Monash Health v Carina
[2024] VSC 486
•21 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 03877
| MONASH HEALTH | Plaintiff |
| v | |
| SOPHIA CARINA & ORS | Defendants |
| (according to the attached Schedule) |
---
JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2024 |
DATE OF JUDGMENT: | 21 August 2024 |
CASE MAY BE CITED AS: | Monash Health v Carina & Ors |
MEDIUM NEUTRAL CITATION: | [2024] VSC 486 |
---
ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Decision of Medical Panel under Wrongs Act 1958 (Vic) Part VBA – Whether Medical Panel impermissibly assessed the claimant’s injury beyond the scope of the claim – Whether the Medical Panel impermissibly took into account secondary conditions – Whether there was evidence of a primary psychiatric injury before the Medical Panel – Whether the Medical the Panel’s decision was unreasonable or illogical – No errors found – Application dismissed – Wrongs Act 1958 (Vic) ss 28LB, 28LJ.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Hooper Ms H Daniel | Meridian Lawyers |
| For the First Defendant | Mr P Czarnota Mr P Santamaria | Arnold Thomas & Becker Lawyers |
HIS HONOUR:
On 28 June 2023 a medical panel (‘the Panel’) determined that Ms Sophia Carina had a degree of psychiatric impairment resulting from the injury which she alleged in her claim which satisfied the threshold level specified in s 28LB of the Wrongs Act 1958 (Vic) (‘the Act’).
Monash Health seeks orders in the nature of certiorari quashing the determination made by the Panel and an order remitting the matter to a differently constituted medical panel.
For the reasons which follow, Monash Health’s application for judicial review should be dismissed.
Ms Carina’s claim
Ms Carina claims that she has suffered injury as a result of Monash Health’s negligence or its breach of an implied contractual term to provide reasonable surgical management and general medical treatment.
On 12 April 2018 Ms Carina underwent a left inguinal hernia operation at Monash Medical Centre, a hospital operated and managed by Monash Health. She says that the operation was unnecessary because there was no direct or indirect hernia and that a CT scan of the abdomen and pelvis on 27 March 2018 did not find such a hernia.
Ms Carina alleges that Monash Health was negligent in its surgical assessment, surgical management and medical treatment provided to her because it performed a left inguinal hernia operation when it should not have and because its post-operative care (including its assessment that Ms Carina was suitable for discharge from an outpatient clinic on 2 May 2018) was not adequate. The allegations which found Ms Carina’s claim in negligence are also said to constitute a breach of the implied term that Monash Health would provide reasonable surgical management and general medical treatment to Ms Carina.
Ms Carina claims that the negligence of Monash Health or its breach of the implied term have caused her injury, loss and damage.
On 1 March 2022 Ms Carina served Monash Health with a copy of a certificate of assessment pursuant to s 28LN of the Act and prescribed information in accordance with s 28LT of the Act. The terms of the prescribed information are central to one of Monash Health’s grounds for review.
In the prescribed information Ms Carina’s injuries are described as bilateral inguinal hernias, scarring and disfigurement and psychiatric sequelae. In the details of loss which Ms Carina alleged she had suffered as a result of the injury, the prescribed information provides, amongst other things, that Ms Carina ‘has suffered an aggravation of a pre-existing mixed anxiety and depressive disorder with traumatisation features’.
The certificate of assessment served with the prescribed information on 1 March 2022 was from Dr James Rowe, an occupational physician. On 21 April 2022 Ms Carina served Monash Health with a medical report of Dr Rowe. On 29 April 2022 a medical question as to physical injury was referred to a medical panel for determination.
On 3 May 2022 Ms Carina served Monash Health with a writ in the County Court of Victoria containing a general indorsement.
On 5 September 2022 the medical panel to whom the question of physical injury had been referred determined that Ms Carina did not have the degree of whole person impairment resulting from her physical injury which satisfied the threshold level.
In January 2023 Ms Carina served Monash Health with a certificate of assessment from Dr Justin Lewis, a psychiatrist, dated 13 December 2022. That certificate stated that Dr Lewis was satisfied that the degree of impairment satisfied the threshold level and describes Ms Carina’s injury as ‘aggravation of a pre-existing mixed anxiety and depressive disorder with traumatisation features’.
On 3 February 2023 a medical question as to psychiatric or psychological injury was referred to the Panel pursuant to s 28LWE of the Act.
In March 2023 Ms Carina filed and served a statement of claim in the County Court proceeding. In the statement of claim Ms Carina describes her particulars of injury in the following terms:
(a) pain, suffering and distress;
(b) scarring and disfigurement;
(c) further surgeries requiring the removal of implanted mesh;
(d)aggravation of anxiety and depressive disorder with traumatisation features; and
(e)psychiatric sequelae.
In May 2023 each of Ms Carina and Monash Health provided written submissions and various materials to the Panel.
On 26 May 2023 the Panel conducted an examination of Ms Carina.
On 28 June 2023 the Panel determined that ‘the degree of psychiatric impairment resulting from the injury to the claimant alleged in the claim does satisfy the threshold level’ (‘the opinion’). On that day the Panel provided reasons for its determination (‘the reasons’).
The reasons
In its reasons the Panel:
(a) states that it has formed its opinion with regard to documents and information referred to in enclosures A and B to its opinion and to the history provided by Ms Carina and the findings of the Panel elicited during its own examination;
(b) details her developmental history and sets out a history (derived from the material with which it was supplied) of the mental health and substance use issues of Ms Carina prior to her operation at Monash Health;
(c) sets out a history of the ‘incident’, being the operation at Monash Medical Centre for the left inguinal hernia mesh repair on 12 April 2018, and Ms Carina’s reaction to that, her description of her physical and psychological symptoms and various extracts from clinical records and medical reports regarding treatment subsequent to the operation;
(d) considers Ms Carina’s current circumstances and daily activities, her current psychiatric symptoms and her current treatment;
(e) describes the results of the mental state examination conducted by the Panel; and
(f) based on the foregoing, provides its opinion as to the level of psychiatric or psychological impairment which Ms Carina suffers.
In relation to its opinion, the Panel determined that Ms Carina was suffering from a recurrence of a major depressive disorder resulting from the injury alleged in the claim. It said it felt Ms Carina’s symptoms were better described in this way, rather than the description given by Dr Lewis of an aggravation of a pre-existing mixed anxiety and depressive disorder with traumatisation features.
The Panel specifically noted three matters which I regard as critical to the determination of this matter:
(a) It conducted its psychiatric impairment assessment of Ms Carina in accordance with the Guides for the Evaluation of Psychiatric Impairment for Clinicians as required by the Act;
(b) It specifically disregarded any impairment arising from unrelated causes or injuries. In this regard it specifically considered the Ms Carina’s experience of traumatic incidents in her childhood, substance use issues and her pre-existing chronic perioral pain and excluded consideration of those matters from its assessment; and
(c) It specifically noted that it was required to exclude impairment arising as a consequence of or secondary to physical injury in accordance with the Act and in that context, specifically disregarded the impact of scarring, physical disfigurement and pain consequent upon the left inguinal hernia repair and subsequent management in its determination.
Having made its assessment in accordance with the factors outlined above, the Panel concluded that the degree of whole person impairment resulting from the psychiatric or psychological injuries to which they were entitled to pay regard was 10% or more, meaning the threshold level prescribed by the Act was satisfied.
Grounds for review
Monash Health contends that the Panel made four errors:
(a) It assessed injuries beyond those alleged in Ms Carina’s claim against Monash Health;
(b) That contrary to s 28LJ of the Act, it had regard to secondary psychiatric symptoms in its determination;
(c) There was no evidence of a primary psychiatric injury; and
(d) Its conclusion was legally unreasonable or illogical in that once unrelated impairment and impairment arising as a consequence of or secondary to a physical injury was disregarded an assessment could not reasonably be made that Ms Carina’s impairment met the threshold.
Did the Panel impermissibly assess an injury beyond the scope of the claim?
Monash Health alleges that the Panel erred because it purported to assess a primary psychiatric or psychological injury when all that Ms Carina had claimed were psychiatric or psychological injuries secondary in nature to her physical injuries. It says that the Panel committed a fundamental error in assessing injuries beyond those which were alleged in Ms Carina’s claim.
At times in both its written and oral submissions, Monash Health’s argument in this regard overlapped with its argument that there was simply no evidence of primary symptoms. I deal with the ‘no evidence’ aspect of the matter below and for present purposes simply deal with the first ground as a matter to be determined on the face of the documents before the Panel.
This ground is not made out.
First, Ms Carina does allege a primary psychological condition in her claim. Her Statement of Claim was before the Panel. Paragraph (d) of her particulars of injury in the Statement of Claim is ‘aggravation of anxiety and depressive disorder with traumatisation features’. Paragraph (e) pleads ‘psychiatric sequelae’. In the context of the way in which particulars have been drafted, the reference in paragraph (d) should be construed as a reference to a primary psychiatric or psychological condition. There is no reason to construe it otherwise. In its reasons the Panel plainly considered that condition and determined that a better description of the symptoms which Ms Carina suffered was a ‘recurrence of a major depressive disorder’.
In short, this ground fails at the first hurdle. There was a primary psychiatric or psychological condition alleged in the claim and the Panel made its assessment in relation to that injury, albeit deciding that it preferred a different description of Ms Carina’s symptoms.
Monash Health says that paragraph (d) of the particulars of injury cannot be a primary psychiatric condition because there is nothing else in the pleading which would establish a causal link between what is alleged in the pleading and an aggravation of anxiety and depressive disorder as a primary condition. This submission should be rejected. Monash Health says that Ms Carina ‘never alleged any traumatic event or circumstance (caused by Monash Health’s negligence) had occurred so as to give rise to the primary symptoms’. This proposition is not made out. Ms Carina’s pleading alleges that she suffered the injury because Monash Health negligently subjected her to an operation which was unnecessary. In my view that might properly be considered an allegation of a ‘traumatic event or circumstance’.
Even if, contrary to the views I have expressed above, the only matters alleged in the statement of claim were properly to be characterised as secondary psychiatric or psychological injuries, Monash Health has not established the error for which it contends. As Justice Forbes observed in Latchford v Gibbons & Ors:[1]
The Panel is not bound to confine itself to those particulars of injuries provided (or not) by the claimant, but can have regard to the totality of the material.
[1][2021] VSC 229, [34].
In CD v Central Gippsland Health Service[2] Justice Croucher said:
It is true that the definition of ‘medical question’ in s 28LB refers to the injury ‘alleged in the claim’. The ‘claim’ to which s 28LB refers is not a claim for damages or a claimant-qua-plaintiff’s statement of claim. Rather, the concept of a ‘claim’ is a more nebulous one, the content of which in a given case derives from the prescribed information supplied by the claimant (i.e. the Form 4, including the prescribed information and accompanying documentation), any correspondence with the panel (including submissions), and the history a claimant gives the panel upon examination.
[2][2022] VSC 462, [217].
I am satisfied having regard to these authorities that even had the statement of claim and the prescribed information only referred to psychiatric sequelae or psychiatric and psychological conditions of a secondary nature, it was nonetheless incumbent upon the Panel to form its own opinion as to any condition which Ms Carina suffered and whether it was primary or secondary or had elements of both. This is what it did.
Monash Health’s first ground is not made out.
Did the Panel impermissibly take into account secondary conditions?
In its second ground Monash Health says that the Panel erred because contrary to the requirements of s 28LJ of the Act it had regard to secondary psychiatric conditions in its assessment of the impairment. At the outset, it is to be observed that success in this ground relies upon Monash Health demonstrating that the Panel in fact did something which in its reasons it expressly said it did not do. That argument rests on the proposition that on the materials the only relevant evidence was of a secondary psychiatric condition, and so, despite the Panel having expressly said it had excluded secondary psychiatric conditions from its consideration it, in fact it had not.
Understood in this way the second ground upon which Monash Health seeks judicial review is really no different to its third ground, the no evidence ground.
For the reasons I discuss below, the no evidence ground fails and so with it does the second ground.
The no evidence ground
Monash Health says that there was no evidence before the Panel of any primary psychiatric condition and so its finding of a primary psychiatric condition was not open. A proper reading of the reasons shows this is not so. The Panel concluded that Ms Carina had developed a depressive condition as a result of undergoing a surgical procedure which she alleges she did not need to have. The Panel describes Ms Carina’s symptoms as including that:
(a) she had lost trust in the medical profession and was ‘really scared’;
(b) she developed ‘nightmares about the surgery’; and
(c) she became very angry about being ‘mocked, lied to and laughed at’.
In its written submissions Monash Health characterised these as being ‘primary symptoms’ but complained, in effect, that no detail had been given and that the allegations had not previously been made.
Monash Health’s argument in this regard suffers from a manifest flaw. It accepts that there were primary symptoms identified by the Panel and, in reality, seeks to engage on the question of whether or not those symptoms were sufficiently real to warrant the Panel’s opinion. That is, the argument of Monash Health in its written submissions, is not properly to be regarded as a ‘no evidence’ argument.
In oral submissions Monash Health submitted that the symptoms described must necessarily be associated with the physical symptoms of pain which Ms Carina experienced after the operation. I asked whether a primary condition unrelated to Ms Carina’s physical pain symptoms could have arisen because Ms Carina had been operated upon in circumstances where she alleged the operation should never have been conducted. Counsel for Monash Health said Ms Carina’s case was no different to the circumstance of someone tripping on an uneven footpath, injuring their knee, developing a psychiatric condition in response to the knee pain and then saying that had the council not let the footpath become uneven, they would not have suffered the psychiatric injury. Counsel accepted though that in that example, if a claimant developed agoraphobia because of a fear of tripping on footpaths, that would be a primary psychiatric condition, not secondary to any physical pain associated with the knee injury. What this example shows is what might be regarded as evident in any event, the determination of whether a psychiatric injury is properly to be regarded as primary or secondary is a matter of expert medical opinion which the Panel was uniquely placed to determine.
The Panel was plainly alive to the difference between primary and secondary conditions – it is a distinction ‘well known to psychiatrists practising in this area’.[3] The Panel had evidence which was capable of being characterised as symptoms of a primary condition, it had evidence of symptoms which were plainly secondary and it expressly determined that there was a primary psychiatric condition having said it had ignored those matters which were secondary.
[3]Dixon v Hacker [2007] VSC 342, [50].
The no evidence ground is not made out.
Was the Panel’s decision unreasonable or illogical?
Finally, Monash Health contends that the opinion of the Panel is legally unreasonable or illogical in the sense that once unrelated impairment and impairment arising as a consequence of a physical injury was disregarded, any assessment of Ms Carina’s impairment for whatever remained could not have exceeded the threshold.
The test for legal unreasonableness or illogicality is not easily met:
If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker.[4]
[4]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [131], 649 [135].
Monash Health contended that the evidence showed pre-existing psychological conditions and problems which had not abated at the time of the operation. The diagnosis of a recurrence of a major depressive disorder implies a history of major depression that had ceased or was in remission at the time of the alleged negligence. Monash Health says that at no time is there evidence that Ms Carina’s depressive disorder had ceased or was in remission and, as a result, the diagnosis of a ‘recurrence’ is legally unreasonable or illogical.
The factual basis for this submission is that the medical records before the Panel and noted by them in their discussion of Ms Carina’s background history show a prior history of significant mental health issues including, in particular, diagnoses of depression. Monash Health then points to a Mental Health and Assessment Plan form completed by Ms Carina’s general practitioner, Dr Richard Norris, on 12 February 2018. This document was before the Panel but not expressly referred to in their reasons. The plan refers under the heading ‘Problem/Diagnosis’ to ‘depression re issue with pain facial 21 years, issues from childhood’. Monash Health says that that diagnosis and its proximity to the operation on 12 April 2018 demonstrates that there can in fact have been no ‘recurrence’ of a major depressive disorder.
The submission is problematic:
(a) First, it assumes that the reference in the Medical Plan to depression on 12 February 2018 is a diagnosis of a then-existing ‘major depressive disorder’;
(b) Secondly, it relies on an assumption of the inherent unlikelihood of any major depressive disorder abating for a period of two months, a matter presumably within the expertise of the Panel; and
(c) Thirdly, it assumes that the major depressive disorder manifested on 12 April 2018. Insofar as that diagnosis arises from Ms Carina’s discovery that the operation was unnecessary and Ms Carina’s reaction to that discovery, such a disorder logically must have arisen at a later date.
In short, the unreasonableness or illogicality for which Monash Health contends rests upon a series of assumptions which are not established by the evidence or at the very least on which reasonable minds might differ.
For this reason, the fourth ground fails.
Conclusion
For all of the above reasons Monash Health has failed to establish a basis to quash the opinion of the Panel and its application for relief should be dismissed.
---
SCHEDULE OF PARTIES
S ECI 2023 03877
| MONASH HEALTH | Plaintiff |
| - and - | |
| SOPHIA CARINA | First Defendant |
| - and - | |
| LYN-MAY LIM | Second Defendant |
| - and - | |
| ALEXANDER HOLMES | Third Defendant |
0