Netherwood v Hillier

[2023] NSWSC 937

Supreme Court

New South Wales

Medium Neutral Citation:

Netherwood v Hillier [2023] NSWSC 937

Hearing dates:

9 August 2023

Date of orders:

10 August 2023

Decision date:

10 August 2023

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1   The proceedings under the statement of claim are dismissed as against the third defendant.

2   The plaintiff is to pay the third defendant’s costs of the proceedings.

3   Stand the proceedings over to 17 August 2023 before the Registrar.

4   The costs of the first and second defendants on the notice of motion brought by the third defendant including the hearing on 9 and 10 August 2023 will be the costs of those defendants in the cause.

Catchwords:

CIVIL PROCEDURE – professional negligence – where third defendant a fourth-year Orthopaedic Registrar – where third defendant and second defendant jointly performed spinal fusion procedure upon plaintiff – no expert opinion that procedure performed with less than the requisite standard of care and skill of a medical practitioner in his position – non-compliance with r 31.36 of the Uniform Civil Procedure Rules

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

Travis Netherwood (plaintiff)
Terence Hillier (first defendant)
Kerin Fielding (second defendant)
David Bell (third defendant)

Representation:

Counsel:
J Hillier (plaintiff)
Ms Carruthers (first defendant)
K Kumar (second defendant)
B Bradley (third defendant)

Solicitors:
Commins Hendriks Law (plaintiff)
HWL Ebsworth (first defendant)
Makinson d’Apice (second defendant)
Norton Rose Fulbright (third defendant)

File Number(s):

2021/332182

JUDGMENT

1. Before the Court is a notice of motion filed by the third defendant seeking an order that these proceedings be struck out as against him pursuant to either r 31.36(3) of the Uniform Civil Procedure Rules 2005 (NSW) or r 12.7(1). Rule 31.36 is concerned with the requirement that a plaintiff in professional negligence proceedings must file an expert report supporting the elements of the tort together with his or her statement of claim. Rule 12.7 is concerned with undue delay or want of prosecution.

2. The plaintiff’s statement of claim was filed on 22 November 2021 alleging negligence against all three defendants in the provision of medical care and treatment on various dates between 2006 and 2012. The plaintiff alleges against the first defendant, a neurosurgeon, that he performed three operations on the plaintiff’s lumbosacral spine on 22 June 2006, 26 April 2007 and 29 November 2007 and that in relation to each procedure his recommendation for the surgery was negligently given, his execution of the respective procedures was negligent and his post-operative advice to and management of the plaintiff was negligent.

3. The second defendant is an orthopaedic surgeon. Against her it is alleged that she performed an L4/5-L5/S1 fusion using pedicle screws and rods on 13 April 2010 at Wagga Wagga Base Hospital and that she was negligent in recommending the surgery, in the manner in which she performed it and in her post-operative care of the plaintiff.

The professional status of the third defendant in 2010

4. In April 2010 the third defendant, Dr Bell, was employed by the Greater Southern Area Health Service as a 4th year Orthopaedic Registrar. It is alleged that he carried out the fusion procedure on 13 April 2010, together with the second defendant, and that he performed it negligently. When the proceedings were commenced the plaintiff misapprehended that the third defendant was in practice as an orthopaedic surgeon. In fact he did not become a Fellow of the Royal Australasian College of Surgeons until 2012. As a 4th year Registrar in 2010 Dr Bell was still in training for his specialty. The plaintiff’s error is likely to have arisen from the hospital’s contemporaneous Operation Record, which was filled out in handwriting and signed by Dr Bell. It records his name as “Surgeon” and the name of the second defendant, Dr Fielding, as “Assistant”. A 4th year registrar would not have performed the spinal fusion operation on the plaintiff as the lead surgeon, with a fully qualified consultant orthopaedic surgeon as his assistant under his supervision. A 4th year registrar would not have had authority to lead, direct or supervise and the second defendant, as a Fellow of the College with full accreditation in the specialty, would remain primarily responsible for the conduct of the procedure.

5. The plaintiff now accepts that Dr Bell was a 4th year registrar rather than a qualified orthopaedic surgeon. The plaintiff filed an amended statement of claim on 5 July 2022 in which the original allegations of the third defendant’s professional status were maintained (see pars 16-21) but on 15 June 2023 the plaintiff provided to the defendants a proposed further amended statement of claim in which this would be corrected. On the basis of the hospital’s Operation Record the plaintiff originally alleged that “the Third Defendant assisted by the Second Defendant” performed the spinal fusion operation on 13 April 2010. That would be altered in the proposed further amended pleading to an allegation that “the Second Defendant and the Third Defendant” performed the operation (see par 92).

6. The plaintiff’s counsel stated on the hearing of the notice of motion that it is not conceded that the second defendant led the operation or supervised Dr Bell in such part as he played. Nevertheless, that would almost certainly be found as a fact at a final hearing, having regard to the status of the two doctors respectively. The question is not significant for resolution of the issues on the notice of motion, having regard to the lack of expert evidence filed by the plaintiff to support an allegation that the execution of the procedure was to a standard of care below that of either an orthopaedic surgeon practising in spinal surgery or a 4th year registrar in that field.

The operation performed on 13 April 2010

7. To understand the basis for the third defendant’s present application, it is necessary to identify the respect in which it is alleged that the surgery on 13 April 2010 was not satisfactorily performed. As appears from the expert reports that have been exchanged in the proceedings, the pedicles of vertebrae in the lumbar and sacral segments of the spine are projections of hard bone, cylindrical in cross-section, that extend horizontally in a posterior direction from the vertebral body. There is a pedicle on each side of each vertebra. Distally from the vertebral body they are connected by a bony structure called the neural or vertebral arch so that these elements together enclose an opening immediately posterior to the vertebral body, which is the vertebral foramen. The foramina of the vertebrae stacked one above the other in the spinal column constitute a vertical passage, the spinal canal. The spinal cord descends through the spinal canal to the level of L1 and from its termination at that point a collection of nerve roots descends through the lower vertebral foramina. The nerve roots exit sequentially through intervertebral foramina lying between the pedicles of adjacent vertebrae.

8. At the operation performed on 13 April 2010 by Drs Fielding and Bell, a screw was inserted into each pedicle at L4, L5 and S1: six screws altogether. They were driven into the pedicles from back to front in the horizontal plane. I infer that the screws would have been driven at an acute angle to the rear-to-front axis through the patient’s body. The experts’ descriptions indicate that the objective was for a screw to be embedded in the longitudinal axis of each pedicle, more or less through the centre of this bony element and following its alignment, with the threaded part of the screw to be entirely within the pedicle at completion. It appears that once the screws were in place the heads of them were connected with vertically aligned rods, one alignment between the heads of the screws on the left and the other alignment between heads of the screws on the right.

Expert reports held by plaintiff at the commencement of proceedings

9. Prior to commencement of the proceedings the plaintiff obtained reports of Dr Hopcroft dated 21 April 2021 and 13 July 2021 and of Mr Drnda dated 1 August 2021. Dr Hopcroft is an orthopaedic surgeon practising in New South Wales and Mr Drnda is a Victorian consultant neurosurgeon. Their reports were served at or about the time of serving the statement of claim. The plaintiff’s solicitor has deposed that all defendants received the reports on 6 December 2021. Appearances were filed by the first defendant on 13 December, by the second defendant on 14 January 2022 and by the third defendant on 3 March 2022.

10. In both of Dr Hopcroft’s reports he considered a report of a post-operative X-ray that was carried out on 19 August 2010, in which the radiologist stated the following, amongst other things:

The interpedicular screws at L4/5 appear satisfactory. At L5/S1 the left interpedicular screw traverses the lateral recess and passes medial to the pedicle.

11. Within the vertebral foramina at L5/S1, the parts of the opening that lie towards the left and right sides are known as the lateral recesses. The radiological report referred to by Dr Hopcroft clearly means that one of the pedicle screws was not installed accurately into the bone of the pedicle on its longitudinal axis but penetrated too far towards the midline of the spine (“medially”) and into the lateral recess on the left side of the vertebral foramen. There it would be in proximity to and might make contact with nerve roots descending from the termination of the spinal cord at about L1.

12. In Dr Hopcroft’s report of 21 April 2021, he quoted the following from a further radiological study of 23 May 2016:

The left L4 pedicle screw passes quite medially and lies outside the bony cortex. It may be causing some impingement on the descending left L5 nerve root. … The remaining screws appear satisfactory …

13. From Mr Drnda’s report and from all other information in the evidence, it seems clear that it was the screw at the left L5 pedicle that was misaligned, not the one at the left L4 pedicle. The reference to L4 in the extract quoted above appears likely to be a misprint in either Dr Hopcroft’s report or in the original radiological report.

14. Based on the history of the plaintiff’s symptoms following the operation, Dr Hopcroft expressed the following opinion concerning the outcome of the misplacement of the left L4 pedicle screw:

[There was] improvement in his back pain post operatively but with the development of numbness down his left leg, almost certainly from one of the left-sided screws traversing the neuro foramen and damaging the nerve root.

15. In Dr Hopcroft’s second report of 13 July 2021 he repeated most of the first part of his report of 21 April 2021 including the passages that I have quoted above and he considered all the radiological studies that were made available to him. With respect to the most recent of the studies considered by Dr Hoproft, he said this:

X-ray of lumbar spine on 8 September 2010 – this is a post-operative x‑ray ordered by Dr Fielding showing perhaps some low displacement of the upper component of the disc replacement arthroplasty [referring to a procedure that had been carried out by the first defendant at L5/S1 on 26 April 2007) but with significant screw malalignment of the left middle screw which appears to have been placed significantly medially.

16. Noting the sequence of vertebrae in respect of which the operation of 13 April 2010 was carried out, Dr Hopcroft’s reference to the “left middle screw” would appear to be the screw at the left L5 pedicle. Dr Hopcroft’s second report also contains this opinion:

I can now confirm, having reviewed the x-rays, that following instrumented fusion performed from L4/5 to L5/S1, the left L5 pedicle screw has sadly been significantly malaligned damaging the lumbar nerve root, that saw this patient have such significant post-operative numbness down his left leg.

17. Mr Drnda’s report of 1 August 2021 included his summary of conclusions from radiological studies carried out since the operation of 13 April 2010:

Post-operative x-rays of the lumbar spine, dated 15 April 2010, revealed likely malposition of the left L5 pedicle screw. The same was found on the x-rays performed on 29 April 2010 and on 11 May 2010.

CT scan of the lumbar spine, dated 19 August 2010 revealed misplaced left L5 pedicle screws situated in the lateral recess with likely neural conflict with a left nerve root. The right L5 pedicle screw also breached the medial cortex of the particle [scil, pedicle] but was unlikely to interfere with the right L5 nerve root.

X-rays of the lumbar spine, dated 8 September 2010, revealed misplaced L5 pedicle screws and probable fusion of the posterolateral graft.

CT scan of the lumbar spine, dated 14 September 2012, again revealed misposition of the L5 pedicle screws.

18. In a passage of Mr Drnda’s report answering a specific question from the plaintiff’s solicitors as to whether there were any technical deficiencies in the way the procedure was carried out, Mr Drnda stated the following:

Two days after the surgery on 15 April 2010, x-rays demonstrated that the left L5 pedicle screw was directed too medially. [The plaintiff] developed new symptoms and neurological deficit in the left leg. The same findings were on the x-rays from 29 April and 11 May. The official report did not mention the screws malposition, but a spinal surgeon should be capable of noticing the improper positioning on his/her x-ray assessment. An immediate CT scan of the lumbar spine was warranted. However, it was not until 19 August 2010 that the scan was done and confirmed inappropriately placed L5 pedicle screws with the left one entering the lateral recess and compromising the left L5 nerve root (hence the new neurological deficit). The right L5 pedicle screw also breached the cortex but did not enter the lateral recess (and the right L5 nerve root was spared of injury).

19. In this report Dr Drnda expressed the opinion that the second defendant’s post-operative treatment was inappropriate and that she should have reviewed the post-operative x-rays, organised a CT scan without delay and then performed revision surgery immediately.

The case pleaded against the third defendant

20. In the statement of claim as originally filed, the plaintiff alleged against the second defendant negligence in three areas: pre-operative advice to the plaintiff to undergo the spinal fusion procedure; execution of the procedure; and post‑operative assessment of the result, follow-up care and remedial surgery. The plaintiff alleged against the third defendant professional negligence in undertaking the operation, in that it was alleged to have been not clinically indicated, and negligence in the execution of the procedure. There was no allegation of post-operative negligence on the part of the third defendant.

21. The alleged negligence of the third defendant was pleaded in the original statement of claim and maintained in the amended statement of claim of 5 July 2022 as follows:

133. The plaintiff pleads particulars of negligence and breach of duty of care against the third defendant, including:

a   performed the [13 April 2010] surgery without due care and skill and technical precision;

b   failed to advise the plaintiff of the risks, warning of the risks and obtaining his informed consent to undertake the [13 April 2010] surgery prior to performing [it];

c   performed the [13 April 2010] surgery with insufficient and uninformed consent;

d   malpositioned the left interpedicular screw at L5 in the course of the [13 April 2010] surgery;

e   failed to recognise or adequately recognise the malpositioned left interpedicular screw at L5 in the course of the [13 April 2010] surgery;

f   failed to address or adequately address the malpositioned left interpedicular screw at L5 in the course of the [13 April 2010] surgery;

g   failed to correct the malpositioned left interpedicular screw at L5 in the course of the [13 April 2010] surgery;

h   performed the [13 April 2010] surgery in circumstances where the plaintiff was a significant smoker.

22. In the most recent form of a proposed further amended statement of claim, circulated to the defendants on 20 July 2023, the plaintiff has indicated his intention to delete sub-paras (b), (c) and (h) of par 133. That appears to follow from the plaintiff’s acceptance that Dr Bell’s involvement was limited to assisting in the operating theatre as a registrar. The decision to undertake the operation was not his. He was not involved in obtaining the plaintiff’s informed consent. The plaintiff has never alleged that the third defendant was involved in post-operative assessment and care of the plaintiff. Hence, by the proposed further amendment of the statement of claim the plaintiff has narrowed his case, in the remaining sub-paragraphs of par 133, to one of negligence solely in the performance of the surgery, specifically in mis-positioning the L5 left pedicular screw and failing to identify during the course of the operation that this had occurred and failing to correct it before the procedure was concluded.

Absence of expert opinion to support the case in negligence

23. Neither of the plaintiff’s experts, Dr Hopcroft or Mr Drnda, has expressed an opinion at any time that the inaccurate placement of the left pedicular screw at L5 was negligent. Dr Hopcroft refers to the screw as “significantly misaligned”; and Mr Drnda uses the terms “misplaced”, “mispositioning”, “malpositioned”, “improper positioning” and “inappropriately placed”. Counsel for the plaintiff submits that the experts’ statements in these terms amount to an opinion that the procedure was carried out negligently, in breach of the standard of reasonable care and skill of an orthopaedic surgeon (Dr Fielding) and a 4th year orthopaedic registrar (Dr Bell) performing spinal surgery.

24. I reject that submission. The allegation of negligence in the performance of the operation requires fundamentally that the plaintiff must prove a departure by Dr Bell from the applicable standard of care and skill of a professional in the circumstances. If either Dr Hopcroft or Mr Drnda held the opinion, when their reports were written, that the mispositioning of the screw of itself bespeaks a falling short of the standard of reasonable care of an orthopaedic surgeon and a 4th year registrar, it would have been a very straightforward thing for them to have said. Neither of them did. With respect to this surgery the reports of Dr Hopcroft and Mr Drnda contain opinions on departure from the standard of reasonable care and skill only with respect to Dr Fielding’s pre-operative recommendation that the procedure be carried out and with respect to her post-operative care, involving failure to identify promptly the misplaced screw and to undertake remedial surgery.

25. The failure of the plaintiff to serve any expert report that would support the allegation of breach of duty of care on the part of the third defendant in his performance of the operation is a contravention of r 31.36 which is in the following terms so far as relevant:

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)   …

(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.

26. The purpose of r 31.36 is self-evident: to prevent the institution and maintenance of proceedings in negligence against professional people purely on the basis of a view of the plaintiff or of his lawyers as to what constitutes a shortfall relative to the standards of a professional calling and to require that such a proceedings can only go forward if supported by the opinion of a person who is an expert in the relevant field. The importance of the rule is well illustrated by the circumstances of this case. It cannot be said to be self-evident to any person who is not trained in spinal surgery and who has never practised in the field that misalignment of a pedicle screw is something that could always be avoided with the exercise of reasonable care. Training and experience in that field are essential prerequisites to the formation of a rational view on the subject.

27. The absence of support from either Dr Hopcroft or Mr Drnda for the allegation of negligence in this respect reveals it for what it is: in the various iterations of the statement of claim the pleading of negligence of the third defendant in his performance of the operation is an uninformed and unfounded construct of the plaintiff and his advisers. The plaintiff has opinions from Dr Hopcroft and Mr Drnda that the second defendant, in the exercise of reasonable care, should have counselled against the procedure, should not have undertaken it and, in circumstances where it had been performed, should have identified post-operatively that the screw had been misplaced and should have addressed that defect with further care and remedial action. But the plaintiff and his advisers have never been in possession of any medically qualified specialist opinion that the procedure was negligently performed by either Dr Fielding or Dr Bell. They should not have so alleged in the absence of such support. That is the effect of r 31.36.

28. The third defendant’s solicitors have repeatedly and thoroughly brought to the plaintiff’s attention the critical significance of his failure to serve, either in accordance with the rule or at a later time, any expert medical opinion that the procedure was executed negligently. The plaintiff has not responded with any demonstration of ability or willingness to rectify this defect in his case. Since the commencement of the proceedings the plaintiff has not sought a direction for time within which to serve further expert evidence concerning the liability of any of the defendants. On 5 October 2022 the third defendant received a report of that date from Professor Richard Bittar, a Fellow of the Royal Australasian College of Surgeons and a neurosurgeon practising in Victoria and Tasmania. He provided the following opinion:

Opinion: Pedicle screw misplacement is a well-recognised complication of instrumented spinal surgery. At the time of [the plaintiff’s] surgery many of the technologies now available for surgeons to reduce the risk of pedicle screw misplacement would not have been readily available. These technologies include intraoperative real time navigation and robotic spinal surgery. Pedicle screw misplacement can occur in the best of hands and all spinal surgeons, irrespective of experience, would have misplaced pedicle screws from time to time if they performed surgery in the same way that it was performed in 2010. Most pedicle screw misplacements do not cause any neurological injury, even if they do displace a nerve root.

29. In this report Professor Bittar answered questions that had been put to him by the third defendant’s solicitors, as follows:

[Q] Is misplacement of screws an inherent risk of the procedure? Please comment on the incidence of screw misplacement and whether you consider this indicates the [13 April 2010] surgery was performed negligently?

[A] Misplacement of the screws [is] an inherent risk of the procedure. Screw misplacement can occur in the best of hands and can be due to a variety of factors. Misplacement of a pedicle screw does not indicate the [13 April 2010] surgery was performed negligently. The rate of screw misplacement [varies] significantly in the scientific literature, however many studies report an incidence of up to 5-10% with freehand screw placement.

[Q] Please comment generally on the roles of a Registrar and a Consultant in performing procedures such as the [13 April 2010] surgery, and the supervision responsibilities of the consultant.

[A] A consultant spinal surgeon is responsible for the overall surgical procedure in all cases. Where a registrar is involved, depending on their level of experience and seniority, portions of the surgery are allocated to them under supervision of [the] specialist. In my opinion a fourth year registrar, under supervision by a consultant, should be capable of carrying out a significant proportion of the type of surgery performed on [the plaintiff in April 2010. This includes placement of pedicle screws. It is the role of the consultant to supervise the registrar as they place the screws, however even with direct supervision it is impossible to abolish the risk of screw misplacement.

30. In September 2022 the defendants were directed to complete service of their expert evidence on liability by 17 March 2023. On the latter date the third defendant’s solicitors served Professor Bittar’s report on the plaintiff’s solicitors together with copies of their letters of instruction to him. The plaintiff’s solicitors immediately sent Professor Bittar’s report to Dr Hopcroft with the following request:

We would be grateful if you would let us know as to whether there is any matter contained in the doctor’s report that requires a response.

31. The plaintiff’s solicitors did not forward Professor Bittar’s report to Mr Drnda or request an opinion from him on the question of whether the misplacement of the left L5 pedicle screw demonstrated or constituted a shortfall in reasonable surgical care and skill.

32. On 20 March 2023 the third defendant’s solicitors filed the notice of motion that is now before the Court seeking dismissal of the proceedings against their client expressly on the basis that r 31.36 had not been complied with. The service of Professor Bittar’s report followed closely by the filing of this notice of motion were the clearest possible warning to the plaintiff that if he could not forthwith make good his failure, in breach of the rule, to serve an expert opinion supporting breach of the duty of care in the performance of the procedure, his action against the third defendant would fail and would be dismissed, imminently.

33. A direction was made on 14 April 2023 that the defendants complete service of their expert evidence on liability by 28 April 2023 but there has been no direction for the plaintiff to serve expert liability evidence in reply. Nevertheless, the plaintiff has served a report of Dr Hopcroft of 25 April 2023, which contains no opinion that the operation of 13 April 2010 was performed negligently. The plaintiff has served a report of Mr Drnda dated 12 May 2023, which addresses other subjects but is likewise silent on the critical question of negligence relevant to the case against the third defendant.

34. These proceedings have now continued for some 21 months with the plaintiff non-compliant with r 31.36, maintaining an unsupported allegation of medical negligence against the third defendant. Since the report of Professor Bittar and the present notice of motion were served, the absence of expert support for the allegation of negligence has continued for a further period of nearly 5 months. The plaintiff’s advisers manifestly made a deliberate choice not to request Dr Hopcroft to express an opinion about negligence in the performance of the operation and not to send a copy of Professor Bittar’s report to Mr Drnda for his response.

35. In the course of the hearing of the notice of motion the plaintiff’s counsel sought a period of 3 weeks to try to obtain a report concerning negligence in the performance of the surgery of 13 April 2010. The Court has been given no reason to expect that such a supporting opinion could be obtained. There would be no justification for allowing further time in which to make good the default, in circumstances where it has persisted throughout the conduct of these proceedings and has not been remedied during the last five months in the face of explicit notification, with the plaintiff having made the conscious choices to which I have referred.

36. If there is ever to be a case for the exercise of the Court’s discretion under sub-r (3) of r 31.36 to dismiss proceedings for non-compliance with that rule, this must surely be such a case. For these reasons the orders of the Court are:

1. The proceedings under the statement of claim are dismissed as against the third defendant.

2. The plaintiff is to pay the third defendant’s costs of the proceedings.

3. Stand the proceedings over to 17 August 2023 before the Registrar.

4. The costs of the first and second defendants on the notice of motion brought by the third defendant including the hearing on 9 and 10 August 2023 will be the costs of those defendants in the cause.

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Decision last updated: 14 August 2023