Kalinovski v Langov

[2023] NSWSC 1106

Supreme Court

New South Wales

Medium Neutral Citation:

Kalinovski v Langov [2023] NSWSC 1106

Hearing dates:

6 September 2023

Date of orders:

6 September 2023

Decision date:

06 September 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The settlement is approved, and orders made in accordance with short minutes of order

Catchwords:

CIVIL PROCEDURE — plaintiff represented by tutor — settlement reached — application for court approval of settlement — s 76 Civil Procedure Act 2005 (NSW) — consideration of whether settlement is in the best interests of the plaintiff

TORTS — medial negligence — plaintiff alleges that he was he was advised by medical practice to cease anticoagulant medication in advance of procedure — dispute as to, inter alia, advice given

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 72 and 76

Category:

Principal judgment

Parties:

Riste Kalinovski (Plaintiff)
Lupco Langov (Defendant)

Representation:

Counsel:
A Campbell (Plaintiff)
A Serisier (Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2021/252352

ex tempore JUDGMENT (revised)

1. The plaintiff in this medical negligence case, Mr Kalinovski, was born in 1948 and he is now 75 years of age. His claim arises out of a procedure that was performed by the defendant medical practitioner on 7 December 2020. That was, what might have been expected to be, a fairly straight forward day procedure for the removal of a skin cancer from Mr Kalinovski's scalp. He had at that time, as might be expected for a man of his age, if I may say so with respect, a number of other medical conditions for which he was receiving treatment. One of those conditions was the condition of atrial fibrillation which had been diagnosed as along ago as 2013. He was receiving anticoagulant medication in respect of that condition. His medication was the drug Apixaban.

2. After consulting the defendant on 30 November 2020 arrangements had been made for the excision of the skin cancer to occur on 8 January 2021, but that was apparently brought forward. It is the evidence of the tutor, Mrs Kalinovska, that on the 3 December 2020 she received a telephone call from a person at the medical practice informing her that her husband's operation had been brought forward to the 7 December 2020. At that time the representative of the practice advised that the plaintiff would need to stop taking his anticoagulant. Mrs Kalinovska says that she informed the person that her husband had taken his medication that morning and was advised he should stop it from then. I interpolate that it is apparent from to me from the material I have been asked to consider that there is a dispute of fact about that conversation and the defendant does not admit that advice was given to cease the anticoagulant at that time. As I understand the issues in the case that is a very significant dispute of fact because the expert evidence on both sides of the record seems to be that it was unnecessary for the medication to be discontinued so far out, that is to say, that number of days out from the surgery.

3. The significance of the issue is that although the surgery undertaken to excise the skin cancer was successful, in the hours following the surgery Mr Kalinovski suffered a stroke. The medical evidence in the case would at least support a conclusion at the trial that the stroke was related to the discontinuance of the anticoagulant medication in a person who suffered from atrial fibrillation. The mechanism seems to be that of course the formation of clots is a matter which increases the risk of stroke and, on the opinion relied upon by the plaintiff, did in fact cause the stroke on this occasion.

4. I should say that this narrative of fact and summary of the evidence I have given is not uncontroversial. I have already indicated that there is a dispute about the nature of the advice, if any, given on the 3 December 2020. There is also a dispute about the connection between the discontinuance of the medication on the 3 December and the occurrence of the stroke on the 7 December.

5. I have already indicated that Mr Kalinovski is a man of 75 years of age. The evidence relied upon by his legal representatives indicates that the stroke has led to a marked change in his lifestyle and his need for care and assistance provided by his wife, family and others. If I may say so, there is also a dispute about the effect of the stroke on Mr Kalinovski's life expectancy. That dispute is in part related to the consideration that at his level of seniority he had other health conditions which are relevant to the imprecise science of forecasting the span of a person's life.

6. In any event the proceedings have been well prepared and are ready for trial although no date has yet been fixed. The parties have attended to mediation and a settlement proposal has been advanced in a certain sum which it is unnecessary for me to mention in open court. However, I am satisfied that the sum is a not an insignificant one, if I can use that euphemism, and that it is an appropriate figure for the settlement of the case having regard to the issues as I understand them to be and as I have sought to explain. I have no doubt that the settlement proposed by the parties is in Mr Kalinovski's best interests and in the circumstances I should approve it according to the provisions of s 76 Civil Procedure Act 2005 (NSW) (“CPA”).

7. I should say from the affidavit of Ms Newman, Mr Kalinovski's solicitor, I understand that there are relatively modest amounts to be deducted from the settlement in respect of a Medicare charge which is measured in a figure of some hundreds of dollars. There is also, as always, an allowance estimated for what lawyers refer to as the solicitor and client margin of legal costs over and above the amount the defendant is obliged to pay for the plaintiff's legal costs on the ordinary basis, the usual order made in civil litigation.

8. From the affidavit of the tutor, Mrs Kalinovska, I understand that those matters have been explained to her and she accepts the need for the Medicare charge to be deducted and that she also understands the amount that the solicitor has estimated will be deducted in respect of the irrecoverable proportion of the legal costs. She has been given advice, if I can put it this way, as to precise the sum that will be paid for her husband's damages. I understand from her affidavit that she is content with that outcome and also believes that the proposed settlement is in her husband's best interests. I should record that the evidence indicates that there will be no deduction for any social security charge, nor has Mr Kalinovski been a participant in the National Disability Insurance Scheme.

9. It is proposed that Mrs Kalinovska will make an application before the Guardianship Division of the Civil and Administrative Tribunal for an order in her favour for financial guardianship of her husband's estate and until that matter is finalised the plaintiff's lawyers request that I simply order that the proceeds of the settlement be paid into court pending a further application. I am prepared to accede to that application in accordance with the provisions of s 77 CPA.

10. In accordance with the form of consent judgment signed by the solicitors for the parties and by me pursuant to s 76 CPA the settlement is approved. I enter judgment in accordance with orders 2 and 3 of the consent judgment. In accordance with order 4 under s 72 CPA the defendant is to pay the judgment sum minus any statutory deductions into court pending further order. I note the further matters of agreement between the parties recorded in the subsequent provisions of the consent orders in paragraphs 1, 2, 3, 4, 5 and 6, which I will initial, date and place with the papers. Those orders may be entered forthwith.

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Decision last updated: 11 September 2023