O'Brien v Mercy Health and Aged Care Inc. (T/as Mercy Hospital for Women)

[2007] VCC 214

IN THE COUNTY COURT OF VICTORIA Revised

AT MELBOURNE

CIVIL DIVISION

MEDICAL

Case No. CI-06-00718

DANIELLE O'BRIEN	Plaintiff
v
MERCY HEALTH AND AGED CARE INC trading as MERCY HOSPITAL FOR WOMEN	Defendant

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JUDGE:	Wodak
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2006
DATE OF JUDGMENT:	28 February 2007
CASE MAY BE CITED AS:	O’Brien v Mercy Health & Aged Care Inc. (T/as Mercy Hospital for Women)
MEDIUM NEUTRAL CITATION:	[2007] VCC 214

REASONS FOR JUDGMENT

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr  A Fraatz	David Stagg
For the Defendant	Mr N Murdoch	Middletons

Introduction:

1       In 1986,  Danielle O’Brien was injured in a motor car accident, and was severely injured, becoming a quadriplegic. In June 2000, Mrs O’Brien entered Mercy Hospital for the birth of her second child.  On 9 June 2000, her daughter was born.  On 12 June 2000, Mrs O’Brien developed symptoms, including episodes of autonomic dysreflexia, sepsis leading to spasms, elevated blood pressure, fever, tachycardia and a fluctuating consciousness. On 13 June 2000, Mrs O’Brien was transferred into the Intensive Care Unit at Austin Hospital, because of her symptoms.

2       On 2 March 2006,  Mrs O’Brien began this proceeding for damages for personal injuries against Mercy Health and Aged Care Inc.

3       Mrs O’Brien claims that her medical care and treatment at Mercy Hospital was negligent, and in breach of the duty of care the hospital owed to her.  She claims that as a result she has suffered injury, loss and damage.  The injuries alleged are described as “post traumatic stress disorder with anxious and depressed mood”[1].  By its defence, Mercy Hospital denies that it was negligent or in breach of its duty of care to Mrs O’Brien.  The defence raises other issues, not presently relevant.

[1]See paragraph 9, statement of claim

4       The issue now to be determined concerns a claim of medical privilege  by Mrs O’Brien over the records of Dr Sturrock, psychiatrist, who has treated Mrs O’Brien.  The defence contends that the medical privilege that may exist has been waived by Mrs O’Brien.

Medical privilege

5       The starting point is s28 Evidence Act, the relevant part of which reads:

(2) No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding… any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.

The issue:

6       Mr Fraatz announced that Mrs O’Brien did not intend to call Dr Sturrock as a witness, despite having received psychiatric treatment from Dr Sturrock.  She claims medical privilege for the medical records of Dr Sturrock relating to her.

7       Mr Murdoch argued that by pleading the injury set out in paragraph 3 above, Mrs O’Brien had waived privilege as to the issue of the diagnosis, nature and extent of her alleged injury.

Dr Sturrock:

8       During the hearing, a chronology was provided.  It shows that the matters on which Mrs O’Brien’s claim is based occurred on about 12 June 2000.  On 2 March 2006, this proceeding was commenced.   Mrs O’Brien saw Dr Toscano, first, on 30 June 2000.  Dr Toscano prescribed anti depressant medication for Mrs O’Brien.  She consulted a psychiatrist, Dr Mackersey twice in August 2000. Mrs O’Brien saw Dr Sturrock in April and May 2006.

The argument:

9       Mr Murdoch submitted that Mrs O’Brien had put in dispute in this proceeding, her state of mind, for which she had apparently consulted Dr Sturrock. There is nothing before the Court to show why Mrs O’Brien consulted Dr Sturrock. Mr Murdoch contended that having claimed that she suffered the injury referred to in paragraph 3 above, Mrs O’Brien has waived reliance on medical privilege for Dr Sturrock’s records, and should be required to disclose them to Mercy Hospital in this proceeding.  He also argued that this conduct by Mrs O’Brien is inconsistent, and that, as a matter of fairness she should be required to discover these records.

10      Mr Murdoch relied on Mann v Carnell[2].  There, the High Court decided that an existing claim of legal professional privilege may be waived expressly, or by implication, intentionally or unintentionally[3]. At common law, a person entitled to the benefit of legal professional privilege may waive that entitlement. As was observed by Gleeson CJ, Gaudron, Gummow and Callinan JJ[4], it is the client who is entitled to the benefit of the confidentiality provided by legal professional privilege. Their Honours went on to say[5]:

"It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against the lawyer, in which the lawyer's evidence as to advice given to the client will be received."

[2](1999) 201 CLR 1 at 13

[3]see Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485, at 491-492 per Templeman L J, and see McNicol “Law of Privilege”, Law Book Company Limited, (1992) p24

[4]Mann v Carnell (1999) 201 CLR 1 at 13

[5]Mann v Carnell (1999) 201 CLR 1 at 13

11      Their Honours considered how the right to the protection of privilege may be waived. Their Honours considered that:

"…the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege…What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."[6]

[6]Mann v Carnell (1999) 201 CLR 1 at 13

12      Even though the Court was there concerned with legal professional privilege, Mr Murdoch contended that the principle stated in Mann v Carnell should be applied to a claim of medical privilege in these circumstances.

13      Mr Fraatz responded that Mrs O’Brien had instructed that Dr Sturrock not be called as a witness at her trial, and that she wished to maintain the medical privilege for Dr Sturrock’s records.

The law:

14      Apart from the principles stated in Mann v Carnell, above, there is other case law to bear in mind.  In Liquorland (Australia) Pty Ltd v Anghie[7], Byrne J considered issue waiver, and the consequences of how a case is pleaded.  His Honour said:

“I recoil from a principle which would have the consequence that a client litigant’s plea of reliance in a negligent misstatement case, a misleading or deceptive conduct case or an estoppel case, ipso facto strips the privilege from legal communications which occurred about the time of the reliance. Furthermore, I am resistant to an argument that would have privilege waived in respect of any privileged document which might be relevant to the state of mind which has been pleaded into issue. To my mind, the putting in issue by the client of its relevant state of mind, whether it be one of reliance or otherwise, is merely the starting point for an examination of the waiver question. The chronological coincidence of the legal communication and the establishment of that state of mind does not of itself determine the question. The application of the test of unfairness, as expounded by the High Court, involves an examination of the precise nature of this pleaded state of mind and of the impact of the particular communication upon it. It is only where this examination shows that there will arise an unfair inconsistency between the position of the client setting up this state of mind and its maintenance of the privilege that waiver will arise and, then, only to the extent necessary to avoid the unfairness”[8].

[7](2003) 7 VR 27 at 43

[8](2003) 7 VR 27 at 43

15      As was pointed out in Mann v Carnell, privilege is for the client to claim, or waive.  The mere pleading of an issue was not sufficient to Byrne J to necessarily constitute a waiver of the privilege, which would otherwise exist for a particular document, or class of documents, such as medical records. 

16      Mr Murdoch attached importance to Mrs O’Brien’s state of mind.  In my view, what Mrs O’Brien has pleaded is a mental injury.  She  has the burden of proving that she has suffered that injury, and that the negligence or breach of duty of the defendant was a cause of that injury.  I regard this as something quite different to a dispute over the state of mind of a party to a transaction in the case considered by Byrne J.

17      Mrs O’Brien is free to conduct her litigation as she chooses, and to call, or not call, such witnesses as she sees fit.  If she elects to conduct her case without adducing evidence from Dr Sturrock, there may be forensic consequences of her doing so.   That is not to the point.

Conclusion:

18      I consider that Mrs O’Brien is entitled to claim medical privilege for the records of Dr Sturrock, in so far as they come within s28(2) Evidence Act.  That may not mean that Dr Sturrock  could refuse to answer questions about the treatment he had prescribed, if called as a witness[9], as was explained by Griffith. C J:

“With regard to the limitation imposed by the words "and which were necessary," &c., it was contended that the prohibition relates only to information acquired before the prescription or operation, and does not extend to the prescription or operation itself, or to any information subsequently acquired. I agree, so far as regards the physical fact of the prescription or operation. If a physician prescribes medical treatment he is not forbidden to say what it was. If a surgeon amputates a limb he may depose to the fact”[10].

[9]see National Mutual Life Association of  Australasia Ltd v  Godrich (1909) 10 CLR 1

[10]National Mutual Life Association of  Australasia Ltd v  Godrich (1909) 10 CLR 1 at 11

19       In my opinion, merely because of the injuries claimed by Mrs O’Brien in this proceeding, she has not thereby waived privilege, where it exists, in respect of Dr Sturrock’s records.  Further, I do not regard there being inconsistency in alleging the particular injury, and choosing not to call a doctor who may or may not have treated her for those injuries.  If fairness is to be considered separately from the doctrine of inconsistency, I do not regard a decision not to call a doctor in these circumstances as unfair, where that is a decision of a party bearing the burden of proof.

20      It may well be that Dr Sturrock could give relevant evidence.  It may be that the evidence that Dr Sturrock could give would assist one or other of the parties in this proceeding. There is no obligation on Mrs O’Brien to call as a witness  a doctor merely because she has consulted that doctor, about an injury the existence and extent of which and its causal connection with the conduct of the defendant is in dispute in the proceeding. (assuming for present purposes that Dr Sturrock was so consulted).

21      I do not consider that this is unfair.  Mercy Hospital may have Mrs O’Brien examined by a doctor or doctors of its choosing.  Whilst to do so without the benefit of Dr Sturrock’s notes may disadvantage the defendant, I cannot determine whether, or to what extent that may be so.  I have not seen Dr Sturrock’s notes or records concerning Mrs O’Brien.

22      I do not believe that it is necessary that I do so in order to determine this issue.  Mercy Hospital has failed to establish that Mrs O’Brien has waived the privilege that I am satisfied that she has over these medical records.  It has likewise failed to establish that Mrs O’Brien has behaved inconsistently concerning the records, or behaved so as to create unfairness for Mercy Hospital.

23      I therefore uphold the objection taken by Mrs O’Brien.