Jaiswal v Jamieson
[2022] ACTSC 278
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jaiswal v Jamieson |
Citation: | [2022] ACTSC 278 |
Hearing Date: | 20 September 2022 |
DecisionDate: | 11 October 2022 |
Before: | McWilliam AsJ |
Decision: | (1) On or before 22 November 2022, the defendant (claimant) is to provide further particulars in respect of each of the plaintiffs (the doctors) as follows: (a) The signs or symptoms relating to breast abnormalities reported by the claimant to each doctor and the dates when such symptoms were reported. (b) The steps (either investigations or diagnosis) that the claimant says each doctor should have undertaken or made. (c) The date/s on or by which it is claimed each doctor ought to have either: (i) diagnosed breast cancer, or (ii) taken steps that would have resulted in such a diagnosis. (d) The consequence (in terms of treatment, prognosis or other outcome) that the claimant alleges would have resulted had the said diagnosis or investigations been made or undertaken. (2) On or before 6 February 2023, the claimant is to provide a verified statement setting out the following: (a) When the claimant attended upon any of the doctors in relation to any condition or symptom pertaining to her breasts; (b) What treatment was provided, or investigations recommended; (c) Whether the claimant pursued the investigations recommended; and (d) What further advice the claimant was given having regard to the results of any such investigations. (3) Each party is to pay their own costs of the application. |
Catchwords: | PRACTICE AND PROCEDURE – APPLICATION – Application to compel an injured claimant to provide a Personal Injury Claim Notification and verified statement that complies with ss 51 and 64 of the Civil Law (Wrongs) Act 2002 (ACT) – whether the claim was adequately particularised – whether the doctors’ request for a verified statement of various information was reasonable. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 49-80 Civil Law (Wrongs) Regulation 2003 (ACT) r 4 Civil Law (Wrongs) Amendment Bill 2003 |
Cases Cited: | Ahuja v Chambeyron [2021] ACTSC 267 Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 Haug v Jupiters Ltd [2007] QSC 68 |
Parties: | Nikhil Jaiswal (First Plaintiff) John Greblo (Second Plaintiff) John Reeve (Third Plaintiff) Keischa Jamieson (Defendant) |
Representation: | Counsel W L Sharwood (First, Second, and Third Plaintiff) D Crowe (Defendant) |
| Solicitors Avant Law (First, Second, and Third Plaintiff) Chamberlains Law Firm (Defendant) | |
File Number: | SC 180 of 2022 |
McWilliam AsJ:
This application is made by three general practitioners (the doctors), who are responding to a “Personal Injury Claim Notification” served on each of them by Ms Jamieson, as required by the pre-court procedures set out in chapter 5 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act). The contents of the notices are in identical terms save for the name of the doctor to whom each was addressed.
The doctors complain that insufficient information has been provided to them to be able to properly understand the scope of Ms Jamieson’s claim or to form a view as to their potential liability. The present application seeks to compel further information to be provided by way of particulars and a statement from Ms Jamieson, information which the doctors claim they are entitled to receive under the Wrongs Act.
The genesis for Ms Jamieson’s claim
Ms Jamieson was diagnosed with a stage 3, HER2 positive invasive ductal breast cancer in January 2021 following a biopsy of the left breast. She was pregnant at the time, but the pregnancy was required to be terminated when the breast cancer was discovered, and she has since undergone a double mastectomy and been treated systemically with chemotherapy.
In the 18 or so months prior to Ms Jamieson’s diagnosis, she had consulted with each of the doctors complaining of various symptoms in relation to her breasts (such as pain, a lump, or blood). She was diagnosed with mastitis several times, as she was also breastfeeding. She was referred for an ultrasound at one point and was treated with antibiotics multiple times.
At the heart of Mr Jamieson’s claim is a failure to diagnose breast cancer earlier. The consequences or loss she claims has two limbs, the first being the loss of the chance of a better outcome and the second being the termination of the pregnancy, which has had psychological consequences for Ms Jamieson.
The application before the Court
The originating application was filed by the doctors on 8 June 2022 and invokes the Court’s power under s 78 of the Wrongs Act to remedy non-compliance, that being a failure to comply with the pre-court procedures under the Act.
The doctors seek the following particulars of the claim:
(i)The date/s on or by which they ought to have diagnosed breast cancer, or taken steps that would have resulted in such a diagnosis;
(ii)The signs or symptoms reported by Ms Jamieson to the doctors, which Ms Jamieson says should have caused the doctors to either diagnose breast cancer or undertake investigations which would have resulted in such a diagnosis; and
(iii)The difference, in either treatment or prognosis, that Ms Jamieson alleges would have resulted in a diagnosis of breast cancer at the earlier time she alleges a diagnosis could and should have been made.
The doctors also seek an order that Ms Jamieson provide a statement specifying:
(i)when she attended on any doctor in relation to any breast symptoms,
(ii)what treatment was provided, or investigations recommended,
(iii)whether Ms Jamieson carried out the investigations recommended, and
(iv)what further advice she was given having regard to the results of any investigations.
Issues and arguments on the application
The issue is whether Ms Jamieson has complied with the requirements of the statutory framework, which is considered below.
The Personal Injury Claim Notifications dated 28 January 2021 were completed by Ms Jamieson using the standard ACT Law Society form. The forms were completed promptly following Ms Jamieson’s initial diagnosis, which resulted from a breast biopsy performed on 5 January 2021. The notifications were served on the doctors on 17 May 2021. The following questions and answers were provided:
…
Question 10: What are your injuries from the accident?
Breast cancer resulting in recommendation to terminate pregnancy; Psychological Injury.
…
Question 14: What did the health service provider do or not do which caused the injury?
Failure to diagnose breast cancer.
…
In the legal correspondence exchanged between the parties, the doctors sought further information and particulars from Ms Jamieson, and a verified statement by her. Ms Jamieson responded through her solicitor on 20 April 2022, explaining her case as follows:
…
The [claimant’s] potential claim involves two parts: First, there is the issue of whether breast cancer ought to have been diagnosed prior to January 2021 and the consequences to the [claimant’s] health, from an oncology point of view, if it had been. Second, there is the fact that the [claimant] became pregnant in November 2020 and required a termination of that pregnancy in January 2021 when her breast cancer was discovered.
As to the first point, Dr Gorddard explains that diagnosis and treatment in or after July 2019 or April 2020 would probably have led to a better outcome from the point of view of the likelihood of [the claimant’s] survival. Her prognosis is now very poor, it would not have been had action been taken at either of those potential times.
According to the available records, the following doctors at the Phillip Medical and Dental Centre for whom you act were aware of her breast abnormalities (pain, lump, blood) on:
a.Dr Greblo (20 July 2019 and 29 November 2020);
b.Dr Johar (23 February 2020);
c.Dr Jaiswal (21 and 24 April 2020 and 3, 10, 11, 14 December 2020);
d.Dr Gupta (7 July 2020 and 17 December 2020); and
e.Dr Reeve (22 November 2020 and 9 December 2020).
A diagnosis of mastitis was made on 19 July 2019, but this was excluded by ultrasound when it was next postulated by Dr Jaiswal in April 2020. No further investigation was done even though the [claimant] reported, and the records recorded that she reported, a breast lump. A diagnosis of mastitis was again considered when breast abnormalities were reported [to] Dr Gupta on 7 July 2020, but this was never investigated, confirmed, or excluded (steps taken by Dr Jaiswal). In retrospect it is clear that the [claimant] had breast cancer at that time and, according to Dr Gorddard, probably back in July 2019.
Subsequent breast complaints were made and recorded in November and December 2020 although we anticipate it will be argued that diagnosis and treatment at that stage would not have been materially different to what happened in January 2021 when the breast cancer was discovered.
As to those later dates, these are relevant because the [claimant] said she was considering becoming pregnant and did in November 2020. But she would not have become pregnant had she known that she had, or might (through investigations of breast complaints then made) have had breast cancer. In January 2021 the [claimant] terminated her pregnancy. This sounds in damages even if ultimately the [claimant’s] claim for failure to diagnose and treat and therefore prevent the progression of breast cancer does not succeed.
…
Further, Ms Jamieson contended that the particulars are apparent from the expert reports that have been provided to the doctors. In a report dated 27 October 2021 from Dr Nicole Gorddard, a Senior Staff Specialist in Medical Oncology at Canberra Hospital and Clinical Senior Lecturer at the ANU Medical School, Dr Gorddard expresses the opinion that diagnosis and treatment in or after July 2019 or April 2020 would probably have led to an improved survival outcome and a better outcome long term prognosis.
In a report dated 25 July 2022 from Professor Frances Boyle AM, a medical oncologist located in North Sydney, the opinion expressed is essentially that more ought to have been done to investigate the breast abnormalities from at least April 2020. A mammogram should have been performed along with biopsy of calcified ductal lesions if present. It is referred to as the “Triple test” recommended by Cancer Australia for persisting breast symptoms. Had that been done, Professor Boyle considers it likely that the breast cancer would have been diagnosed at that time.
Ms Jamieson submitted that she has complied with the statutory procedures and the aims of the legislation, in that the information provided discloses that:
(i)The “injury” is breast cancer.
(ii)The omission was the failure to properly treat complaints of breast abnormality made on particular dates.
(iii)Proper investigation of those complaints should have included investigation beyond ultrasound, and include mammography and/or fine needle aspiration and/or referral to a breast specialist.
(iv)Earlier investigation would have led to earlier diagnosis of breast cancer.
(v)Treatment would have been less intense had the cancer been diagnosed earlier.
(vi)Further, Ms Jamieson would not have become pregnant in around October/November 2020 and needed to terminate that pregnancy in January 2021 on account of the cancer treatment.
The doctors contend that what has been disclosed to date is still inadequate. Their position is that neither the Personal Injury Claim Notification form nor the information and reports subsequently provided identify with sufficient detail what each doctor did or did not do to cause Ms Jamieson’s injury. It is not enough to assert a failure to diagnose breast cancer by at least January 2021 when there are three doctors who saw Ms Jamieson at different times. They need to know the information they have requested in order to properly investigate and assess the claim made against each of them.
In terms of the statement requested from the claimant, the doctors have asked for the following:
Please provide a statement by [Ms Jamieson] specifying when she attended on any doctor, whether at the Phillip Medical and Dental Centre or anywhere else, in relation to any condition or symptom such as a breast lump or any other condition of the breast such as mastitis or pain in the breast, what treatment was provided and what referrals for investigations (whether pathology tests or radiology tests) were provided. Please state if [Ms Jamieson] undertook the recommended investigations and if so what the results from those investigations were and what further advice [Ms Jamieson] was given having regard to the results of investigations. Please identify when the diagnosis of breast cancer was made and what signs or symptoms led to the diagnosis …
Ms Jamieson submitted the request for a statement verifying those matters was not reasonable. Whilst the doctors may want, potentially for strategic reasons, to force Ms Jamieson to provide verified further and quite particular information, she argued that the statutory framework does not require it. Counsel for Ms Jamieson argued against a construction of the Wrongs Act that was ‘litigation-lite’, submitting that it was surely not intended to require the claimant to embark upon the expense of effectively pleading her case and providing an evidentiary statement before Court proceedings had been commenced, when the rules of Court did not provide for such a statement during the litigation itself.
The statutory framework governing the dispute
Chapter 5 of the Wrongs Act deals with the management of personal injuries claims outside of court proceedings. The Chapter has four parts:
(i)Part 5.1 (ss 49-50) contains definitions and sets out the types of claims to which the Chapter applies. Its provisions are applicable to all claims for damages for personal injury, apart from limited exceptions concerning workers compensation claims and claims involving injuries to children, that are not relevant to this case.
(ii)Part 5.2 (ss 51-62) concerns “Claims Procedures”, and obliges the claimant to give notice of their injury within a specified time period which varies depending on whatever happens earliest between (paraphrased):
(1)the date when the accident occurred or symptoms first arose (claim to be notified within 9 months), or
(2) the claimant first instructs a lawyer to provide advice and a respondent is identified (claim to be notified within 4 months).
The part also provides an obligation on a respondent to respond to the notice, for further respondents to be added by either claimant or respondent, an obligation for any respondents to then attempt to resolve the claim, and what happens if a complying notice is not given.
(iii)Part 5.3 (ss 63-71) concerns the “Obligations of Parties to Give Documents and Information”. It sets out what information and documents must be provided.
(iv)Part 5.4 (ss 72-80) contains “Other Provisions” pertaining to pre-court procedures, such as the consequences of non-disclosure or false and misleading statements, legal privilege, what protections are to be given for documents disclosed under the pre-trial procedures, and the ability for the Court to enforce or remedy non-compliance and to give leave to commence court proceedings in urgent circumstances despite non-compliance with the Chapter 5 procedures.
A claimant must first give a respondent written notice of the claim, with the contents of the notice to include the matters set out in s 51 of the Wrongs Act, which relevantly provides (notes omitted, emphasis in original):
51 Notice of claim
(1) Before a claimant brings a proceeding against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim.
(2) The notice must—
(a) contain a statement of the information required by regulation; and
(b) authorise each of the following to have access to the records and sources of information relevant to the claim that are required by regulation:
(i) the respondent;
(ii) if the respondent is insured against the claim—the respondent’s insurer for the claim; and
(c) be accompanied by the documents required by regulation.
….
The detail of what is required is then contained in Regulation 4 of the Civil Law (Wrongs) Regulation 2003 (ACT) (Wrongs Regulations), which sets out (emphasis added):
4 Information in notice of claim—Act, s 51 (2) (a)
(1) A notice of claim must contain a statement of the information required under subsections (2) to (8) or information that substantially complies with those subsections.
(2) The following information about the injured person is required:
(a) the person’s full name and home address;
(b) any other name by which the person is, or has been, known;
(c) the person’s date of birth.
(3) The following information about the accident claimed to have given rise to the personal injury to which the claim relates is required:
(a) the date, time and place of the accident;
(b) details of how the accident happened;
(c) if appropriate, a diagram showing, to the best of the claimant’s knowledge, the scene of the accident;
(d) if known that the police, ambulance, fire and rescue service or any other emergency service attended the accident—
(i) that fact; and
(ii) if known, the name of the service or services that attended the accident; and
(iii) if known, the name and contact details of the person or people who attended the accident for the service;
(e) if known, the name, address and telephone number of anyone who has given a witness statement;
(f) if known, the name, address and telephone number of the person or people (if any) who were, in the claimant’s opinion, responsible for causing the accident (apart from the respondent);
(g) if a seatbelt or helmet was required under the Road Transport (Safety and Traffic Management) Act 1999—whether it was being worn as required when the accident happened;
(4) The following information about the nature and treatment of the injured person’s personal injury is required:
(a) a description of the injury suffered;
(b) if the injured person was or is hospitalised for treatment of the injury—the name of the hospital;
(c) if the injured person received or is receiving medical treatment for the injury—
(i) the general nature of the treatment; and
(ii) the name and address of the treatment provider or providers; and
(iii) the date of the person’s first examination by a doctor.
(5) The date the claimant first consulted a lawyer about the possibility of making a claim and identified the respondent is required.
(6) If damages for economic loss are claimed, the following information relevant to economic loss is required:
(a) if the injured person was employed or self-employed at the time of the accident—details of the employment or self-employment;
(b) if the employment or self-employment has changed since the accident—
(i) how it has changed; and
(ii) an assessment, as far as possible, of the economic loss suffered from the change.
(7) If the claimant is entitled to payment under a statutory scheme because of the accident, details of the entitlement are required.
(8) If the claim is against a health service provider, the following information is also required:
(a) a description of the medical condition for which the injured person sought treatment;
(b) the act or omission claimed to have given rise to the personal injury or to have exacerbated a pre-existing injury or condition;
(c) if the claim relates to or includes a claimed failure of the health service provider to adequately inform the injured person of the risks involved in the treatment sought—
(i) the date, time and place of each consultation with the health service provider at which information about the risks could have been given; and
(ii) if any written or oral information or warning was given to the injured person by the health service provider about the treatment—
(A) the date and place the information or warning was given; and
(B) details of the information or warning including what the injured person was informed or warned about;
(d) if written or oral consent was given by the injured person to the health service provider about the treatment claimed to have given rise to the personal injury—the date and place the consent was given.
The parts of that regulation emphasised above are the focus of the present application. But the full section has been set out to demonstrate the detail that is required for each of the types of personal injury covered by the section.
Relevant to the present application, in addition to the information requirements under s 51 and Reg 4, the claimant must also provide information reasonably requested by the respondent and provide a verifying statement if a respondent requests it. The obligation arises under s 64 of the Wrongs Act which relevantly provides (emphasis added, notes omitted):
64 Claimant to give documents etc to respondent
(1) A claimant must give a respondent—
(a)…
(b) information reasonably requested by the respondent about any of the following:
(i) the accident;
(ii) the nature of the personal injury and of any consequent disabilities;
(iii) if applicable, the medical treatment and rehabilitation services the claimant has sought or obtained;
(iv) the claimant’s medical history, as far as it is relevant to the claim, and any other claims for damages for personal injury made by the claimant;
(v) the claimant’s claim for past and future economic loss;
(vi) any claim known to the claimant for gratuitous services consequent on the claimant’s personal injury.
….
(4) If a respondent requires information given by a claimant under this section to be verified, the claimant must give the respondent a statement verifying the information.
…
(5) If a claimant fails, without proper reason, to comply fully with this section, the claimant is liable for costs to the respondent resulting from the failure.
Again, the emphasised words are what is relied upon by the doctors to found the application they make.
The overriding purpose of providing such information is ‘to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim’: s 63 of the Wrongs Act.
As explained in the Explanatory Statement to the Civil Law (Wrongs) Amendment Bill 2003, the rationale behind the pre-court procedures was to promote early notification of claims and open disclosure. The perceived benefits included earlier investigations of claims while the evidence is still fresh, and, where appropriate, cases being managed outside the court system, with compensation made available much earlier and at a lower cost. It also allowed for cases where there is no evidence of negligence to be refused with greater certainty.
In Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71, the Court of Appeal (per Katzmann J, with whom Burns J and Nield AJ agreed) said at [49]-[50] (emphasis in original):
49. The Explanatory Statement to the Civil Law (Wrongs) Amendment Bill 2003 (ACT), which inserted ch 5 into the Act, indicates that the requirement for early notification to defendants of a client’s instruction to proceed with a claim was modelled on the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”). Indeed, a comparison of ch 5 of the Wrongs Act with the PIPA leads irresistibly to the conclusion that the debt to Queensland was much greater. Of the comparable provisions of that legislation Keane JA (with whom MacKenzie J agreed and Jerrard JA generally agreed) noted in Watkins v State of Queensland [2007] QCA 430; [2008] 1 Qd R 564 (at [67]):
The purpose of div 1 to div 4 of pt 1 of ch 2 of the PIPA is to ensure that sound claims are admitted and unsound claims are abandoned; in this way, unnecessary litigation of those claims is to be avoided. ... The evident purpose of these provisions of the PIPA inevitably inform the actions of those who act in conformity with their requirements. That purpose is to ensure that good claims are paid and bad claims are abandoned before proceedings are commenced in court; that is to say, the “dominant” purpose is that there should not be litigation of the claim at all if that is reasonably possible.
(Emphasis added.)
50. The same is obviously true of ch 5 of the Wrongs Act. The obligations in ss 64 and 68 are plainly intended to operate before any proceedings are instituted. Of course, that does not necessarily mean that there is not also an ancillary purpose of ensuring that if claims cannot be settled before any proceedings are begun, they should be settled as soon as possible thereafter, and that the disclosure provisions are designed in part to bring that about.
Although there are obvious similarities between the Personal Injuries Proceedings Act 2002 (Qld) or “PIPA” in Queensland and the Wrongs Act, there is at least one important distinction between the two, namely the applicable timeframe for medical negligence cases.
By s 51(3) of the Wrongs Act, the variety of circumstances to which the procedures apply have the same strict time limits for the provision of information. That creates difficulties for personal injuries arising from medical negligence, which have a degree of complexity about them. The particulars of a straightforward accident (such as a slip or trip and fall) with personal injury suffered immediately, and the particulars of a failure over a lengthy period of time to diagnose an illness, which may ultimately be terminal, are markedly different. The time taken for a claimant to adequately investigate their claim before they are in a position to comply with the detailed requirements of Chapter 5 of the Wrongs Act may well take longer than the time limits prescribed.
That is particularly the case where medical experts are involved, which would be the case, almost invariably, for any medical negligence claim. In order for a legal practitioner to advise a potential claimant whether she (in this case) has a medical negligence claim, it may readily be anticipated that the necessary steps for a legal practitioner to take would involve taking instructions and gathering the clinical records and providing them to an expert for the purpose of obtaining a report as to whether what occurred met the standard of reasonable skill and care. It may also involve the expert seeing the injured person, which of course involves getting in to see the expert. There may be a necessity to seek advice from counsel, either before or after the report is obtained.
Through the application of s 51(3) of the Wrongs Act, all this is required to be undertaken within 4 months of the injured person first attending upon a legal practitioner for advice.
Further, the simplicity of the words “instructs a lawyer” belies what may well be a complex process in itself. The corollary of a person instructing a lawyer to provide advice is that the lawyer must take instructions in order to provide that advice. A person who is dealing with the shock of a recent diagnosis of breast cancer and undergoing chemotherapy and managing the consequences for herself and her family may not attend upon the lawyer with all the necessary information and documents immediately to hand, nor be able (within the required statutory time frame) to give the detailed instructions of what symptoms were reported to a number of different doctors months or years earlier, including whether any clinical records available accurately capture what she said at the time. That type of information may be critical to any expert medical opinion given about what occurred, and any advice the lawyer then gives about whether the person has reasonable prospects of success in pursuing a claim.
In Ahuja v Chambeyron [2021] ACTSC 267, apparently the only other case where this issue has arisen, Crowe AJ raised concerns with which I respectfully agree and which I consider to be in a similar vein to those expressed above. His Honour said at [50]-[55] (emphasis added):
50. Somewhat surprisingly, the specific issue raised in this matter does not seem to have arisen in this Court before now. … the text of the relevant provisions [of the PIPA] is slightly different from that of Ch 5 of the CLWA and as a result the decisions under that Act were not of specific assistance here. The particular issue which has arisen has been avoided in Queensland by s 9A(9) of the PIPA which requires a claimant in a medical negligence claim to provide an expert medical report as to liability and the causation of injury at the time of giving the notice of claim…
51. It is apparent from the scheme imposed under Ch 5 that the purpose of that scheme was to require the relevant parties to take every step necessary to enable a genuine attempt at settling a claim before the commencement of court proceedings. The Chapter applies to a wide range of potential claims. In many (straightforward minor motor accidents, for example), a claimant may be able to provide a respondent with all the information it needs to properly assess the claim without the need to obtain any expert medical reports.
52. However, that is unlikely to be the situation in a claim of medical negligence. While it is possible to conceive of a case where the breach of duty of care was so obvious that an expert report on liability might not be required, most medical negligence claims require expert opinion informed by a close analysis of the facts and relevant medical records. It may well be that it is simply not possible for a claimant to particularise the breach of duty to be asserted against the relevant respondent until that opinion has been obtained.
53. In that sense, there is a clear tension between the practicalities of the situation and the text of s 51 picking up, as it does, s 4(8) of the Regulation. Having regard to the purpose of Ch 5, and the clear text of s 4(8)(b), I am satisfied that the combination of these provisions does impose upon a claimant the obligation to provide meaningful particulars of the act or omissions of the respondent said to constitute the breach of the relevant duty of care. The particulars must be sufficient to enable the respondent to understand and assess the prospect that the claimant might succeed in establishing liability in the event of legal proceedings being undertaken. …54. In circumstances where a claimant’s medical condition might be quite complex, it may well be the case that although the claimant’s solicitor considered that there was a reasonable prospect that there had been a breach of the duty of care on the part of a treating doctor, it was simply not possible to obtain an opinion from an appropriate expert as to how the duty was breached in the period of four months allowed under s 51(3). Thus, it may take longer than that period just to obtain all of the relevant medical records. Or, …the claimant may be undergoing a series of investigations to establish the precise cause of his/her ongoing complaints. There is a range of possible circumstances which either alone, or in combination, might make it impossible to comply with the obligation imposed by the legislation within the allowed time.
55. In such a situation, the lawyers advising the claimant would have a difficult choice. Do they advise the claimant to give the respondent a notice of claim which, in the circumstances, must be non-complying? Or do they advise the claimant to wait before giving notice, and to trust that the excuse for not giving notice of a claim in the allowed time is accepted either by the respondent, or if necessary, by a court as being reasonable?
Given that there may be costs and other consequences for a claimant (set out in s 62) who does not comply, in my view, there may be a need for legislative amendment to recognise the additional investigations that medical negligence claims involve. I say that because this is legislation where the expressed objective is to try to resolve cases before they get to court, rather than to create legal issues that can only be resolved in court, as is evident by the bringing of the present application.
By contrast, s 9A of the PIPA makes particular provision for a different procedure applying to medical negligence cases. Although it requires prompt notification by an initial notice (s 9A(4) of the PIPA), the information required to be given is less, in that it is limited to the following (s 9A(3)):
(a) the claimant’s full name and address;
(b) any other name by which the claimant is known or has been known;
(c) if the initial notice is given by the claimant’s parent or legal guardian, the parent’s or guardian’s name;
(d) the claimant’s date of birth;
(e) a description of the medical services alleged to have given rise to the personal injury;
(f) if known, the name of the doctor who provided the medical services;
(g) the date or dates when the medical services were provided;
(h) the place or places at which the medical services were provided;
(i) a description of the personal injury alleged to have been suffered.
Section 9A(9) of the PIPA then allows the claimant 12 months, after receipt of the relevant documents from the respondent, to give particulars of the kind that are required by the Wrongs Act, as well as requiring service of an expert report detailing the failure to meet the appropriate standard of care and consequent injury. As observed above, such a report is likely to be required for medical negligence cases even without the express inclusion of those words in the Wrongs Act. The framework of the PIPA recognises the different practicalities facing claimants in medical negligence cases, in giving to those who are said to have provided the medical services the information they require to make a proper assessment about the claim. The two-step process, by which basic information is provided to allow medical service providers the opportunity to gather information and make their own preliminary investigations as well as notify insurers, followed by a longer period of time allowed to achieve clarity in the case, backed by expert medical opinion, has much to recommend it.
Resolution of the impasse between the parties
Each doctor is a separate respondent to Ms Jamieson’s claim and saw Ms Jamieson at different points in time. Regulation 4(8)(b) of the Wrongs Regulations requires the notice of claim to contain information as to “the act or omission claimed to have given rise to the personal injury”. Each is entitled to know what consultation and treatment or conduct is the subject of the claim against them, and the nature of the advice or treatment it is said each should have given.
The problem with what has been provided to date is that it is too general for each of the doctors to properly respond and assess the specific claim against each health service provider.
I accept that, to some extent, such matters may be gleaned from the reports of the medical experts and the general explanations given in the correspondence. However, there is a lack of specificity as to precisely what is being claimed against each doctor, and what it is said each doctor should have done but failed to do. It is not for each doctor to read the material and guess the claim to which that doctor is responding. Rather, it is for Ms Jamieson to notify the doctor of the claim being made and to then support it with the medical opinions.
For example, the correspondence asserts a failure to diagnose breast cancer before January 2021. The report of Dr Gorddard considers that diagnosis and treatment in or after July 2019 or April 2020 probably would have led to a better outcome. The report of Professor Boyle suggests that further investigations ought to have been done “at least as early as April 2020”. Obviously the earlier the problem is identified, the sooner it can be treated, but it is unclear whether Ms Jamieson’s claim is that there was a failure by any particular doctor as early as July 2019 or the failure is directed to a later date, or both. The submissions to the Court drawing together the particulars of the claim were well-crafted, but even then, the argument was rolled up as ‘failure to properly treat’ and complaints made ‘on particular dates’.
A second example of why what has been provided to date is insufficient concerns the April 2020 period, when Ms Jamieson consulted Dr Jaiswal. The report of Dr Gorddard suggests there was a failure to conduct investigations in April 2020. The report of Professor Boyle suggests that the investigations that should have occurred were a “Triple test”, which includes a mammogram. Although a respondent doctor could (and counsel for Ms Jamieson did) extract or surmise Ms Jamieson’s case as being that “Triple test” investigations ought to have been requested in April 2020, it is really for the claimant to confirm that is the case she is propounding, and again, whether it varies as against each doctor. It is not apparent from the material before the Court whether that is the investigation that Ms Jamieson claims Dr Greblo should also have done in July 2019.
In that regard, and by way of further example, Dr Reeve did not see Ms Jamieson until 22 November 2020. Again, the correspondence does not specify whether the nature of the claim against Dr Reeve is the same as that against the other two respondents. The correspondence sent on behalf of Ms Jamieson states:
…we anticipate it will be argued that diagnosis and treatment at that stage would not have been materially different to what happened in January 2021 when the breast cancer was discovered”.
From that part of the correspondence, it is ambiguous whether that first limb of Ms Jamieson’s claim remains part of the claim against Dr Reeve. He is entitled to know whether the claim against him includes a claim of a loss of a better outcome.
Dr Reeve is also entitled to know what it is that Ms Jamieson claims he did not do which caused loss based on the second limb of her claim, being the consequences of terminating a pregnancy. If Ms Jamieson was already pregnant by 22 November 2020 when she saw Dr Reeve, even if she did not know that at the time, that is a matter that may affect Dr Reeve’s evaluation of whether any step he took or advice he gave would have made a difference to that aspect of the claim, which has a flow on effect for assessing his liability, the likely quantum of the claim, and any offer of settlement that might be made.
These examples are sufficient to demonstrate that despite the obvious attempt made by Ms Jamieson to comply with the requirements of the Wrongs Act, the obligation to provide the information prescribed has not been substantively met.
The further information to achieve substantial compliance with the Chapter 5 procedures can readily be particularised through further legal correspondence and an order will be made requiring that to be done.
As to the requirement for a verified statement from Ms Jamieson, there is no discretion built into the legislation, in that if a respondent asks for information “reasonably requested” to be verified, such a statement must be provided.
A similar provision appears in s 22 of the PIPA, with a claimant being obliged to verify information by statutory declaration if required to do so by the respondent. It has been said that the whole philosophy of the PIPA is a “cards on the table” approach: Haug v Jupiters Ltd [2007] QSC 68 at [54]. Verification of the information may be viewed as a way of ensuring that claimants do not keep a card up their sleeve when providing particulars or information pre-litigation.
However, the information that must be verified is limited to the information a respondent reasonably requests under s 64 of the Wrongs Act. The words of s 64(1)(b) permit a request for “the medical treatment… the claimant has sought or obtained” and “the claimant’s medical history, as far as it is relevant to the claim”. However, what falls within those words may be difficult to define.
The doctors’ request includes a verified statement of Ms Jamieson’s attendance upon any doctor anywhere. In my view, in the circumstances of the allegations made in this case, that casts the scope of the statement required too broadly. Information provided to a different general practitioner at a different consultation may bear upon the credit of the claimant, and thus be indirectly ‘relevant’ to a respondent’s defence of Ms Jamieson’s claim. However, this is not a statement that is required to be made in the litigation itself, nor is it a process akin to discovery or interrogatories. I cannot see a basis for requiring Ms Jamieson to go further in a verified statement under s 64(4) of the Wrongs Act than what she would be required to do if litigation had actually been commenced.
It must also be remembered that there is a degree of protection against misleading statements built into the legislation through the offence provisions. In the present case, I do not consider it is reasonable for Ms Jamieson to provide verified details of what she told any other doctor she saw during the relevant period, or the treatment that was given by other doctors before her diagnosis. Her claim is that three different doctors each failed to take adequate steps to investigate symptoms reported by her to them, and this is what caused a delay in discovering that she had breast cancer. The legislation does not require Ms Jamieson to give a verified statement for the purpose of assisting the doctors to investigate how other advice given by different practitioners may affect their defence to the claim (for example, with regard to causation). What is relevant to her claim against each respondent doctor is what history or symptoms she reported to each of them, the results of any tests they ordered or otherwise had access to, what she says each advised her, and whether she followed the recommendations that each gave.
That will enable the doctors to know the dates of the consultations that are in question, the symptoms that were reported, the steps Ms Jamieson says each doctor recommended and whether she took the advice given. Combined with the particulars that Ms Jamieson will be required to provide in correspondence, the doctors will be in a position to understand what it is said each doctor should have done in response to the symptoms communicated, and the likely consequence of failing to take those steps. I consider the provision of that information by verified statement will achieve substantive compliance with the pre-trial procedures.
As to timing, in this case, a letter broadly clarifying the position as against each doctor should be able to be sent by Ms Jamieson’s legal representative within 6 weeks, and a further letter or statement verified in some way by the claimant dealing with her medical treatment history limited to the reporting of symptoms to each of the respondent doctors to be provided within approximately 4 months. Of course, if it can be done earlier, then that is a desirable course.
The doctors have sought the costs of their application. Section 64(5) of the Wrongs Act provides that if a claimant fails without proper reason to comply fully with the section, the claimant is liable for the costs to the respondent resulting from the failure. I have found that the claimant did not fully comply with the section. However, the reason for the failure was not that the information was not supplied, but really that the information was not supplied in a form sufficiently specific to enable each doctor to properly investigate and respond to the claim being made. I am satisfied that Ms Jamieson made a genuine attempt to comply with the Chapter 5 procedures. Further, what was requested went beyond information reasonably requested to be verified.
In those circumstances, the claimant has not failed to comply ‘without a proper reason’, and accordingly, I will exercise the discretion to order each party to pay their own costs.
Conclusion
For the above reasons, the orders of the Court are as follows:
(1) On or before 22 November 2022, the defendant (claimant) is to provide further particulars in respect of each of the plaintiffs (the doctors) as follows:
(a) The signs or symptoms relating to breast abnormalities reported by the claimant to each doctor and the dates when such symptoms were reported.
(b) The steps (either investigations or diagnosis) that the claimant says each doctor should have undertaken or made.
(c) The date/s on or by which it is claimed each doctor ought to have either: (i) diagnosed breast cancer, or (ii) taken steps that would have resulted in such a diagnosis.
(d) The consequence (in terms of treatment, prognosis or other outcome) that the claimant alleges would have resulted had the said diagnosis or investigations been made or undertaken.
(2) On or before 6 February 2023, the claimant is to provide a verified statement setting out the following:
(a) When the claimant attended upon any of the doctors in relation to any condition or symptom pertaining to her breasts;
(b) What treatment was provided, or investigations recommended;
(c) Whether the claimant carried out the investigations recommended; and
(d) What further advice the claimant was given having regard to the results of any such investigations.
(3) Each party is to pay their own costs of the application.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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