O'Meara v Dr Arianayagam

[2006] NSWSC 797

CITATION:	O'Meara v Dr Arianayagam [2006] NSWSC 797
HEARING DATE(S):	4 August 2006
JUDGMENT DATE :	8 August 2006
JUDGMENT OF:	Latham J at 1
DECISION:	That the defendant answer interrogatories 7, 8, 10 to 22 inclusive, the first part of interrogatory 23, 25 to 31 inclusive, 35 to 44 inclusive, 46 to 49 inclusive; Costs of the motion are to be costs in the cause; The above orders do not prevent the defendant from taking any further objection to individual interrogatories under Rule 22.2 of the Uniform Civil Procedure Rules 2005.
CATCHWORDS:	Interrogatories - whether plaintiff has demonstrated "special reasons" for order under Rule 22.1 - loss of photographs and paucity of clinical notes
CASES CITED:	Bassindale v Western Sydney Area Health Service [2006] NSWSC 703
PARTIES:	Dianne Elizabeth O'Meara - Plaintiff Dr Chandran Arianayagam - Defendant
FILE NUMBER(S):	SC 20302/04
COUNSEL:	Robert Taylor - Plaintiff Jason Downing - Defendant
SOLICITORS:	McCabe Partners - Plaintiff P Tsaousidis - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

LATHAM J

8 AUGUST 2006

20302/04 DIANNE ELIZABETH O’MEARA v DR CHANDRAN ARIANAYAGAM

JUDGMENT

1 The plaintiff seeks an order under Rule 22.1 of the Uniform Civil Procedure Rules 2005 that the defendant answer 49 interrogatories which were served on the defendant on 22 December 2005. The Notice of Motion filed on 12 July 2006 is supported by Affidavits of Natalie McCabe dated 11 July and 26 July 2006. The Defendant resists the application for the order and relies upon an Affidavit of Michael Andre Swan of 4 August 2006.

2 The issue for determination is whether the plaintiff has discharged the onus of satisfying the Court that special reasons exist justifying the making of the order. Some reference to the circumstances giving rise to the proceedings is necessary in order to place the interrogatories in context and assess the plaintiff’s claim that the preparation and conduct of her case is compromised without the answers sought, in that they are solely within the knowledge of the defendant and unavailable from any other source.

Alleged Professional Negligence and Breach of Contract in the Performance of Three Breast Reduction Procedures

3 The plaintiff is presently 41 years of age. In late June 2001 the plaintiff consulted the defendant in relation to a contemplated breast reduction procedure. It is alleged that the defendant advised the plaintiff that she would benefit from such surgery. Accordingly the plaintiff underwent a bilateral reduction mammaplasty performed by the defendant on 30 August 2001.

4 The outcome of the surgery was unsatisfactory, in that the plaintiff alleges that she was left with a larger right breast than the left, extensive and obvious scarring, depression of breast contours and unsatisfactory placement of the nipples. The defendant allegedly advised the plaintiff to undergo a further procedure which took place on 28 August 2002. It is alleged that further bilateral liposuction and removal of breast tissue was performed.

5 Following that surgery, the plaintiff was again allegedly advised by the defendant to undergo further surgery. The further surgery was performed by the defendant on 30 January 2003, again involving bilateral liposuction of additional breast tissue and lipectomy of the axilla.

6 It is alleged that the plaintiff's breasts still show significant contour abnormalities, poor quality periareola scarring, difference in size as between the right and left breast, significant scarring on the chest wall and continuing abnormalities of the right breast. In May 2003 the plaintiff sought an opinion from a specialist plastic surgeon, Dr Olbourne.

7 In August 2003 the plaintiff consulted McCabe partners, solicitors. Through an exchange of correspondence between October 2003 and February 2004, the plaintiff's solicitors ascertained from United Medical Protection Ltd that a series of pre and post-operative photographs taken by the defendant of the plaintiff had been lost, but for five photographs, two dated August 2002 and the remaining dated February 2003.

8 In June and September 2004 the plaintiff's solicitors obtained a report from Dr Gibson which indicated that "the description of the operations carried out by Dr Arianayagam in the notes are rather sketchy and should have provided more information about the actual procedures." In September 2004 the plaintiff's solicitors served a subpoena upon the defendant, requiring all reports, clinical notes, memoranda, diary notes, patient treatment cards, correspondence, photographs, file notes, medical reports, pathology reports and all other documents relating to any treatment received by the plaintiff.

9 A quantity of material was produced in response to this subpoena, largely consisting of brief correspondence between the defendant and the plaintiff’s referring general practitioner, a number of histopathology reports, brief operating room notes, copies of pre-admission forms completed by the plaintiff and copies of brief file notes relating to consultations between the plaintiff and the defendant.

10 In January 2005 the plaintiff's solicitors obtained a report from Dr Olbourne which stated, inter alia, " Dr Arianayagam’s notes reveal very little that can be extracted about the content and adequacy of the preoperative advice. …… There is no indication of the duration of … two consultations, the advice and warnings given and whether photographs of the expected or average result were shown to the patient. ….. I note also that no preoperative photographs were available of the patient’s state beforehand which would be very helpful in assessing the quality of the outcome. …. It is my conclusion that on the balance of probability and with the limitations of the material that has been provided to me, that this patient has not been managed with the care and skill expected of a plastic surgeon practising in the area of breast reduction. …. I am unable to give an opinion about the appropriateness of the communications between the attending doctor, the referring doctor and the patient. The written records are but a notation of the communications between the patient and the doctor and could not possibly be a comprehensive record of that which passed between them.”

Are there Special Reasons for Compelling the Defendant to Answer Interrogatories ?

11 The plaintiff's instructions to her solicitors included the fact that between six and ten photographs were taken by the defendant of her breasts prior to each procedure. Accordingly, in the absence of a large number of photographs, with limited information which allows the plaintiff to ascertain to which procedure the five photographs now produced relate, and given the paucity of the clinical notes produced, the plaintiff asserts that there are crucial evidentiary matters solely within the knowledge of the defendant, that impact directly upon proof of the plaintiff’s case. These circumstances are said to constitute special reasons justifying the order sought.

12 The defendant responds by pointing to the three expert reports served upon him by the plaintiff, all of which offer opinions as to the adequacy and professional standard of the procedures performed upon the plaintiff, including the extent to which the plaintiff should have been warned of the risks of the procedures. It should be observed that the defendant’s filed Defence admits that he is a legally qualified medical practitioner and a specialist plastic surgeon. He admits that the plaintiff consulted him on three occasions. However, every other aspect of the Statement of Claim is in dispute. To date, the defendant has not served any expert reports, although the matter has not yet received a date for hearing. A status conference is listed for 27 October 2006.

13 The defendant submits that, at its highest, the plaintiff’s argument may have demonstrated that the answers to the interrogatories may be necessary in the interests of a fair trial, but that the stringent additional requirement imposed by the Uniform Civil Procedure Rules has not been met. The fact that the plaintiff’s experts are able to express opinions without the information sought by the interrogatories demonstrates, without more, the absence of special reasons, according to the defendant.

14 I am satisfied that an order is necessary in the interests of a fair trial, but that does not dispose of the question whether the plaintiff has established the existence of special reasons.

15 In Bassindale v Western Sydney Area Health Service [2006] NSWSC 703 Studdert J said :-

"Special"; conveys the notion of being out of the ordinary, extraordinary or exceptional. The Oxford Dictionary defines "special" as meaning "of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree". The Macquarie Dictionary states the meaning: "of a distinct or particular character or purpose"; "being a particular one"; "particular, individual or certain"; "different from what is ordinary or visual"; "extraordinary, exceptional".
29 Master Malpass (as he then was) considered the expression in Stavert v Stavert [1998] NSWSC 487 in the context of Pt 23 r 5 of the Supreme Court Rules , concerned with the discretionary power to order discovery. The Master said as to the expression:
"Each case is going to be determined having regard to its own particular circumstances. The task for the Court is to look at the material placed before it and determine whether or not 'special reasons' are present in that case."
30 Master Malpass applied the like approach in refusing discovery in Goulthorpe v State of New South Wales [2000] NSWSC 329, and I see no reason to depart from that approach here.

16 In my view, the loss of a significant quantity of photographs and the limited nature of the contemporaneous notes, clinical records and correspondence produced thus far to the plaintiff differentiate this case from the ordinary or usual medical negligence claim. In circumstances where the plaintiff alleges that each procedure was negligently performed and that the final outcome was one breast larger than the other, it becomes critical to ascertain the extent of removal of tissue from each breast in the course of each procedure. That information is presently unavailable and is unlikely to come from any source other than the defendant himself. The fact that the plaintiff’s experts can express an opinion is no answer ; those opinions are obviously open to challenge on the basis that they rest on an incomplete history.

17 That said, there are a number of the interrogatories served upon the defendant that seek information readily available from other sources, such as professional registers or tertiary institutions, or are of marginal relevance to the substantive issues in the case. It does not, of course, follow that the existence of special reasons with respect to one aspect of the plaintiff’s case justify interrogatories of an unremarkable nature going to another aspect of the plaintiff’s case. I turn to an examination of the interrogatories.

18 Interrogatories 1 to 6 inclusive and 9 relate to the defendant’s qualifications, training and experience in the field of plastic surgery and breast reduction in particular. There is considerable merit in the defendant’s objection to these interrogatories in so far as some of them are readily answered by enquiries of Medical Board registers and professional organisations. During the hearing of the Notice of Motion, the defendant’s solicitors indicated that they were willing to provide a copy of the defendant’s CV and that these were fairly uncontentious matters. The defendant’s experience in breast reduction procedures appears to me to have but a tangential relevance to the plaintiff’s case ; the negligent performance of the procedure, if it be negligent, does not necessarily depend upon the number of times it has been carried out. Accordingly, I regard interrogatories 1 to 6 and 9 as beyond the scope of the order sought.

19 Interrogatories 23 and 24 go further than seeking information about pre-operative photographs. It does not appear to me to be relevant that photographs, if taken, were digital or film, or where those images might be stored. The first part of interrogatory 23 is however, a necessary and legitimate line of enquiry, namely, whether pre-operative photographs were taken of the plaintiff’s breasts on or before 30 August 2001.

20 Interrogatories 32, 33, 34 and 45 do not bear directly upon the performance of the procedures carried out upon the plaintiff. The defendant’s answers to them may well provide the plaintiff with additional material in support of her claims, but they lack a sufficient nexus with the reasons giving rise to the Notice of Motion, that is, the absence of photographs and documents adequately recording the plaintiff’s consultations with, and treatment by, the defendant.

21 On the question of costs on the Notice of Motion, it would have been preferable for the plaintiff to disclose to the defendant the special reasons said to justify the interrogatories when they were first served upon the defendant. That was not done until the plaintiff filed and served Ms McCabe’s affidavit of 11 July 2006 on 12 July 2006. The defendant had requested that information by way of letter dated 18 January 2006 but received no response. In those circumstances, costs on the Notice of Motion should be costs in the cause.

22 The formal orders I make are :-

1. That the defendant answer interrogatories 7, 8, 10 to 22 inclusive, the first part of interrogatory 23, 25 to 31 inclusive, 35 to 44 inclusive, 46 to 49 inclusive.

2. Costs of the motion are to be costs in the cause.

3. The above orders do not prevent the defendant from taking any further objection to individual interrogatories under Rule 22.2 of the Uniform Civile Procedure Rules 2005.

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