Molnar v Kumar
[2012] NSWDC 66
•30 April 2012
District Court
New South Wales
Medium Neutral Citation: Molnar v Kumar [2012] NSWDC 66 Hearing dates: 20/04/2012 Decision date: 30 April 2012 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Notice of motion dismissed.
2. Plaintiff's costs be costs in the proceedings.
Catchwords: Procedure - application seeking dismissal of proceedings under UCPR r 31.36 - content of experts' reports in professional negligence claims - whether plaintiff complied with r 31.36 - requirement that expert's report "support" plaintiff's case Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Fan v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 123
Salzke v Khoury [2009] NSWCA 195Category: Interlocutory applications Parties: Shirin Molnar (plaintiff)
Dr Damodaran Prem Kumar (defendant)Representation: Mr R Weinstein SC (plaintiff)
Mr M Hutchings (defendant)
Carroll & O'Dea Lawyers (plaintiff)
McCabe Terrill Lawyers (defendant)
File Number(s): 2011/382033 Publication restriction: No
Judgment
A. Introduction
These proceedings involve a claim for medical negligence. The defendant has filed an application seeking dismissal of the proceedings. He relies on rule 31.36 of the Uniform Civil Procedure Rules 2005 ("UCPR").
B. Background
The plaintiff developed a wound infection following a tubal ligation and removal of an intra-uterine device by a medical practitioner in March 2007. Further operations related to the wound infection followed: two by the same doctor then three more operations by the defendant, four by a third doctor, and finally one by a fourth practitioner, eleven operations in all.
In paragraph 30 of the statement of claim the plaintiff alleges that the defendant was negligent in six respects:
(a)Prior to performing a surgery on the plaintiff, failing to order a CT scan of the plaintiff's abdomen with contrast, a barium follow-through study, virtual colonoscopy or sonogram;
(b)Prior to the Fourth Operation; failing to diagnose an entero-cutaneous fistula in June 2007 by ordering a CT scan of the plaintiff's abdomen with contrast, a barium follow-through study, virtual colonoscopy or sonogram;
(c)Prior to the Fourth Operation, failing to institute conservative management for an entero-cutaneous fistula in June 2007 in the form of nil by mouth, total parenteral nutrition and antibiotics until such time as the fistula closed;
(d)In the event of failure of conservative management after six weeks to eradicate the entero-cutaneous fistula, failing to perform a laparotomy to excise the entero-cutaneous fistula;
(e)Failing to record the fact that he had perforated the small bowel during the Sixth Operation;
(f)Failing to diagnose and excise an entero-cutaneous fistula during the Sixth Operation.
The plaintiff alleges in paragraph 31 of the statement of claim that this breach of duty caused damages particularised as follows:
(a)The Fourth Operation;
(b)The Fifth Operation;
(c)The Sixth Operation;
(d)The Seventh Operation;
(e)The Eighth Operation;
(f)The Ninth Operation;
(g)The Tenth Operation;
(h)The Eleventh Operation;
(i)Incisional hernia;
(j)Entero-cutaneous fistula of the nature and extent it had reached when finally diagnosed on 6 February 2008;
(k)Intra-abdominal and pelvic adhesions of the nature and extent they had reached when the entero-cutaneous fistula was finally diagnosed on 6 February 2008;
(l)Small bowel obstruction;
(m)Disfigurement and scarring;
(n)Anxiety;
(o)Depression;
(p)Adjustment disorder.
The plaintiff has filed and served two reports of Professor David L Morris ("Morris Reports") that contain expert opinion in relation to the plaintiff's treatment and injuries. These reports were contained in an affidavit of Jonathan Patrick Newby sworn 14 March 2012, which was read on the application.
The defendant asserts that the Morris Reports do not support the plaintiff's claim in the manner required by UCPR 31.36.
C. UCPR 31.36 and Salzke v Khoury
Rule 31.36 of the UCPR provides as follows:
31.36 Service of experts' reports in professional negligence claims
(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting:
(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and
(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and
(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.
(2) In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert's report or experts' reports supporting the claim.
(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.
(4) Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial.
(5) Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion.
(6) Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence:
(a) has been filed and served under subrule (1) or (2), or
(b) has been served pursuant to directions given under subrule (4).
Other provisions in Part 31 bear upon the proper construction of rule 31.36. Rule 31.18 contains definitions as follows:
expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.
...
expert's report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based.
Rule 31.27 specifies the mandatory contents of an expert's report:
31.27 Experts' reports
(1) An expert's report must (in the body of the report or in an annexure to it) include the following:
(a) the expert's qualifications as an expert on the issue the subject of the report,
(b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),
(c) the expert's reasons for each opinion expressed,
(d) if applicable, that a particular issue falls outside the expert's field of expertise,
(e) any literature or other materials utilised in support of the opinions,
(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,
(g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).
(2) If an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report.
(3) If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.
(4) If an expert witness changes his or her opinion on a material matter after providing an expert's report to the party engaging him or her (or that party's legal representative), the expert witness must forthwith provide the engaging party (or that party's legal representative) with a supplementary report to that effect containing such of the information referred to in subrule (1) as is appropriate.
It follows from these provisions that an expert's report utilized by the plaintiff for the purpose of satisfying the requirements of rule 31.36 must meet the definition of an expert's report in rule 31.18 and must contain the matters specified in rule 31.27. Although in the course of the application there was criticism of the Morris Reports, I did not understand the defendant to be contending that the Morris Reports were not expert reports, or that rule 31.27 was not satisfied by the Morris Reports.
Unassisted by authority, I would conclude that rule 31.36 requires the plaintiff, at the time of commencing proceedings, to file an expert's report (or expert's reports) that supports the plaintiff's claim on three of the elements of the cause of action: breach of duty, damages and causation. The repeated use of the conjunctive "and" between paragraphs (a) and (b) and between paragraphs (b) and (c) in subrule (1) of rule 31.36 appears to me to demand that construction.
The Court of Appeal in Salzke v Khoury [2009] NSWCA 195 discussed the proper application of rule 31.36, in the following terms:
60 UCPR 31.36(1) requires a plaintiff in a professional negligence action to disclose, when the statement of claim is filed, the expert opinion on which the claim is based. The rule, however, is not inflexible. UCPR 31.36(1) expressly provides that the court may order "otherwise". UCPR 31.36(4), (5) and (6) contemplate that orders may be made after the claim has been commenced relating to expert evidence not filed and served at the time the claim was commenced.
61 Other aspects of the rule are to be noted. Firstly, the rule cannot be construed to mean that an individual expert's report must include an opinion supporting all the matters referred to in sub-rule 1(a), (b) and (c). Those matters would usually involve fundamentally different categories of expertise. The rule could not be intended to preclude the case of an expert's report relevant only to one or two of those matters. Accordingly, the fact that opinions in an expert's report support only one or even part of one of the matters in paragraphs (a), (b) and (c) does not detract from the use that may be made of that report to support a plaintiff's claim for the purposes of UCPR 31.36(1). The opinions expressed in an expert's report as to any one or part of the elements of breach of duty of care, or damages or causation, may assist in providing the support contemplated by the rule. The opinions may only support a single link in the chain that constitutes the plaintiff's case. Opinions of that kind are nevertheless relevant in determining whether there has been compliance with UCPR 31.36(1).
62 Secondly, the opinions in the expert's report merely have to "support" one or more of the matters referred to in sub-rule 1(a), (b) or (c). The opinions do not have to "prove" anything. A report, at the stage that it is considered for the purposes of UCPR 31.36, is not evidence.
63 Thirdly, due regard must be had to the fact that UCPR 31 (the rule dealing with expert evidence) contemplates that experts will prepare their own reports (see, for example, UCPR 31.23(3) and clause 5(2) of the Expert Witness Code of Conduct (schedule 7 to the UCPR). This is consistent with the principle that expert evidence presented to the court should be the independent product of the expert: National Justice Compania Naviera SA v Prudential Assurance Company Limited (the "Ikarian Reefer") [1993] 2 Lloyds Rep 68. Thus, the report should be construed benevolently and not as if it were a pleading or an affidavit or even a statement of a witness prepared by a lawyer.
64 Fourthly, the power under UCPR 31.36(3) to dismiss the whole or any part of the proceedings is based on non-compliance with sub-rule (1). The court, in dealing with an application under UCPR 31.36(3), is not concerned with an application for dismissal of the proceedings for want of prosecution or an application for summary judgment by the defendant.
...
70 It would be entirely open to a plaintiff to lead other evidence, not of an expert nature, which supplements the material contained in the reports filed under r 31.36(1) in such a way as to prove his or her case. This must be borne in mind when considering compliance with UCPR 31.36(3). Thus, evidence by eyewitnesses may supplement expert opinion to establish breach of duty of care. The plaintiff may adduce circumstantial evidence that may, alone, or in combination with expert evidence, establish causation in a specific case. The fact that experts do not infer causation on a balance of probabilities does not mean that a court may not: Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [143]-[144] per Spigelman CJ. A plaintiff may rely on his or her own evidence to prove damage or to supplement evidence given by experts. Accordingly, a plaintiff may well comply with rule 31.36(1) even though the opinions expressed in the reports filed do not deal with each and every element of the plaintiff's case.
...
82 Vagueness in the statement of claim is not a reason to hold that expert reports that are capable of falling within the particulars of negligence pleaded should be held not to comply with UCPR 31.36(1). There are other remedies available to a defendant should it wish to contend that it is embarrassed at the vagueness of the pleading.
...
94 A principal purpose of UCPR 31.36 is to ensure that the case gets to trial with both parties fairly apprised of the nature of each other's case at the earliest reasonable opportunity. A practical approach should be taken. I do not intend to convey the impression that the failure by Ms Salzke to provide medical reports dealing with the nature of her injuries was trivial. But, practically speaking, I do not think that the omission to provide those reports at the stage the Registrar was dealing with the matter caused the respondents any prejudice. I would add that, in dismissing Ms Salzke's action, the Registrar failed to use her powers in a "proportional" way and did not bear in mind that the dismissal of an action is "an extreme measure to be taken as a last resort": Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [46] per Allsop P and [52] per Young JA.
95 In summary therefore, I consider that the reports before the Registrar supported Ms Salzke's case as to breach of duty and causation. To the extent that Ms Salzke did not comply with UCPR 31.36(1) in regard to the damages she suffered, I do not think that that non-compliance was material. In my opinion, the Registrar erred in the respects set out above and in holding to the contrary.
I do not read these passages as propounding a construction of rule 31.36 different from that set out in paragraphs 10 and 11 above. That one expert report does not deal with all of the matters in paragraphs (a), (b) and (c) but nevertheless "may assist in providing the support contemplated by the rule" (see Salzke at [61]) does not indicate that the filed expert reports, taken together, can satisfy the requirements of subrule 31.36(1) without providing support for each of paragraphs (a), (b) and (c).
Nor does the final sentence in paragraph [70] of Salzke - that "a plaintiff may well comply with rule 31.36(1) even though the opinions expressed in the reports filed do not deal with each and every element of the plaintiff's case" - indicate a lesser test for compliance with rule 31.36. Paragraph [70] of Salzke is concerned with proof of the elements of the case, not with whether there is "support" for those elements. In any case, establishing a duty of care is an element of the plaintiff's case but this element need not be the subject of a supporting opinion under UCPR 31.36.
The holding of the Court of Appeal in Salzke at [95] indicates that rule 31.36 requires that each of paragraphs (a), (b) and (c) of subrule 31.36(1) must be supported by an opinion in the expert reports. The Court of Appeal found that the reports served:
"...supported Mrs Salzke's case as to breach of duty and causation. To the extent that Mrs Salzke did not comply with UCPR 31.36(1) in regard to the damages she suffered, I do not think that that non-compliance was material".
This passage confirms that if no opinion supports the question of damages, then there is a non-compliance with rule 31.36. Compliance requires compliance with each of the paragraphs in UCPR 31.36(1), not merely one or some of them (although immaterial non-compliances might be excused).
A related question arises in relation to rule 31.36. Where there are multiple breaches of duty alleged, must the expert's reports support each of the particulars in order to comply with rule 31.36? In the present case the pleading alleges a breach of duty, with six particulars of the breach. In submissions the parties at my request sought to consider each of the particulars. This is a useful exercise in assessing whether the expert report contains an opinion supporting the breach of duty alleged.
However, I have concluded that the words of rule 31.36 do not require the expert opinion to support each particular of the breach of duty, only that it supports the breach alleged. The purpose of rule 31.36 as set out in the passages from Salzke quoted above, would not be enhanced by a construction requiring support for every particular. The holdings in Salzke at [61] that opinions in an expert report could provide support for "part of one of the matters in paragraphs (a), (b) and (c)" and at [70] that the expert opinions "need not deal with each and every element of the plaintiff's case" confirms this construction of rule 31.36.
The position is the same with damages. There is no requirement under the rule for opinions in expert reports to support every particular of damages, although the parties again argued the matter in this way before me. The words "general nature and extent of damage" used in UCPR 31.36(b) militates against such an approach.
D. Support from the Morris Reports
The first Morris Report contains the opinion at page 26 of the affidavit that:
"..I believe Dr Kumar should have done the investigations above that is contrast studies of the gut and the CT scan. He did [sic] do this and just repeated the operative drainage. I believe this was below the level of conduct expected of a general surgeon in this country".
Mr Weinstein, who appeared for the plaintiff, submitted that the absence of the word "not" was an obvious typographical error and that this opinion gave support to the allegation of breach alleged in paragraph 30(a) of the statement of claim. I am inclined to agree. Mr Hutchins, who appeared for the defendant, did not submit that I should find otherwise.
The plaintiff also relied upon a question and answer in the first Morris Report as supporting the breach particularised in paragraph 30(a):
2.By the end of June 2007 when Ms Molnar had undergone three operations for drainage of the infection without improvement, should an ordinary skilled general surgeon have then carried out further investigations and ultimately performed a laparotomy to ascertain the cause of her on-going problems? If so, why?
Yes I believe that further investigations were mandated in June 2007 and these investigations would have included a CT scan and a small bowel follow through as well as a virtual colonoscopy.
The defendant argued that this passage referred to a time after the first operation by the defendant, whereas the particulars expressly state that the breach occurred "prior to [the defendant] performing any surgery on the plaintiff".
It is clear that the defendant first performed surgery on the plaintiff on 4 June 2007, according to the statement of claim.
It is apparent that the timing inherent in the question is not adopted by the answer. The question refers to "by the end of June 2007". But the opinion expressed that the "investigations were mandated in June 2007", not at or after the end of June 2007. To find otherwise would be to "scrutinise too finely" and not "benevolently" the expert opinion: see Salzke at [123], [61], and also Fan v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 123 at [23]. The subsequent question 3 and its answer read:
3.If the above investigations and laparotomy had been performed by the end of June 2007, is it more likely than not an enterocutaneous fistula would have been discovered?
Yes.
This supports the inference that Professor Morris' opinion was that the investigations should have been occurring during June 2007.
This same point was raised by the defendant in relation to particular (b) in paragraph 30 of the statement of claim. In my view it fails for the same reason.
Apart from this challenge based on the date in question 2, the defendant also submitted that the Morris Reports provide no support for clause 30(c) of the statement of claim:
"...failing to institute conservative management for an entero-cutaneous fistula in June 2007."
To support particular 30(c) the plaintiff relied on question 4 in the Morris Reports and its answer, which reads as follows:
4.What treatment should then have been instituted to manage the enterocutaneous fistula?
The treatment of an enterocutaneous fistula depends on a number of factors. Sometimes intra-abdominal sepsis mandates laparotomy and cleaning out the abdomen, but in a chronic situation like this the choices are between an attempt at conservative therapy which entails nil by mouth, perentral nutrition and the use of subcutaneous Somatostatin. I normally use this for six weeks before considering surgery, however in a patient that is already had a chronic fistula the chances of this working are much less and the alternative treatment which I would have favoured in this case would have been to operate.
In my opinion, the defendant's challenge has merit. The report indicates that in the circumstances of the present case, Professor Morris would have favoured surgery rather than conservative management. This opinion is also found in the answer to question 2:
"...Once there had been a demonstration of a fistula then surgery for this would have been required".
In circumstances where the report advocates surgery rather than conservative management, it is difficult to accept that the report contains "an opinion supporting...the breach of duty of care" particularised in the manner set out in particular (c) of paragraph 30 of the statement of claim.
However, other comments of Professor Morris support a period of conservative management. At question 5, Professor Morris answers:
"I believe that in June 2007 it was only 4 months post operatively and a conservative approach may well have worked. I would certainly have discussed this with the patient and offered this opinion. If conservative therapy had not been successful within six weeks, I would have recommended surgery at this time.
In the result, there is some support for the allegation in the statement of claim, although it is limited and to some extent at least apparently contradicted by other comments in the report. I will return to this matter later in these reasons.
Particular (d) to paragraph 30 of the statement of claim alleges a failure to perform a laparotomy to excise the entero-cutaneous fistula (if conservative management was unsuccessful). Some support for this particular is found in the answer to question 5, quoted at paragraph 31 above.
The defendant also complains about the lack of support for the allegation in (e) of paragraph 30 that the defendant breached his duty of care by failing to record the fact that he had perforated the small bowel. This allegation appears to me to have three components, that the defendant perforated the small bowel, that he failed to record it, and that this failure amounted to a breach of duty. The report does not in express terms deal with the third component but it does deal with the first two. The answer to question 6 states:
"...I believe that it is very likely that Dr Kumar damaged the small bowel when he was operating and repaired it but this was not recorded in the operation notes".
And in answering question 8, Professor Morris affirms that the defendant ought to have checked whether there had been a perforation of the small bowel. In the answer to question 7 Professor Morris also states:
"...I believe that it is more likely that he damaged the small bowel during this dissection".
Accordingly, the report does contain an opinion supporting the particular of breach of duty, because it supports two of the three components of that breach.
The final particular of breach - at paragraph 30 particular (f) - is also the subject of complaint. It appears to me that the assertion of a failure to diagnose the fistula is supported to a limited extent by Professor Morris in answer to question 7:
"...if there was a pre-existing small bowel fistula at this time he certainly failed to diagnose it".
Support can be found for the allegation of failure to excise the fistula in the answers to question 2 and 4 that surgery was the preferred treatment for the fistula.
The Morris Reports also support the allegation in paragraph 31 of the statement of claim that the damages particularised resulted from the breach alleged. The answer on page 29 of the affidavit provide an opinion that it was "likely", "more likely than not" the problems of intra-abdominal adhesions and the entero-cutaneous fistula would have been "much less". In my view this satisfies the requirements of rule 31.36(1)(b) and (c), particularly as (b) of the rule only requires support for the "general" nature and extent of damage.
For the reasons which appear above, I am of the view that the Morris Reports when construed benevolently include an opinion supporting the breach of duty of care, causation, and the general nature and extent of damage. As a consequence, the notice of motion must be dismissed.
However, it is apparent from these reasons that a comparison of the Morris Reports and the statement of claim reveals a number of confusing and unsatisfactory aspects. First, there are assertions in the statement of claim that appear not to reflect opinions in the Morris Reports. I have identified one example of the allegation of a failure to institute conservative management (at paragraph 30(c) in the statement of claim) whereas the report contains opinions favouring surgery.
Secondly, the questions in the report in some respects seem to conflict with the statement of claim. An example is that the defendant is alleged in the sixth operation (at paragraph 19 of the statement of claim) to have, amongst other things, performed "Division of adhesions". Yet question 7 of the report seeks an opinion suggesting that the defendant failed to "divide adhesions".
Thirdly, there are apparent errors in the reports. The absence of the word "not" in the second paragraph of page 26 of the affidavit and the date in question 2 on page 27 of the affidavit are examples.
The confusion that these matters create is likely to have led to this application. However, the Court of Appeal has stated in Salzke at [82] that there are other remedies available to a defendant should it wish to contend that it is embarrassed at the vagueness of the pleading or, I am disposed to add, the report. What steps, if any, the defendant seeks to take to obtain these remedies is a matter for him. However, I have taken into account these matters in determining the appropriate order for costs.
For these reasons, I propose to order that the notice of motion be dismissed and that the plaintiff's costs of the motion be costs in the proceedings.
Orders are therefore:
1. Notice of motion dismissed.
2. Plaintiff's costs be costs in the proceedings.
**********
Decision last updated: 10 May 2012
0
2
1