Jana bht Jana v Western Sydney Local Health District t/as Westmead Hospital

[2021] NSWSC 1354

Supreme Court

New South Wales

Medium Neutral Citation:

Jana bht Jana v Western Sydney Local Health District t/as Westmead Hospital [2021] NSWSC 1354

Hearing dates:

15 October 2021

Date of orders:

15 October 2021

Decision date:

15 October 2021

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

(1)   Order the first defendant to serve its lay statements by close of business Wednesday, 20 October 2021.

(2)   Order the first defendant to notify the plaintiff by close of business Wednesday, 20 October 2021 of the outcome of its enquiries of Dr Day as to what records he was provided with when he provided his expert’s report.

(3)   Liberty to apply to Beech-Jones CJ at CL.

(4)   The plaintiff to pay the defendant’s costs of the Motion.

(5)   Notice of Motion dismissed.

Catchwords:

PRACTICE AND PROCEDURE – application to amend pleadings – form of pleadings – no question of principle

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175; [2009] HCA 27

Category:

Procedural rulings

Parties:

Jeanette Jana by her tutor Ronald Jana (Plaintiff)
Western Sydney Local Health District t/as Westmead Hospital (First Defendant)
Mohammed Sherif Dowla (Second Defendant)

Representation:

Counsel:
D Higgs SC; D Del Monte (Plaintiff)
S Kettle (First Defendant)
B Epstein (Second Defendant)

Solicitors:
Concordia Legal (Plaintiff)
McCabes (First Defendant)
HWL Ebsworth Lawyers (Second Defendant)

File Number(s):

2015/234156

EX TEMPORE Judgment

(Revised from transcript)

1. By notice of motion filed 23 September 2021, the plaintiff, Jeanette Jana, who brings the proceedings by her tutor, Ronald Jana, seeks leave to file a proposed fourth amended statement of claim.

2. The proceedings were first commenced in 2015 and relate to events that occurred in 2012 and 2013.  In late 2012, upon her return from overseas, the plaintiff was diagnosed with meningitis and suffered significant injury as a result. Thus, the proceedings are very old and have a long procedural history.  They are listed for a hearing in November of this year.  There are extant orders to take the matter up to hearing, including for the provision of witness statements and the holding of expert conclaves. However, the preparation of the hearing has reached an impasse because of the outstanding issue about the proposed amendments. 

The Existing Pleading

3. The third amended statement of claim filed on 21 March 2021 (“TASOC”) pleads that on 15 August 2012, the plaintiff presented to the emergency department of Westmead Hospital, which is under the control of the first defendant, the Western Sydney Local Health District, complaining of, amongst other matters, headaches. She was seen by a doctor employed by the first defendant.

4. The TASOC then pleads that she was discharged, without the performance of a lumbar puncture, although that had been requested.  It further pleads that, at some point, her general physician referred her to the second defendant, Dr Mohammed Dowla, a neurologist, who examined her on 21 August 2012.  One of the complaints in the TASOC is that Dr Dowla was negligent in not ordering a lumbar puncture.

5. The TASOC further pleads that on 12 September 2012, the plaintiff returned to the emergency department of Westmead Hospital and complained, amongst other matters, of episodes of migraines and vomiting. She was nevertheless discharged but re‑admitted to the hospital on 28 September 2012. The TASOC pleads that on that day she complained of left ear pain with vertigo, against a history of symptoms in each ear, for the preceding two weeks.

6. The balance of the factual allegations in the statement of claim concern her subsequent departure for Papua New Guinea, her admission to hospital in that country where she was diagnosed with tuberculosis meningitis, and her repatriation to Australia. She was re‑admitted to Westmead, with a final diagnosis of cryptococcal meningitis.

7. The particulars of the breach of duty of care in the TASOC include an allegation against the first defendant that it, "[f]ailed to perform a lumbar puncture on the plaintiff from 12 August 2012, despite the plaintiff's presenting symptoms, her country of origin, and her mother's insistence”.  That particular of negligence is not confined to any particular presentation to the hospital but extends across all of the presentations to the hospital.  The particulars of negligence against Dr Dowla are varied, but they also include failing to order a lumbar puncture.

The Application to Amend and the Second Defendant

8. The affidavits sworn in support of the application to amend place particular emphasis on the location of further hospital records relating to the three admissions to Westmead Hospital, that is, on 15 August 2012, 12 September 2012 and 28 September 2012.  In short, the evidence demonstrates that a number of years ago the plaintiff's former solicitor obtained copies of her medical records from the hospital under the Government Information Records Act. In or about March 2020, a subpoena was returnable in this Court seeking the production of all of the hospital's records. A large number of documents were produced.  It seems that a very close review of those records was conducted in around July to August of this year. With the benefit of scrutiny by Senior Counsel, a number of records were identified as having been produced on subpoena that related to those three admissions that had not previously been provided. 

9. Although not all the amendments relate to those additional records, it is important to, at least, identify what the plaintiff says they reveal that was not previously known.

10. Hence, during the course of argument, Mr Higgs SC took me closely through the material. In relation to the plaintiff’s attendance on 28 September 2012 the additional records seem to indicate, in broad terms, that, contrary to what might be suggested from a reading of the previously supplied discharge summary, the records of that admission indicate that the complaints of ear pain made by the plaintiff were associated with headaches, and that she displayed other neurological symptoms including, apparently, shivering, even though it was a hot day.

11. The additional records in relation to the admission on 15 August 2012 are said to indicate that a doctor who reviewed the plaintiff formed the view that it was necessary that she stay overnight under his care, with examination of her condition to including the taking of temperature checks. In fact that did not occur and she was discharged shortly after that doctor's assessment.

12. The review of the additional records in relation to the admission on 12 September 2012 were said to indicate that what was disclosed in the discharge summary as representing a doctor's opinion concerning the plaintiff may have only reflected a nurse's assessment. It suffices to say that inference is open on a reading of the material.

13. There is no doubt that the extra material concerning the admissions to the hospital are admissible at the trial and can be deployed in favour of a contention that the defendants were at some point obliged to order a lumbar puncture.

14. During the course of argument, Mr Higgs SC submitted that the nature of that additional material also suggested that an obligation arose on the first and second defendants to take, as it were, more proactive steps falling short of actually obtaining a lumbar puncture such as to, at least, strongly advise the plaintiff to bring home to her the risk she faced and the necessity for her to pursue follow up if her symptoms persisted.  It is arguable that that is already contemplated by the existing particulars of negligence; although I express no final view on that matter.

15. The difficulty is that the proposed amendments go far beyond the propositions which are said to arise from the additional documents.  Some of the amendments that are not related, or do not directly flow from the additional documents, appear to relate to a revision of some primary facts based upon lay statements such as the statement obtained from the plaintiff's mother.  In the ordinary course that should not present too much of a difficulty; either because the pleading is not to be taken as a representation of all the evidence about a particular consultation; or because I doubt very much that any real prejudice could be occasioned by an amendment that simply records the effect of the advice given by the plaintiff's mother as she recalls it.

16. However, other amendments, particularly those identifying the relevant particulars of negligence are more problematic.  So far as the second defendant is concerned, it is evident from what I have stated that none of this extra material relates to the consultation with him.  Nevertheless, the additional particulars of negligence set out in the proposed amendment to para 9E of the TASOC are so potentially wide or vague as to leave the second defendant with real difficulty to knowing the case he has to meet.  For example, they include additional particulars of negligence that he:

"(j)   fail[ed] to make inquiries with the hospital and the GP with regard [to some differences in the referrals he received from the GP and the hospital]

(k)   fail[ed] to examine the plaintiff adequately and record his detailed relevant findings;

…

(n)   failed to recognise the plaintiff's presenting symptoms as being suggestive of (tuberculosis and/or) meningitis and for it to consider, make and record differential diagnoses including meningitis; and investigate, examine, treat, inform, advise and communicate with the plaintiff and her existing future treating medical practitioners, (including both directly and by his report)

…"

17. Further subparticulars of the allegation in (n) are included.

18. It may be that on close analysis those particulars of negligence are in fact saying no more than the obligation of the second defendant was that, if he did not order a lumbar puncture, he had to give the plaintiff emphatic advice that, if her symptoms did not go away in a relatively short period, she should return and request it again.  Equally, it may be that these particulars will, at trial, be used as a basis or to justify a wide inquiry as to what the result of making inquiries with the hospital and GP would have revealed, what an adequate examination of the plaintiff might have revealed, what record he should have kept, and what the result of his "consideration" and recording of differential diagnosis would have been.

19. It must be remembered that these amendments are not the subject of any explanation for the delay in the making of them because, as I have said, they do not relate to the additional documents described above. Without knowing with some precision what the particulars exactly require of the second defendant, then the type of analysis required to address these proposed amendments against the relevant provisions of the Civil Procedure Act 2005, and as further required by Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175; [2009] HCA 27, cannot be embarked upon.

20. Given the history of this matter and the proximity to a trial, then it is likely that only a very narrow amendment to the particulars of negligence would be entertained. In that regard, if on close analysis, all that is sought to be done is to identify with more specificity what the alleged negligence is, that is one thing.  If, on the other hand, what is left open by an amendment to a particular of negligence is a very different case, then that is another.  The way in which the proposed particulars of negligence are drafted leaves the Court completely unclear as to which of those two is the case.

21. When faced with that circumstance, and bearing in mind there is no explanation for these amendments, then the only course the Court can take is to refuse leave to make the proposed amendments as against the second defendant.

Amendments Affecting the First Defendant

22. The same applies to the first defendant.  I have some sympathy for the plaintiff about what has occurred in relation to the additional documents.  Although they were produced on subpoena in March 2020, most people with experience in litigation are familiar with the circumstance of having reviewed thousands of records, particularly medical records, and having overlooked some of the documents the first time they were reviewed.

23. The real problem with the additional particulars of negligence that are sought to be pleaded against the first defendant is that they either do not arise out of the additional documents, or if they do, they were drafted in such a way as to leave the case that the first defendant has to meet entirely unclear. One particular reason for that, is that they continue the process of wrapping up all the particulars of negligence in the one paragraph referrable to all three hospital admissions.  While that may not be a problem in the existing statement of claim, the difficulty they raise in relation to the proposed amendment is exemplified by proposed particular 26(e) which alleges negligence in failing to arrange any or adequate follow up with the hospital.

24. When Mr Higgs SC was pressed on this, he identified the form of follow up as follow up by a neurologist.  So far as the admission on 15 August 2012 is concerned, however, that allegation would appear to go nowhere in that the plaintiff did attend a neurologist, namely the second defendant, after that admission.

25. As an example of a wider problem with the proposed particulars, in leaving it unclear as to what the first defendant should have done, and what the causal consequences of that should have been, proposed particular 26(d) alleges that in respect of all admissions, the first defendant was in negligent in failing to "consider, record, inform and advise the plaintiff about the risk of her symptoms progressing, and having significant health consequences, unless there was regular review follow up and further urgent investigation, including lumbar puncture". The difficulty with the phrase, "consider, record, and inform" in this particular is that they really travel nowhere.  This particular, and numerous other particulars of negligence, continually refer to subjective mental processes that the first defendant should have undertaken, which of themselves could have no causal consequences unless there was some obligation to take action that arose from them.

26. A further example of this difficulty is proposed subparagraph 26(o), which alleges that, in relation to the 28 September 2012 presentation, the first defendant, "fail[ed] to consider adequately, or at all, that the plaintiff, by and at this time", and then various factual matters are identified as what they had to “consider”.  An allegation that the first defendant was obliged to "consider" something, travels nowhere unless it is tied to a specific obligation to take action.  Unless that specific obligation to take action is itself identified and pleaded, the first defendant will not know the case it has to meet by an alleged failure to “consider” some fact or circumstance.

27. Hence, with the amendments against the first defendant, the position is the same as I identified them with the second.  To the extent that the amendments do not arise out of the production of the additional documents, then they remain wholly unexplained, notwithstanding the many years these proceedings have been on foot.  Further, in relation to all the amendments, but especially the amendments to the particulars of negligence, they are drafted in such a manner that, at this late stage, they put the first defendant in a position of not knowing the case it has to meet at trial.  They leave the Court in the position of not really being able to embark upon an analysis of the various factors affecting a grant of leave to amend as discussed in Aon.

Conclusion

28. If the proposed amendments had simply been confined to a clarification of background facts by reference to the lay statements that had been provided, as well as making the short and simple allegation that, as an alternative to arranging a lumbar puncture, either the first or second defendant or both was required to give specific and emphatic advice to the plaintiff about follow up in the event her symptoms persisted, then the Court could have embarked upon a more detailed consideration of the factors identified in Aon, including by giving consideration as to how those amendments could be accommodated by either maintaining the trial date or adjourning the matter.  However, the amendments were not drafted in that way, but were instead drafted in such a way as to make that task impossible.  In these circumstances, it is not possible for the Court to simply go through and allow some amendments and not allow others.  Instead, it is a matter for the plaintiff to consider her position.

29. Accordingly, I will dismiss the plaintiff's notice of motion.

[Parties addressed and his Honour ordered]

1. Order the first defendant to serve its lay statements by close of business Wednesday, 20 October 2021.

2. Order the first defendant to notify the plaintiff by close of business Wednesday, 20 October 2021 of the outcome of its enquiries of Dr Day as to what records he was provided with when he provided his expert’s report.

3. Liberty to apply to Beech-Jones CJ at CL.

4. The plaintiff to pay the defendant’s costs of the plaintiff’s Notice of Motion filed 23 September 2021.

5. Notice of Motion otherwise dismissed.

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Decision last updated: 25 October 2021