the death of Martin Huang;
(b) the Court grant leave to appeal out of time on the basis that failure to commence the appeal within the specified time was due to exceptional circumstances and the granting of leave is in the interests of justice; and
(c) such further or other order as this Court deems fit.
Mrs Huang also seeks leave to appeal out of time. As Mrs Huang’s Notice of Appeal was filed on 29 September 2021 she is roughly one month and 12 days out of time.
Should leave to appeal out of time be granted?
Mrs Huang swore an affidavit setting out ‘exceptional circumstances’ that justify the granting of leave and that such leave is ‘desirable in the interests of justice’ pursuant to s 86 of the Act.
Mrs Huang deposes that her appeal was not filed within 28 days due to lack of representation, technological difficulties and the imposition of the COVID-19 lockdown. She sought the assistance of a friend, the Supreme Court Self-Represented Coordinator and counsel.
She details a series of problems associated with:[6]
[6]Affidavit of Hilda Huang sworn 28 October 2021.
(a) communicating and meeting with counsel;
(b) attending the Court;
(c) communicating with the Supreme Court Self-Represented Coordinator;
(d) coping with the technological requirements necessary to file documents with the Court;
(e) complying with Court and statutory requirements; and
(f) delivering documents to the Court and counsel.
It is patent that a combination of the COVID-19 lockdown and technological issues make it particularly difficult for an unrepresented litigant to comply with the rules of the Court and the provisions of the Act. It is also clear that Mrs Huang has, since the decision of the Coroner, intended to challenge that decision.
I accept as submitted by Mrs Huang that this is not a case of exceptional delay such as in Coulston v State Coroner of Victoria[7] and Somerville v Coroners Court of Victoria.[8]
[7][2018] VSC 103.
[8][2016] VSC 543.
I am satisfied that exceptional circumstances exist and that it is appropriate for Mrs Huang to have leave to bring the appeal.
Did the Coroner make an error of law in not treating the death as reportable?
In her written submissions Mrs Huang contends the death is reportable as it was following a medical procedure where the death is or may be causally related to the medical procedure and a registered medical practitioner would not, immediately before the procedure was undertaken, have reasonably expected the death (s 4(2)(b)).
Mrs Huang contends that the conclusions reached by the Coroner were ‘unreasonable’ and ‘against the weight of the evidence’ in that ‘no logical decision maker could have reached the same conclusion’. She submits the Coroner’s determination lacked an ‘evident and intelligible justification’.
It is said by Mrs Huang that the Coroner arrived at a finding that was not open to him: although Klebsiella was said to be the organism responsible for her husband’s death, there is only one mention in the medical records of a pathology test which finds Klebsiella species in the blood culture, and without more it cannot be said that Klebsiella was responsible.
Mrs Huang refers to particular extracts from the Monash Health medical records:
(a) pathology records dated 4 July 2021 and 5 July 2021 which report Klebsiella species in the culture and features suggestive of inflammation/infection respectively;
(b) admission records that include Mr Huang’s past medical history and diagnosis by the admitting consultant as shock of unknown cause;
(c) a record by hospital medical officer Jacinta Lopez that notes that hepatic lesion in the right lobe of liver with a possibility of multi-focal splenic abscesses or infarcts in the right inguinal canal may reflect post-surgical changes;
(d) Multi-Disciplinary Team documentation that Mr Huang was critically unwell with septic shock and multi-organ failure and that he had blood clots in his lungs requiring life support, citing death as a probable outcome and an infection in his blood stream that did not respond to treatment;
(e) Casey Hospital medical records that note Mr Huang underwent elective planned surgery, which was successful and uncomplicated; and
(f) Wheelers Hill Clinic records that include pathology test results dated 5 July 2021 suggesting infection/inflammation.
In discussion with counsel for the appellant, he accepted that, notwithstanding the grounds of appeal (which essentially seek a factual review of the Coroner’s decision) it was necessary for the appellant to establish that it was ‘not open to the Coroner to find that the death was due to a Klebsiella infection’.
In Maund v Racing Victoria Ltd[9] the Court of Appeal stated:
In order to establish an error of law under ground 5, it was not sufficient for the applicant to contend that specific findings by the Tribunal were against the evidence and the weight of the evidence. Rather, the question for the court, in a such a case, is whether there was evidence upon which the Tribunal might, rationally, reach the conclusion to which it came.[10]
[9][2016] VSCA 132.
[10]Ibid [68] (Maxwell P, Ashley and Kaye JJA) (citations omitted).
Citing the above passage, Ginanne J in Bruinink v Coroners Court of Victoria[11], in considering whether a coroner correctly concluded that a death was not reportable, said:
In my opinion, it was open to the Coroner to decide on the basis of Dr Archer’s report that the death of Mr Horvath was not an unexpected death. The Coroner does not make an error of law if there was some evidence or some probative information supporting his decision.[12]
[11][2021] VSC 159.
[12]Ibid [25].
I respectfully agree with this statement of principle. Indeed, I think it uncontroversial.
The thrust of Mrs Huang's submissions (both oral and written) is that there is no evidence to support the conclusion that her husband, Mr Huang, died as a result of a Klebsiella pneumoniae infection.
That, with respect, was not the legal obligation of the Coroner. His task under s4(2)(b) of the Act was to determine whether Mr Huang's death was reportable under the Act. To put it another way, the Coroner’s task was to determine whether the death did have, or may have had, a causal connection with the inguinal hernia repair performed over two weeks earlier at the Casey Hospital.
In fulfilling his obligation under the Act the Coroner considered the opinions of three medical experts, Dr Barr, Dr Francis and Dr Archer. Dr Francis and Dr Archer are both specialist pathologists. Dr Francis and Dr Archer opined that the cause of death was due to a Klebsiella infection. Dr Barr considered that the direct cause was septic shock with several other contributing factors including a liver abscess.
What is significant is that no medical expert expressed the view that the death was or may have been related to the surgery and therefore reportable. Whether their conclusions are reconcilable may be uncertain. But what is clear is that each regarded Mr Huang' s death as not reportable.
What is also significant is that no other expert expressed a contrary opinion, that is, to the effect that the death was reportable as provided for by the Act. Indeed, even if such an opinion existed, it would not have been determinative. It was a matter for the Coroner to determine, on all the evidence, whether the cause of death fell within the terms of the Act so as to be ‘reportable’.
As long as the relevant material was considered by the Coroner, then the decision cannot be impugned.
It is true, as counsel for Mrs Huang submits in his helpful and cogent submissions, that the presence of Klebsiella pneumoniae was only apparent in pathology specimens taken in the last hours of Mr Huang’s life. But, with respect, that leads nowhere. Neither of the specialists appear to regard that factor, namely, its late appearance, as being significant. More importantly none regarded it as being contrary to the conclusion they each expressed, namely, that the death was not reportable.
Ultimately, it boils down to this: all the medical opinions considered by the Coroner supported the decision he reached in concluding that the death was not reportable.
In my opinion no error of law has been shown by the appellant.
I should add that it is understandable that Mrs Huang is dissatisfied with, or at least querying, the decision of the Coroner to treat her husband’s death as not reportable. The temporal connection between the surgery and Mr Huang’s deterioration and demise, in itself, at least creates the suspicion that there might be some link. However the critical factor in this case, as I have just explained, is that of the expert opinions considered by the Coroner, and, in my opinion, correctly acted upon by him.
The appeal will be dismissed.
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