Lange v Drioli
[2019] SADC 74
•18 June 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LANGE & ORS v DRIOLI & ANOR
[2019] SADC 74
Reasons for Decision of Her Honour Judge Schammer
18 June 2019
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWER TO CONTROL PROCEEDINGS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PROCEDURAL ASPECTS OF EVIDENCE - EXPERT REPORTS AND EXPERT EVIDENCE - OTHER MATTERS
Application made by the plaintiffs seeking orders for a joint conference of the obstetric experts and the provision of a joint report pursuant to Rule 213 – application opposed - whether the process will facilitate and/or encourage a resolution of the matter, result in efficiencies being achieved in the conduct of the trial and/or minimise the cost of the litigation.
Held: Application dismissed.
District Court Civil Rules 2006 r 213, referred to.
Boardman v South Eastern Sydney Area Health Service & Ors [2001] NSWSC 930; Spasovic & Anor v Sydney Adventist Hospital & Anor [2002] NSWSC 164; Booth v Di Francesco [2002] NSWSC 154; Willett v United Concrete Pty Ltd & Anor [2009] NSWSC 957, considered.
LANGE & ORS v DRIOLI & ANOR
[2019] SADC 74The Application
By application dated 19 March 2019 (FDN 60) the plaintiffs seek the following orders pursuant to Rule 213 of the District Court Civil Rules 2006 (DCR 213):
1 That the expert obstetric witnesses, Professor Mike O’Connor and Professor Con Michael confer by 28 June 2019.
2 That for the purposes of the conference the experts refer to:
(a)The Joint Statement of Assumptions;
(b)The Questions and Materials for Joint Report of Obstetric Experts, including the additional assumptions described in section 3.
3 That by 30 August 2019 the experts produce for use by the court a report identifying:
(a)The matters and issues on which they are in agreement; and
(b)The matters and issues on which they differ.
4 That for the purposes of convening the conference, the conduct of the conference, the structure of the report and the role of legal representatives, the Supervised Case List Guidelines for Joint Conferences of Expert Witnesses of the Supreme Court of Queensland be adopted (the Queensland Guidelines).
5 That the cost of the conference and the report be costs in the cause.
6 Such further or other order as the court deems fit.
The application is supported by the affidavit of Gary Noel Allison sworn on 18 March 2019. In addition, the plaintiffs rely upon an Outline of Argument dated 1 May 2019 and a Bundle of Documents entitled ‘Index to Documents relating to plaintiff’s application for joint report of obstetric experts’.
The first defendant takes no position with respect to the application.
The application is opposed by the second defendant. The second defendant relies upon an Outline of Argument dated 7 May 2019 and a List of Authorities. The second defendant also provided copies of and referred to the reports of Professor Jonathan Anthony Hyett, Head of High Risk Obstetrics at the Royal Prince Alfred Hospital (Prof Hyett), dated 27 October 2014 and 22 November 2018, together with his curriculum vitae.
The application proceeded to argument before me on Friday 17 May 2019.
Background
On 20 January 2002 the first plaintiff, Joachim David Wilhelm Lange, (Joachim) was born prematurely at the Adelaide Women’s and Children’s Hospital (WCH) with a number of serious medical conditions (the medical conditions).[1] The second plaintiff, Mr Lange, is Joachim’s father. The third plaintiff, Mrs Lange, is his mother.
[1] Pleaded with particularity in the Fourth Statement of Claim at para 32.
The plaintiffs pursue claims against two defendants, Patricia Drioli (the first defendant) and the State of South Australia, the operators of the WCH (the second defendant).
The claim against the first defendant arises from a motor vehicle accident on 29 July 2001, at which time Mrs Lange was a front seat passenger in a vehicle driven by Mr Lange when it was struck from behind by a vehicle driven by the first defendant. At this time, Mrs Lange was approximately 3-4 weeks pregnant with Joachim. It is alleged that as a consequence of the collision, Joachim developed a condition known as VATER abnormality while in utero and that his premature birth was caused by a condition known as polyhydramnios, being the result of oesophageal atresia (OA) which Joachim developed as a result of the collision.
It is pleaded that ‘each’ of ‘the medical conditions’ was caused by the first defendant’s negligence.[2] Mr and Mrs Lange also claim to have suffered nervous shock as a result of the first defendant’s negligence.
[2] Fourth Statement of Claim at para 32.
The first defendant admits that her negligence caused the collision but denies that any pleaded injury, loss or damage suffered by the plaintiffs was caused by that negligence.
The claim against the second defendant comprises a claim for damages for personal injury made by Joachim, a claim in the alternative by Mr and Mrs Lange for ‘wrongful birth’ and a nervous shock claim made by Mr and Mrs Lange.
The claim as against the second defendant has been summarised by this court previously.[3]
[3] Lange & Ors v Drioli & Anor unreported.
Briefly stated, the plaintiffs’ claim has several broad limbs. At its starting point is an ultrasound examination of Mrs Lange, undertaken at the WCH when Joachim was between 19 and 20 weeks gestation (the scan).
The plaintiffs allege that Joachim’s premature birth and the consequences arising therefrom including cerebral palsy[4] were caused by the negligence of the second defendant in the performance, interpretation and reporting of the scan.
[4] Rather than ‘the medical conditions’.
It is alleged that at that time the sonographer and/or radiologist failed to note the presence of a single umbilical artery (SUA), and failed to initiate further investigations of all of Joachim’s organ systems, as they should have, because of ‘the high association between SUA and other congenital abnormalities’.[5]
[5] Fourth Statement of Claim at para 41.2.
It is further alleged that the sonographer and/or radiologist failed to note and report on an alleged lack of bowel fluid, suggestive of OA[6] and failed to recognise signs indicative of a VATER abnormality.[7]
[6] Ibid at para 41.4.
[7] Ibid at para 41.7.
It is alleged that because of these failures, Joachim and Mrs Lange did not receive treatment for polyhydramnios such that Joachim’s premature birth and cerebral palsy could have been avoided.[8]
[8] Ibid at para 41.8.
It is alleged that had a detailed further investigation of all organ systems of Joachim been ‘recommended or initiated’, or had serial or growth scans been ‘recommended or implemented’, Joachim’s VATER abnormality would have been detected.[9] In the alternative it is alleged that had a detailed further investigation of all organ systems of Joachim been ‘recommended or initiated’, or had serial or growth scans been ‘recommended or implemented’, Joachim’s OA would have been detected and could have been treated.[10]
[9] Ibid at para 42.
[10] Ibid at para 43.
The plaintiffs plead that the second defendant failed to diagnose and treat Mrs Lange adequately or at all so as to avoid or reduce the possibility of Joachim’s premature birth.[11]
[11] Ibid at para 46.3.
The second limb of the plaintiffs’ claim relates to the second defendant’s care and treatment of Mrs Lange following her presentation at the WCH on 28 December 2001. The plaintiffs allege, inter alia, that at that time Mrs Lange presented with clinical signs of polyhydramnios. It is alleged that at that time Mrs Lange’s case should have been escalated, further scans ordered and Mrs Lange should have been examined by a medical practitioner or specialist. It is alleged that the second defendant’s failure to take these steps meant Mrs Lange and Joachim continued to suffer polyhydramnios, leading to Joachim’s premature birth and resulting disabilities.[12]
[12] Ibid at paras 46B and 47.
The third limb, briefly stated, relates to an alleged failure on the part of the second defendant to advise Mr and Mrs Lange, at various stages of the pregnancy, as to the risk of the association of a SUA and other congenital abnormalities of the foetus, the likely impact on foetal/perinatal mortality and that Joachim was likely to have birth defects and be severely handicapped. It is alleged that if Mr and Mrs Lange had been so advised, they would have decided to terminate the pregnancy.
By its Second Defence dated 5 April 2018, the second defendant pleads:
1 The scan did not show any evidence of OA, trachea-oesophageal fistula (TOF), polyhydramnios or VATER association;[13]
2 Neither the scan nor anything else about Mrs Lange’s presentation during the course of her pregnancy called for or indicated any follow up treatment at all, or in the alternative, which would have prevented Joachim’s premature birth;[14]
3 That by 2001 standards, reasonable care did not require any further investigation;[15]
4 Based upon Mrs Lange’s presentation and fundal height on 28 December 2001, no further investigations were warranted; and
5 On the basis of the scan, there was no reason to believe Joachim was substantially at risk of being born with any serious physical and mental abnormalities and no reason for the second defendant to advise Mr and Mrs Lange of any such risks and/or to terminate the pregnancy, whether at the time of the scan or at any time before 28 weeks.[16]
[13] Second Defence at para 40.1.
[14] Ibid at para 40.2.
[15] Ibid at para 41.3.
[16] Ibid at para 53.
By its Notice in Response to Notice to Admit (RNTA) dated 9 November 2018, the second defendant admits, inter alia, that:
1 Three vessels in the umbilical cord cannot clearly be seen in the 32 images labelled Study 273847, being those taken by the sonographer at the time of the scan.[17]
2 If the only images captured or views made at the time of the scan are those in the 32 still images labelled Study 273847, the scan was incomplete.[18]
3 An incomplete scan requires the patient to be recalled for a completion scan.[19]
4 The purpose of a completion scan is to conduct a further assessment identifying all relevant anatomy as normal or abnormal.[20]
5 The second defendant did not perform a completion scan on 23 November 2001.[21]
6 If a SUA had been detected at the time of the scan, it would have been appropriate either to conduct further scanning on 16 November 2001 to ensure other anatomical structures were normal, or alternatively ask Mrs Lange to return for a repeat morphological ultrasound scan within several days, however the second defendant’s position is that the management of Mrs Lange’s pregnancy would not have been altered by the results of such a repeat ultrasound in the circumstances of this case.[22]
7 The earliest at which polyhydramnios is usually detected in cases of OA is at 24 weeks gestation.[23]
[17] Notice in Response to Notice To Admit (RNTA) at para 2.17.6.
[18] Ibid at para 2.18.
[19] Ibid at para 2.19.
[20] Ibid at para 2.23.
[21] Ibid at para 2.22.
[22] Ibid at para 2.24.
[23] Ibid at para 2.46.
The second defendant admits that Joachim has various physical disabilities but as to those disabilities it:
admits that the only spinal anomaly that could potentially have been identified by obstetric ultrasound scanning in the antenatal period was Joachim’s block disc at T7; [24]
[24] Ibid at para 2.30.
denies that Joachim’s triphalangeal thumb was capable of being identified by obstetric ultrasound scanning in the antenatal period; [25]
[25] Ibid at para 2.34.
denies that Joachim’s atrial septal defect was capable of being identified prior to his birth;[26]
[26] Ibid at para 2.36.
denies that Joachim’s muscular ventricular septal defect should have been identified prior to his birth;[27] and
[27] Ibid at para 2.38.
denies that Joachim’s atresia of the oesophagus with trachea-oesophageal fistula, his shorter radial bone and his metopic synostosis were capable of being identified on foetal radiology or by way of obstetric ultrasound scanning.[28]
[28] Ibid at paras 2.40; 2.41; 2.42; 2.44.
Although I am not privy to any of the reports prepared by the expert radiologists,[29] it is apparent that not only is there a dispute as to the significance of the finding of a SUA, but considerable dispute as to whether, and if so when, the majority of the physical abnormalities Joachim suffers should (and/or could) have been detected prior to his birth.
[29] Save for the reports of Prof Hyett, noting his expertise in both obstetrics and in prenatal screening and diagnosis of fetal anomalies.
The action is listed for trial before me for eight weeks commencing 21 October 2019.
The Obstetric Experts
The plaintiffs rely on the expert opinion of Professor Mike O’Connor. Professor O’Connor has been a visiting obstetrician and gynaecologist since 1982 and is the Chairman of the Patient Care and Clinical Review Committee at St George Private Hospital in Kogarah, NSW (Prof O’Connor). He has prepared two reports dated 24 August 2017 (O’Connor 1) and 25 July 2018 (O’Connor 2).
The second defendant relies on the expert opinions of Professor Con Michael, Emeritus Professor of Obstetrics and Gynaecology at the University of Western Australia (Prof Michael) and Prof Hyett.
Prof Michael has prepared two reports dated 29 January 2017[30] (Michael 1) and 5 February 2018 (Michael 2). Prof Hyett has produced two reports dated 27 October 2014 (Hyett 1) and 22 November 2018 (Hyett 2).
[30] Produced by the second defendant to the plaintiff after it received Prof O’Connor’s report dated 24 August 2017.
Prof O’Connor’s opinion, succinctly stated, is that if Joachim’s SUA was identified either on the scan, or on a complete scan taken shortly thereafter, an obstetrician should have been called in to advise on the management of Mrs Lange’s pregnancy, as the presence of a SUA made the pregnancy high risk for impaired fetal growth, fetal anomalies and an increased risk of still birth.[31] This should have included echocardiography and serial scanning after 22 weeks.[32] Further, Prof O’Connor considers that if a complete scan had been undertaken on 23 November 2001, this was an opportunity to detect both the SUA and other cardiac anomalies. If serial scanning had been undertaken, polyhydramnios would have been detected by 25 weeks, and if severe, there were a number of treatment options including amnio-reduction.[33]
[31] O’Connor 2 at p 7.
[32] O’Connor 1 at pp 7-8.
[33] O’Connor 1 at pp 9-10, noting a reference to literature stating that such treatment options were suggested for ‘severe symptomatic polyhydramnios at less than 32 weeks gestation’.
Prof O’Connor considers Mrs Lange’s presentation on 28 December 2001 was consistent with polyhydramnios, based on her complaint of abdominal bloating and the fundal symphyseal height. He stated:[34]
… It is more probable than not that had an ultrasound been performed at this stage then polyhydramnios would have been detected.
[34] O’Connor 1 at p 10.
Finally, Prof O’Connor considered Mrs Lange’s condition at the time she presented to Emergency on 19 January 2002 was consistent with polyhydramnios.[35]
[35] O’Connor 2 at p 9.
Prof Michael’s opinion was that the scan did not show a SUA. However, based on his review of the literature, he stated:[36]
… the significance of the finding of a SUA is that there may be a foetal structural abnormality and that a detailed anatomical ultrasound review of the foetus should be undertaken in order to exclude morphological abnormality.
[36] Michael 1 at p 3; see also Michael 2 at p 3, wherein he refers specifically to cardiac anomalies.
His response to a question regarding whether echocardiography should have been performed upon detection of a SUA was to the effect that, on his understanding, such an examination was undertaken as part of the scan, but he could not comment further, this not being his area of expertise.[37]
[37] Michael 2 at p 4.
Prof Michael was asked if serial growth scans should have been undertaken if a SUA was detected. His response was:[38]
… Identification of a single umbilical artery frequently prompts consideration for targeted fetal sonography particularly cardiac or renal … Where clinical growth is normal, a third trimester growth scan at 28 weeks and 34 weeks gestation solely on the basis of the finding of single umbilical artery and its possible association with fetal growth restriction may be undertaken by clinicians. This association was not universally accepted by all Obstetricians in 2001 …
[38] Michael 2 at p 2.
On the issue as to whether serial growth scans would have shown Joachim’s OA and TOF, Prof Michael noted the first such scan would not have occurred until 28 weeks in any event, and suspected the amniotic fluid volume would have been normal as at that stage due to the TOF.[39]
[39] Ibid.
As to whether VATER should have been diagnosed, Prof Michael’s response was that as no foetal abnormality was detected on the scan, ‘a further detailed morphological scan after the initial examination at 19½ weeks gestation was not necessary’. However, he goes on to say that that on the balance of probabilities ‘VATER association would not be diagnosed even in the presence of SUA’.[40]
[40] Michael 1 at p 4.
Prof Michael opined that the scan showed no evidence of polyhydramnios and had polyhydramnios been detected it would generally be treated conservatively with bed rest and support but that amniocentesis may uncommonly be necessary ‘usually after 28 weeks’, with recognised risks and complications, including preterm labour and rupture of the membranes.[41]
[41] Michael 1 at p 5 and Michael 2 at p 3.
Prof Michael did not express an opinion as to the issue of offering termination in pregnancy based on his assumption the scan showed no fetal abnormalities.
Prof Hyett’s opinion is that although the presence of a SUA has been associated with a number of conditions including chromosomal abnormality, some genetic syndromes, fetal growth restriction and fetal structural abnormalities, recent meta-analysis did not demonstrate any statistical significant increase in the risk of adverse pregnancy outcomes. He stated that most clinicians would therefore treat the finding of a SUA as a ‘minor’ marker of poor pregnancy outcome. He stated that although some authors have suggested specialist fetal echocardiography be performed when a two-vessel cord is identified, it would not be normal practice.[42]
[42] Hyett 1 at Point 5.
He would not normally recall a patient to repeat the morphology scan if a single umbilical artery was detected.[43]
[43] Hyett 2 at Point 5.
Prof Hyett’s second report deals in some detail with what abnormalities can be detected upon a 20 week scan, being an area covered by the expert radiologists in other reports. Prof Hyett outlined that in some circumstances a hemivertebrae may be potentially recognisable. He went on to say, that in 2001, had he identified a SUA on the scan, ‘and on further scanning also noted a hemivertebrae’, he would not have recommended any additional intervention in pregnancy.[44]
[44] Ibid at Point 11.
If he had identified a SUA on the scan he would have arranged to monitor fetal growth through further ultrasound scans to be conducted at 28 and 34 weeks, or alternatively monitored growth clinically.[45]
[45] Ibid at Point 12.
Prof Hyett stated that upon identifying a SUA:[46]
… It is common practice to first reassess the ultrasound findings to determine whether this is an isolated feature or occurs in association with structural anomalies …
[46] Hyett 1 at Point 5.
Prof Hyett’s opinion is that he would not have expected OA to be detected from the scan as it showed a clearly visible stomach bubble. However, he noted that OA was often associated with a tracheoesophageal fistula, meaning false negative diagnoses were not uncommon.[47] If OA was suspected, it would be normal practice to repeat an ultrasound, and an amniocentesis may be performed. He noted that if OA was detected from the scan, it would be normal practice to then undertake serial growth scans to ascertain when amniodrainage should be performed. Most typically this would occur at >28 weeks gestation.[48]
[47] Ibid at Point 6.
[48] Ibid at Point 8 and Point 9.
Prof Hyett stated that the features associated with VATER are subtle and had a SUA been identified at the time of the scan, it is unlikely that VATER would have been diagnosed.[49] He does not comment further as to whether such features may have been detected in the event of a complete scan, although he noted that the most obvious anatomical feature associated with VATER is an absent radius which can be identified upon scanning, but was not present in this case.[50]
[49] Ibid at Point 12.
[50] Hyett 2 at Point 4.
Prof Hyett stated that had a SUA been identified, some practitioners would have performed a growth scan at 28 weeks and if there was severe polyhydramnios, it would be visible at that stage.[51]
[51] Hyett 1 at Point 12.
He refers to the risks associated with amnioreduction, that most such procedures are performed at 30 or 32 weeks and states ‘(T)hese women typically continue to deliver preterm in spite of the intervention(s)’.[52]
[52] Hyett 2 at Points 13-15.
He considered it would have been inappropriate to discuss termination of the pregnancy in this case.[53]
Rule 213/Submissions
[53] Ibid at Point 18.
The Rule
Rule 213(2) states:
(2) If two or more expert witnesses are to be called to give evidence about the same, or a similar, question, the Court may, on its own initiative or at the request of a party, give one or more of the following directions –
(a)that the expert witnesses confer;
(b)that the expert witnesses produce for use by the Court a document identifying –
(i)the matters and issues on which they are in agreement; and
(ii)the matters and issues on which they differ;
(a)that an expert witness be asked to review the opinion of another expert and to state (by affidavit or in oral evidence) whether the witness wants to modify an opinion earlier expressed in the light of the opinion of the other expert;
(b)that the evidence of two or more expert witnesses be taken in a particular sequence or that they give evidence or re-examined as a group, each being asked to answer, in turn, questions relevant to the subject-matter of the action put by or on behalf of the parties to the action or the trial Judge.
…
Orders Sought
The application proposes orders being made under both DCR 213(2)(a) and (b).
The plaintiffs propose that for the purposes of any joint conference, and any joint report produced thereafter, the experts have regard to a Joint Statement of Assumptions[54] and Annotated Draft Questions (which include some further additional assumptions).[55] This proposal reflects, in part, the adoption of aspects of the Queensland Guidelines.[56]
[54] Index to Documents at pp 12-15.
[55] Ibid at pp 1-6.
[56] Ibid at pp 7-11.
Although the second defendant agreed that a joint conference of experts should be ordered, it submitted that the questions to be answered should be left to the experts or alternatively more narrowly focussed so as to ensure they properly fit with the experts’ expertise.[57] It denied there was utility in proceeding in the manner as proposed by the plaintiffs, and questioned the adoption of the Queensland Guidelines in this state, in the absence of there being any authority in that respect.
[57] Outline of Second Defendant at [9].
If the order was made, the second defendant proposed a much shorter and truncated set of questions be put to not only Prof O’Connor and Prof Michael, but also Prof Hyett, to answer.[58]
[58] Ibid at [29].
Further, the second defendant took issue with Joint Assumptions 6 and 9, being matters going to the heart of the dispute.
Joint Assumptions
Joint Assumption 6 states:
Joachim Junior’s single umbilical artery was not detected at the 20 week scan.
At para 41 of the Second Defence, this is not admitted.
At para 2.10 of the RNTA, the second defendant says that it does not admit the sonographer (Ben Khor) did not observe the SUA on the scan, and says Mr Khor does not have an independent recollection of the day in question.
At para 2.17 of the RNTA, the second defendant does not admit that the radiologist (Dr Margaret Furness), did not observe the SUA on the scan, and says she has no independent recollection of reviewing the images taken by the sonographer at the time of the scan.
However, despite the position as advanced by the second defendant, if either Mr Khor or Dr Furness observed the SUA on the scan, there is no written record to that effect.
Any objection to Joint Assumption 6, in my view, could be addressed by simply changing the wording to read:
If Joachim Junior’s single umbilical artery was detected at the 20 week scan, there is no record to this effect. [my emphasis]
Joint Assumption 9 needs to be read in conjunction with Joint Assumptions 7 and 8 which state:
7. The twenty week scan was incomplete.
8. An incomplete scan required that the patient be recalled and a further scan conducted identifying all relevant anatomy as either normal or abnormal.
9. No such scan was conducted.
As previously outlined, in the RNTA the second defendant has admitted;
· that if the only images captured or views made at the time of the scan are those in the 32 still images labelled Study 273847, the scan was incomplete;[59]
· an incomplete scan requires the patient to be recalled for a complete scan;[60]
· the purpose of a completion scan is to conduct a further assessment identifying all relevant anatomy as normal or abnormal;[61] and
· the second defendant did not perform a completion scan on 23 November 2001.[62]
[59] RNTA at para 2.18.
[60] RNTA at para 2.19.
[61] RNTA at 2.23.
[62] RNTA at 2.22.
Insofar as there may be more than 32 still images, there is no documentary evidence to this effect. Ben Khor has no independent recollection of the day of the scan. Dr Furness has no independent recollection of viewing the images.
Any objection to current Joint Assumption 9 could be addressed by simply changing the wording of the Joint Assumptions to read:
7. The sonographer kept and created 32 still images at the time of the 20 week scan. If they were the only images captured or views made, then the scan was incomplete.
[my emphasis]
8. As per current draft.
9. As per current draft.
The Questions
The Annotated Draft Questions, cover three distinct, but necessarily related, topics:
Investigation and Management following SUA diagnosis.
Development of OA and polyhydramnios.
Monitoring of Clinical Presentation (relevant to the attendance on 28 December 2001).
Counsel for the plaintiffs submitted that unless the orders were made as sought in the application, there was a real risk of there being a disconnect in the expert evidence at trial.
It was submitted that despite the concessions made by the second defendant in the RNTA with respect to the necessity for a ‘completion scan’ to be undertaken, Prof Michael had not addressed, in any particular detail, whether Mrs Lange’s pregnancy should have been managed differently if a completion scan had been undertaken and demonstrated a SUA and did not exclude, or alternatively showed, structural anomalies consistent with the defects Joachim later developed.
It was submitted that Prof Michael’s opinion on that issue was presently unknown. Further, it was submitted that a proper consideration of this issue was also likely to inform Prof Michael’s opinion as to whether Mrs Lange’s presentation as at 28 December 2001 called for any different management and/or what if any advice ought to have been given with respect to termination, being matters relevant to the third category of questions.
The first category of questions posed deal with various hypotheses relating to whether Mrs Lange’s pregnancy should have been managed any differently, had the SUA been detected in isolation or in existence with other potential abnormalities.
Although not expressly submitted, it was inferred that if the application was granted, Prof Michael would be required to consider those issues, and, that in the context of a joint meeting of experts, it may become apparent that there is a level of agreement amongst the experts, which as yet remains unknown.
It was submitted that Prof Michael’s opinion simply assumed, at the outset, that the SUA was not able to be diagnosed from the scan, and proceeded without consideration of any alternative hypothesis.
As to the second category of questions, the plaintiffs submitted that Prof Michael had not addressed the progressive detectability of either OA or polyhydramnios, had Mrs Lange’s pregnancy been managed differently. Further, while Prof Michael seemed to accept the association generally between OA and polyhydramnios, he had not accepted that in this case for anatomical reasons. It was submitted that Prof O’Connor disagreed with that opinion, but that Prof Michael had not subsequently addressed Prof O’Connor’s opinion in that respect.
As to the third category of questions, it was submitted that Prof Michael had proceeded on a factual basis which ignored Mrs Lange’s recollection of the events on 28 December 2001 and which were arguably inconsistent with that recorded in the hospital notes.
The process as agitated by the plaintiffs expressly excluded the involvement of Prof Hyett. It was submitted that his reports dealt primarily with radiological issues and that to the extent he had dealt with obstetric issues his involvement in the process would be ‘unnecessary and unhelpful’. Precisely why was not canvassed in any detail.
The second defendant argued that the orders sought lacked utility having regard to the particular circumstances of this case.
Emphasis was placed on the degree of specificity and hypotheticality proposed by the application having regard to the assumptions sought to be relied upon. It was submitted that the orders sought were not appropriate in a case such as this where there was a fundamental dispute between the experts on the critical issues of whether a SUA should have been identified on the scan, whether this was a material finding at the relevant time and if so, whether such a finding should have resulted in different management of Mrs Lange’s pregnancy.
The second defendant argued it was for the plaintiffs to demonstrate the utility in the orders being made, and that there was no utility where there were clear, considered divergences of opinion, or where considerable expense was likely to be devoted to the process.[63]
[63] Boardman v South Eastern Sydney Area Health Service & Ors [2001] NSWSC 930, [25]-[27] per Studdert J, Spasovic & Anor v Sydney Adventist Hospital & Anor [2002] NSWSC 164 at [32], Booth v Di Francesco [2002] NSWSC 154 at [25]-[27].
Further, it was submitted that there was a dispute as to certain factual matters, particularly the history relating to Mrs Lange’s attendance on 28 December 2001, which impacted on the utility of the process.
Consideration
The objects of the Rules include; to facilitate and encourage the resolution of civil disputes by agreement between the parties, to promote efficiency in dispute resolution in a manner consistent with the interests of justice and to minimise the cost of civil litigation.[64]
[64] DCR3.
It is with those aspects in mind that the application of DCR 213 in any case should be considered.
Rule 213 is intended to assist the parties and therefore the court to focus its attention on those aspects of a dispute which are truly the subject of disagreement and require judicial determination. As acknowledged by Schmidt J in Willett v United Concrete Pty Ltd & Anor,[65] the process foreshadowed by the Rule will require the experts to spend more time prior to trial identifying what is genuinely the subject of disagreement between them, thus increasing costs at that stage of the litigation. However, if utilised in appropriate circumstances, that process should result in a reduction in hearing time (and arguably therefore costs).
[65] [2009] NSWSC 957 at [55]
Further, in serving to crystallise the issues, the use of DCR 213 may assist the parties to better understand the likely strengths and weaknesses of their respective positions and thereby assist in the potential pre-trial resolution of the dispute. Moreover, if used correctly, the process should assist the trial judge to gain a better understanding of what the real issues are as between the experts and why.
The process envisaged by DCR 213 is designed to ensure the trial process runs efficiently and effectively such that time is not wasted canvassing matters in evidence with experts which are not genuinely in dispute.
It is implicit that in the commissioning of a joint report, the experts are required to adopt the same assumptions and to express their opinion accordingly. The risk of there being a ‘disconnect’ in the sense that experts do not consider a particular factual basis in expressing their opinion, is avoided. Both parties then achieve the benefit of knowing, in advance of trial, the extent to which an expert’s stated position would have been different had alternative assumptions and/or other specific questions been put to that witness. The process may therefore assist the parties to reach a settlement before a hearing.
This is a complex case, involving numerous experts with different specific areas of expertise. The expert evidence across the various disciplines is inextricably linked in the sense that findings made with respect to one area of expertise will necessarily impact on findings made on matters involving other expertise.
As is clear from the above analysis of the opinions of Professors O’Connor, Michael and Hyett, the findings made by the court with respect to the radiological evidence are likely to provide the foundation for its subsequent findings with respect to the obstetric evidence.
Before considering whether, and if so how, Mrs Lange’s pregnancy should have been managed in any different way, the court will need to determine, inter alia, whether a SUA should have been capable of detection at the time of the scan, and, if the scan was incomplete, whether a SUA should have been capable of detection on a ‘completion scan’, if undertaken shortly thereafter. It will also need to make a finding as to the significance of such a finding as at 2001.
There is a clear dispute between the experts as to the significance of the finding of a SUA as at 2001, and what, if any additional investigations should have been undertaken had a SUA been detected. Given that disagreement, it is unlikely that a conference of experts will resolve that significant issue.
The second defendant agrees that no completion scan was undertaken. The court will also need to determine whether any of Joachim’s other abnormalities should have been capable of detection on a ‘completion scan’, if one had been undertaken and if so, what abnormalities. If it makes a finding that particular abnormalities should not have been excluded or should have been detected, it then needs to consider whether Mrs Lange’s pregnancy should have been managed differently, and if so, how.
Upon a careful analysis of his report, Prof Hyett seems to have proceeded on the assumption that the SUA was an isolated finding, however this was in the context of expressing his own opinion as to what abnormalities are capable of being detected at a morphological scan undertaken at 20 weeks.
It is unclear as to the extent to which, or the basis upon which, Prof O’Connor has assumed a SUA was not an isolated finding in this case.
Although Prof Michael has proceeded on the basis a SUA could not be detected on the scan and that no other structural abnormality of the foetus was detected at the time of the scan, he has also assumed that various cardiac abnormalities suffered by Joachim would not have been capable of detection in utero.
Prof Michael was asked:[66]
If a single umbilical artery had been detected in 2001, whether this should have prompted further investigation for potential cardiac abnormalities and if so what investigations?
[66] Michael 2 at p 3.
In providing his response, Prof Michael proceeded on the understanding (and therefore the assumption) that Joachim’s small atrial defect, patent foramen ovale and small ventricular septal defect were not detectable at a pregnancy mid trimester morphological scan, and, as previously stated, went on to say that he did not have expertise in the issue of fetal echocardiography.
The court’s findings on this issue will necessarily involve an analysis of the radiological evidence, which is not presently before the court. There is a risk, based on the present status of the expert evidence, that an obstetric expert has not proffered an opinion in writing having regard to the factual basis that is ultimately determined by the court having regard to the radiological evidence. However, these are matters that could be addressed by the parties, insofar as they consider it prudent or necessary, by obtaining further reports from the experts. Insofar as any of the obstetric experts have proceeded on a factual basis which is inconsistent with that as ultimately found by the court on these issues, their opinions will be of limited, if any, assistance to the court.
As an aside, I also note that the manner in which paras 42 and 43 of the Fourth Statement of Claim are currently drafted, using the use of terminology ‘recommended or initiated’ and ‘recommended or implemented’ when referring to further investigations and serial or growth scans, adds a further level of complexity to the consideration of this issue.
While a conference of experts may promote discussion with respect to this issue, I am not satisfied that questions 1.2 and 1.3 in their present format will assist to better define the areas of agreement and/or disagreement between the experts. For example, question 1.2 is premised on an assumption that a completion scan ‘did not exclude morphological abnormalities’. Question 1.3 refers generally to ‘abnormalities found in his spine’. Unless the experts are proceeding ad idem as to precisely what such abnormalities should not have been excluded, or what spinal abnormalities should have been detected, their opinions will remain premised on a different factual basis.
As to question 1.4, this assumes a VATER diagnosis was possible in utero. Prof Michael opined:[67]
Data indicates that in 2/3 of such foetuses SUA is an isolated finding and not associated with morphological abnormality. Hence on the balance of probabilities VATER association would not be diagnosed even in the presence of SUA.
The ultrasound examination undertaken on 16 November 2001 describes the foetal anatomy at 19½ weeks gestation in detail and no structural abnormality is identified.
Even if a SUA had been identified this report would indicate that VATER association was not present.
The quality and detail of the reporting is of the standard I would expect of a tertiary obstetric hospital.
[67] Michael 1 at p 4.
Prof Hyett referred to the difficulty in diagnosing VATER if the most obvious anatomical feature, the absent radius, was not present, as occurred in this case.[68] He also noted that VATER cannot be identified through amniocentesis and molecular genetic testing.[69]
[68] Hyett 2 at Point 4.
[69] Hyett 1 at Point 5.
Prof O’Connor was asked to proceed leaving aside the question of whether or not VATER should have been detected.[70]
[70] O’Connor 1 at p 7.
In my view, question 1.4 as presently worded, it being silent on the important issues as to ‘when’ and with what degree of certainty any such diagnosis could and should have been made, is unlikely to result in agreement as between the obstetric experts at any joint conference.
Turning to the second category of questions, although these specific questions have not been asked of any of the obstetric experts to date, by reference to the reasoning adopted by each of the experts, I also consider it unlikely that a joint conference will assist in the experts reaching agreement on the critical issue as to if and when, in this case, OA and/or polyhydramnios should have been detected.
Neither Prof Michael nor Prof Hyett considered the scan showed evidence of OA, and Prof O’Connor did not express an opinion on this issue, but did state that polyhydramnios would have been detected on a serial scan at 25 weeks. Both Prof Hyett and Prof Michael referred to the possibility of amniocentesis being performed, but usually at 28 weeks gestation (or later).
As to the third category of questions, the plaintiffs sought that the experts be directed to make further factual assumptions, based not only on what Mrs Lange claims occurred prior to and at the examination on 28 December 2001, but importantly:[71]
That Joachim Junior’s single umbilical artery had been diagnosed in late November, with or without other anomalies.
[71] Index to Documents at p 3.
Numerous factual findings will need to be made by the court when determining the issue of whether Mrs Lange’s pregnancy should have been managed differently following her presentation on 28 December 2001. These relate not only to the radiological evidence and what, if any, other abnormalities should have been detected in the management of her pregnancy prior to that date, but to what in fact occurred on that day and in the days immediately prior thereto. A myriad of different factual findings are potentially available on the evidence. In my view, it is not appropriate for the experts to be asked to consider such a myriad of hypothetical scenarios in the forum of a joint conference.
The Queensland Guidelines at points 3.3 and 3.4 state:
The questions to be answered should be those specified by the Court or those agreed by the parties as relevant.
The questions to be answered should be framed to resolve an issue or issues identified as being in dispute on the pleadings. If possible, questions should be capable of being answered Yes or No, or (if not) by a very brief response.
I have already expressed my concerns with respect to some of the questions as posed by the plaintiffs. It is apparent that very few of the proposed questions are capable of being answered either ‘Yes’ or ‘No’ and in most circumstances, they require a detailed response.
The draft questions posed by second defendant avoid an analysis of how the pregnancy should have been managed any differently had a completion scan been undertaken, which is a critical issue in this case.
I have attempted to undertake the task of drafting a list of questions that I considered may achieve the objects of DCR 213. That task was not possible in the absence of a proper understanding of the views of the radiological experts.
After very careful consideration, I have reached the conclusion that the objects of the Rules cannot be achieved by the granting of the application in its present terms. Further, having regard to the divergent views of the obstetric experts as to the significance of the finding of a SUA as at 2001, and in the absence of any agreed position as to what, if any, structural abnormalities either should have been detected or should not have been excluded upon any completion scan, had one been undertaken, I consider it unlikely that a set of questions, of the type foreshadowed by the Queensland Guidelines, can be devised which will achieve the objects as intended by the Rules, namely to minimise costs, make the conduct of this case more efficient or assist in the resolution of the matter.
As such, I am not satisfied that this is an appropriate case to make the orders as sought.
However, I am mindful that the second defendant agreed a conference of the obstetric experts should be ordered. If there is to be such a conference, in my view Prof Hyett should be included having regard to his areas of expertise. I am not satisfied there is any reasonable basis for him to be excluded.
Further, it may be appropriate for the Joint Statement of Assumptions, with the proposed amendments as outlined earlier in this ruling, to be made available to the experts for the purposes of any such conference.
However, in the absence of the parties reaching agreement as to a list of questions to be considered by the experts, any such conference may be confined to a discussion between the experts as to how and why their opinions, as presently stated, differ and/or on what matters they are in agreement.
Orders
1 The application is dismissed.
2 I will hear the parties as to any further orders sought and the question of costs.
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