LACHLAN Duffus an infant by his next friend Meredith Ann Duffus v Royal Perth Hospital
[2004] WADC 100
•19 MAY 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: LACHLAN DUFFUS an infant by his next friend MEREDITH ANN DUFFUS -v- ROYAL PERTH HOSPITAL [2004] WADC 100
CORAM: BLAXELL DCJ
HEARD: 30 APRIL 2004
DELIVERED : 19 MAY 2004
FILE NO/S: CIVO 89 of 2004
BETWEEN: LACHLAN DUFFUS an infant by his next friend MEREDITH ANN DUFFUS
Plaintiff
AND
ROYAL PERTH HOSPITAL
Defendant
Catchwords:
Limitation of actions - Public authority defendant - Application for leave to bring action - Whether "just" to grant leave
Legislation:
Limitation Act 1935 s 47A
Result:
Application for leave to bring action refused
Representation:
Counsel:
Plaintiff: Mr B Ullinger
Defendant: Mr M L Wilk
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Blake Dawson Waldron
Case(s) referred to in judgment(s):
Pitcher Products Pty Ltd v Country Roads Board [1964] VR 661
Case(s) also cited:
Nil
BLAXELL DCJ: This is an application on behalf of the infant plaintiff for leave (pursuant to s 47A of the Limitation Act) to commence proceedings against the defendant claiming damages for personal injuries. The plaintiff was born with birth defects on 1 May 1998 and it was alleged that these problems were the result of the negligence of the defendant in its medical management, advice and treatment of his mother during the course of pregnancy.
The application was brought on the last day on which a writ could be issued within the six year period of limitation in respect of the plaintiff's claim. Of necessity, my decision had to be made immediately, and that decision was to refuse the application. I now provide these reasons for decision.
The background to the claim
The materials before me are not complete but establish the following chronology of events.
On 4 December 1997 the plaintiff's mother (Ms Duffus) was approximately 18 weeks pregnant with the plaintiff. As I understand the facts she had previously attended for antenatal care at the Joondalup Health Campus, where a recent ultrasound scan had reported a normal appearing foetus.
On that date (4 December 1997) Ms Duffus was admitted to Royal Perth Hospital in an acute depressive state. The level of depression was severe and Ms Duffus was considered to be suicidal. Over the following three to four weeks she was prescribed a number of medications including anti‑depressants, anti‑psychotics, analgesics, and inhalants for asthma. Most of these medications were considered to be safe in pregnancy. However, the anti‑depressants were recommended for use with caution during pregnancy but were not contra‑indicated where there was a psychiatric necessity.
It is relevant to note that the admission summary on 4 December 1997 recorded that Ms Duffus had a past psychiatric history of Benzodiazepine abuse. It is generally considered that the Benzodiazepine group of drugs should not be used during the first trimester (viz 12 weeks) of pregnancy.
It would seem that despite the treatment with medications, Ms Duffus' depressive state deteriorated and during the first half of January 1998 electroconvulsive therapy was considered and discussed. Ms Duffus went on to receive this treatment on five occasions between 14 and 23 January and each time she was anaesthetised, given a muscle relaxant, intubated and ventilated. This therapy was successful in controlling her depressive state.
The pregnancy subsequently proceeded uneventfully, and Ms Duffus came into spontaneous labour and delivered the plaintiff on 1 May 1998 at 37 weeks gestation. It would seem that some abnormalities were observed soon after birth, and an EEG revealed a "mildly abnormal background". On 18 May 1998 a CT scan of the plaintiff's brain showed "a normal brain with a developmental variant, - cavum septum pellucidum".
On 29 July 1999 (when the plaintiff was nearly 14 months old) a chromosome test was reported to be normal, but there was "metopic craniostenosis, dysplastic elbow joints, mild right hemiplegia, developmental delay and talipes". A further report from a multi disciplinary team on 8 September 1999 indicated that there was decreased language, decreased oro motor skills and increased tone in both arms, with decreased fine motor control.
Steps taken towards pursuing the claim
As the plaintiff's mother was of the view that his abnormalities had been caused by the electroconvulsive therapy ("ECT") during pregnancy she obtained legal advice as to a prospective claim. On 31 January 2000 her solicitors wrote to the defendant advising that there would be a claim for damages based on:
"1.Negligence, in that the EC treatment should not have been administered to a 24 week pregnant patient; and
2.Failure to warn our client's mother of all the likely risks and consequences of the treatment."
There then followed correspondence between the parties as a result of which the defendant (on 31 May 2000) agreed to waive the requirements of s 47A of the Limitation Act for a period of six months. This waiver appears to have been given on the basis that the plaintiff's solicitors were awaiting certain expert reports which would be determinative of whether or not the claim would go ahead. In this regard, the plaintiff's counsel had stated in a letter dated 5 May 2000 that:
"We are open minded as to whether or not the treatment administered to Ms Duffus was responsible for the injuries to our client. Obviously we will be guided by, and act upon expert medical evidence. Obviously we would appreciate your client waving (sic) its reliance upon Section 47A of the Limitation Act. If the medical evidence is not supportive of our client's position then it would be a waste of every ones time and money attempting to obtain leave to commence proceedings which is not supported by medical evidence. On the other hand, assuming that medical evidence is forthcoming supportive of our client's claim, we suspect that Court would be inclined to grant leave to commence proceedings given the serious nature of our client's injuries."
There was no further communication between the parties until 10 July 2001 when the plaintiff's solicitors wrote to the defendant requesting an extension of the previous waiver. The reason given for this request was that the solicitors required the opportunity to obtain expert opinion from two additional eastern states medical experts specialising in obstetrics and psychiatry. Ultimately, following further correspondence, the defendant's solicitors by letter dated 7 December 2001 advised that their client would not consent to any further extension of the requirements of s 47A of the Limitation Act.
Nothing further occurred between the parties until 29 April 2004 when the plaintiff's solicitors filed the originating summons for the present application. The originating summons was listed for hearing on 30 April, and although it was served on the defendant, the plaintiff's solicitors clearly failed to comply with s 47A(3)(c) of the Act.
The matter was added to the general chambers list on the morning of 30 April, and when it came on for hearing I pointed out that the affidavit material in support of the application was very scanty. Furthermore, counsel for the defendant was asserting that by reason of the shortness of notice he had been unable to obtain sufficient instructions as to any potential prejudice that might arise from the grant of leave.
The hearing of the application was then adjourned until late that afternoon so that the plaintiff's solicitors would have the opportunity to file and serve copies of the medical reports on which the claim was based.
The opinions of the medical expert
When the application came on for hearing again the plaintiff's solicitors had filed and served copies of a report dated 2 April 2002 from a paediatric neurologist, Dr Lindsay Smith, and a report dated 12 April 2004 from an obstetrician/gynaecologist, Mr Ian Barrowclough.
According to Dr Smith, it is unclear whether the plaintiff has cerebral palsy or developmental delay with signs of cerebral palsy. Between 44 per cent and 70 per cent of children who have cerebral palsy do not have any known cause. Likewise in children with developmental delay of a mild degree, only 30 per cent have a known medical cause. Nevertheless there are four possible aetiologies for the plaintiff's condition:
"1.The ECT led directly to lack of oxygen to the mother and foetus resulting in hypoxia to the brain with subsequent damage.
2.The presence of mixed drug administration before and during the hospital stay at Royal Perth led to interference with the development and maturation of the brain.
3.The developmental delay, cerebral palsy, skeletal manifestations and the reported maternal congenital skeletal abnormalities are due to a genetic abnormality.
4.The same reasons most children with minor cerebral palsy and developmental delay are born."
With regard to the first of these possible aetiologies, the literature indicates that "in pregnant women, ECT is very effective and with proper medical care it is relatively safe in all trimesters of pregnancy". Another study summarised 300 cases of ECT and found 28 complications but none of these included cerebral palsy or delayed development. However, the case reports do not seem to have looked specifically for this.
Although further tests might establish a causal link between the ECT and the plaintiff's present condition, Dr Smith's conclusion is that:
"On the material supplied it is unlikely that no more than a small possibility exists that the ECT directly led to the state of difficulties."
Mr Barrowclough's report comments on the possibility of there being a causal link not only with the ECT treatment but also with the medications that were prescribed by the defendant. In this regard Mr Barrowclough had the benefit of reports not only from Dr Smith but also from an anaesthetist, Dr Andrew Bennett, and a psychiatrist, Dr Paul Skerritt. With regard to the first of these possibilities Mr Barrowclough noted:
"This ECT treatment occurred in the second trimester. The babe was at this time fully developed. The ECT was, naturally, done under anaesthetic so the patient would be well oxygenated. It is accepted that the major risk to a foetus is that of hypoxia and with proper oxygenation to the mother as occurs with anaesthesia this is a minimal risk.
I believe it is most unlikely that this course of ECT had any deleterious effect on this foetus."
As to the second possible cause Mr Barrowclough's report states:
"For any medication to cause developmental abnormalities in the foetus such medication would have to be used during the developmental phase of intra‑uterine life and this is in the first trimester, that is the first 12 weeks, and the first 10 weeks in particular. By the end of the first trimester the foetus is fully developed." (In the present instance, the plaintiff's mother was admitted to the defendant's hospital at the beginning of the second trimester.)
By way of general comment, Mr Barrowclough goes on to state:
"In the practice of obstetrics it is necessary to consider two patients – the mother and the foetus. It is not always easy to ensure the complete safety of both. If there arises a question of possible damage to a foetus with a possible use of a certain method of treatment to the mother, then the wellbeing of the mother must take priority.
In this case Ms Duffus was obviously severely depressed and was suicidal. Therefore she did need a very active treatment.
I consider it most unlikely that the ECT or the drugs used would have adversely affected the babe. Be that as it may, however, in this case the treating medical staff had no other option."
The reasons for refusing leave
In order to obtain leave pursuant to s 47A(3)(b) of the Act, an applicant must persuade the Court that the delay in bringing the action was occasioned by mistake or other reasonable cause or that the prospective defendant is not materially prejudiced in his defence by such delay. Once one of these criteria is established, the Court has a discretion to grant leave if it thinks it is "just" to do so.
In the present instance it was not contended on behalf of the plaintiff that the delay in bringing the action had been occasioned by mistake or other reasonable cause. It was simply asserted that the defendant was not materially prejudiced by the delay, it having been given notice of the claim in January 2000.
Given that my decision on whether to grant leave had to be made immediately, there was insufficient time for the defendant's solicitors to obtain instructions and to file an affidavit dealing with the issue of prejudice. In the circumstances I decided to put this question to one side, and to firstly consider whether it would be "just" to grant the application if in fact there was no material prejudice to the defendant.
The most significant factor impacting on the justness of granting leave was the lack of any medical opinion which supported the plaintiff's claim. Before the claim could become viable, it would be necessary for the plaintiff's solicitors to find expert opinion to establish not only negligence by the defendant but also a causative link between that negligence and the plaintiff's condition. However, the medical reports produced on behalf of the plaintiff point to the unlikelihood of obtaining evidence capable of sustaining the claim.
Dealing firstly with the issue of negligence, it is significant that Ms Duffus was being treated during her second trimester in respect of which period there was no known danger to a foetus from the treatment administered. Furthermore, even if there had been a known danger, her doctors would have been faced with the choice of treating the mother or guarding the foetus, and in Mr Barrowclough's words: "The wellbeing of the mother must take priority". Needless to say, if the plaintiff's mother had committed suicide that would have been the worst possible outcome from his point of view.
As to the possibility of there being a causative link between the ECT treatment or the medications and the plaintiff's condition, the medical experts consider this to be either "highly unlikely" or "a small possibility". It follows in my view that:
"… the proposed action … is so clearly without any substantial foundation that it would be simply vexatious and unjust to allow the defendant to be harassed with such litigation." (Pitcher Products Pty Ltd v Country Roads Board [1964] VR 661, 669.)
Inevitably therefore I came to the conclusion that the application for leave should be refused.
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