Pierides (a minor who sues by his Litigation Guardian Emile Pierides) v Monash Health (formerly known as Southern Health)
[2017] VSC 326
•9 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2012 06888
| JAMIE PIERIDES (a minor who sues by his Litigation Guardian EMILE PIERIDES) | Plaintiff |
| v | |
| MONASH HEALTH (formerly known as SOUTHERN HEALTH) | Defendant |
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JUDGE: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 June 2017 |
DATE OF JUDGMENT: | 9 June 2017 |
CASE MAY BE CITED AS: | Pierides (a minor who sues by his Litigation Guardian Emile Pierides) v Monash Health (formerly known as Southern Health) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 326 |
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PRACTICE AND PROCEDURE – Interrogatories – Rule 30.12 of Supreme Court (General Civil Procedure) Rules 2015 (Vic) – non-compliance with orders - delay – usefulness of interrogatories – missing document – potential vacation of trial date – Application allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L Whalan SC | Lennon Mazzeo Lawyers |
| Ms J Cowen | ||
For the Defendant | Mr A Pillay | Minter Ellison |
JUDICIAL REGISTRAR CLAYTON:
The plaintiff’s application for leave to file and serve interrogatories for the examination of the defendant pursuant to Rule 30.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) is granted.
The plaintiff is to file and serve interrogatories in the form filed with the Court on 31 May 2017, forthwith.
The defendant is to file and serve sworn answers to those interrogatories within the time allowed by the Rules.
Introduction
This is an application by the plaintiff, Jamie Pierides (“Jamie”), an infant who sues by his litigation guardian Emile Pierides, for leave to file and serve interrogatories on the defendant.
The application is opposed by the defendant on the basis that the plaintiff has failed to comply with numerous orders for interrogation and that it is now too late as the matter is fixed for trial on 18 July 2017. Furthermore, the defendant submits that answering the interrogatories would be onerous.
Background to the Case
This case concerns a claim for damages arising from the circumstances of Jamie’s birth. On 23 December 2006 Jamie’s mother, Mrs Seoud, presented to Cabrini Hospital at less than 28 weeks gestation with abdominal pain and pre-term rupture of membranes. She was transferred to Monash Medical Centre and ultimately gave birth on 24 December 2006.
The issue in this case is the management of Mrs Seoud during the labour and birth at Monash Medical Centre, and, in particular, whether any deficiencies in that management caused or contributed to the injuries Jamie has sustained.
Birth management, particularly at major tertiary institutions, frequently involves electronic monitoring of the maternal and foetal heartrate. This monitoring is recorded in a Cardiotocography trace (“CTG trace”), which shows the foetal heart rate responding to contractions during the labour and is used by medical professionals as one of the ways to determine whether the labour is progressing as expected or whether the foetus is showing signs of distress.
In this case, CTG monitoring was undertaken and notes about the CTG trace were recorded in the medical records of Mrs Seoud. However, the actual CTG trace is not able to be located and has either been misplaced or inadvertently destroyed.
In the absence of the actual CTG trace, the experts retained by both sides are only able to make assumptions about what the CTG trace would have been likely to show, based on the notes in Mrs Seoud’s medical record, their own experience, and Jamie’s condition at birth and subsequently.
It is clear from the expert reports that the absence of the CTG trace is a significant impediment to both sides being able to establish what actually happened during the birth and therefore whether the management of the labour was reasonable.
It is also clear that the absence of the CTG trace may significantly prejudice the plaintiff’s ability to prove that the management of Mrs Seoud’s labour by Monash Medical Centre was negligent.
Chronology of Orders for Interrogatories
Although this matter was issued in 2012 by way of generally endorsed writ, it was not until 18 June 2014 that a Statement of Claim was filed and the Writ was served on the defendant. The matter has been active since that time.
On 13 October 2014 the matter was fixed for trial on 8 February 2016 and parties were ordered to file and serve affidavits of documents by 30 October 2014 and any interrogatories by 27 February 2015.
On 15 April 2015 the defendant filed an Affidavit of Documents which set out that the CTG trace for Mrs Seoud had last been in the possession of the defendant (“Monash Health”) on or about 23 or 24 December 2006.
On 5 November 2015 Associate Justice Daly ordered Monash Health to file an affidavit setting out the efforts it had made to locate the CTG trace and further details of when it was last in its custody. The trial date was vacated and re-fixed for 1 February 2017.
By Affidavit dated 14 December 2015, Ms Nerida Hand, midwifery team leader at Monash Medical Centre, Clayton, set out:
a.the process for reporting on and storing CTG traces at the time of Jamie’s birth;
b.the steps taken to locate the relevant CTG trace; and
c.that despite these steps the CTG trace could not be found and its absence could not be explained.
In August 2016 the solicitors acting for Jamie changed.
On 19 August 2016 a new timetable was set which included orders that the trial date be vacated and re- fixed for 18 July 2017 and that interrogatories be served by 15 October 2016.
On 27 October 2016 the solicitors for Jamie advised the Court that Counsel was drafting interrogatories but that the interlocutory timetable was otherwise on track.
On 11 April 2017 Catherine Henry, the solicitor for Jamie, swore an Affidavit setting out that, prior to drafting interrogatories, Counsel for Jamie wished to review the original medical records of Mrs Seoud’s labour. The Affidavit set out her attempts to arrange an inspection of those original records. Jamie’s original records were inspected on 22 November 2016, but Mrs Seoud’s records were not available at that time and Ms Whalan, of Counsel, was advised by a representative of Monash Health that the CTG trace ‘should be in the mother’s original records’.
The inspection of Mrs Seoud’s original records did not occur until 21 April 2017 at which time it was confirmed that the CTG trace was not with those records.
After that inspection, Jamie’s solicitors indicated their intention to interrogate Monash Health and drafted interrogatories dated 30 May 2017.
It is those interrogatories that are the subject of this application.
Plaintiff’s Arguments
Counsel for Jamie submitted that the interrogatories which he seeks to serve on Monash Health:
a. are confined to 14 questions;
b. relate to a short period of time during Mrs Seoud’s labour between 7.45am on 24 December 2016 and about 9.50am on 24 December 2016;
c. are likely to assist the parties to narrow the issues in dispute; and
d. are relevant, particularly because the CTG trace is missing.
Counsel further submitted that, although the interrogatories were not served by the date ordered by Justice Zammit, the delay was a consequence of the difficulties in arranging inspection of Mrs Seoud’s original record, for which both parties shared some blame.
Defendant’s Arguments
Counsel for Monash Health submitted that leave to interrogate ought not be allowed as it is too late and the trial is now only seven weeks away.
Counsel submitted that, depending on the answers to those interrogatories, those answers might need to be put to the various experts retained by both parties, who would then potentially need to provide supplementary opinions. Should this occur, the trial date would likely need to be vacated, in circumstances where it had already been vacated on two prior occasions, one of which was opposed by Monash Health.
Counsel further submitted that the interrogatories would require Monash Health to seek answers from the various staff members who had made entries in Mrs Seoud’s medical record, and it would be onerous and time consuming to locate those staff members, some of whom were no longer employed by Monash Health and some of whom were now overseas.
Relevant Principles
Pursuant to r 30.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“the Rules”), if the Court gives directions about interrogatories or answers to interrogatories, no party may, without further order, serve interrogatories on any other party except in accordance with those directions.
Under Rule 32.02(1) interrogatories must relate to a question in issue between the parties.
The resolution of any interlocutory application, including an application for interrogatories, requires the Court to consider the Civil Procedure Act 2010 (Vic) (“the Act”) and in particular the overarching purpose of the Act and the Rules to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.
Much judicial time has been spent discussing the usefulness or otherwise of interrogatories[1] and some jurisdictions have dispensed with interrogatories as of right.[2] However, this Court has maintained an entitlement to interrogate, subject to some constraints,[3] as it considers that there are circumstances in which the careful use of interrogatories can be of assistance to the parties and to the Court.
[1] See for example Bendigo and Adelaide Bank Ltd v Crown-Melbourne Ltd [2012] VSC 493.
[2]County Court Civil Procedure Rules 2008 (Vic) r 34A o 17.
[3] Supreme Court of Victoria, Practice Note SC CL 3 – Personal Injuries List.
Questions in Issue
Monash Health deny all allegations of negligence and deny that Jamie was acidaemic at birth, that he had symptoms consistent with birth asphyxia, and that, as a result of Monash Health’s management of Mrs Seoud’s labour and delivery, Jamie suffered injury, loss and damage.
These denials put in issue:
a. all aspects of Monash Health’s management of Mrs Seoud’s labour delivery;
b. Jamie’s condition at birth and immediately after birth; and
c. the cause of Jamie’s injuries.
Jamie seeks to interrogate Monash Health about notes made in 6 pages of Mrs Seoud’s medical records. These are progress notes from 0745 on 24 December 2006 to some point after 0950 on 24 December 2006, as well as a one page summary which contains, inter alia, a note reading ‘lactate 3.3mmol @ 0940’ (“the lactate result”).
A number of the interrogatories relate to observations that the authors of the progress notes appear to have made about the CTG trace. For example ‘reduced variability’, ‘persistent variable decelerations’, ‘prolonged decelerations’ and ‘ongoing foetal tachycardia’ all describe observations taken from the CTG trace.
A number of the interrogatories seek to establish what steps were taken by personnel during Mrs Seoud’s labour and the timing of those steps. Interrogatories about the CTG trace and the steps taken during labour go to the question of how Monash Health managed Mrs Seoud’s labour.
The final interrogatory relates to the lactate result which goes to Jamie’s condition at birth and immediately after birth.
The interrogatories are confined to questions in issue between the parties and answers to those interrogatories would tend to narrow the issues in dispute.
The Delay
It is never ideal when interlocutory timetables are not complied with and it is especially concerning where failure to comply with a timetable jeopardises a trial date.
Much has been said about the potential for irreparable prejudice to a party where a trial date is vacated through no fault of its own.[4]
[4]AON Risk Services v Australian National University (2009) 239 CLR 175.
However the potential harm caused by the late service of interrogatories in this case must be carefully assessed and weighed against the potential value in granting leave to interrogate.
There have been three orders for interrogatories that have not been complied with. Both parties bear at least some of the blame for the delays in complying with the interlocutory steps. It is clear that arranging an inspection of the original medical records was not straightforward and was beset by delays, not all of which rest with the plaintiff’s camp.
It would have been open to the plaintiff to serve interrogatories based on the copies of records available, and then seek leave to reinterrogate after the original records had been inspected. This did not occur, and the question for this Court is now whether, having waited until after inspection of the original records, the plaintiff is too late to interrogate.
Decision
It may be that the relevant staff members have little or no recollection that will assist in answering the interrogatories in a meaningful way. In that event it is unlikely that those answers will need to be the subject of further expert comment and the trial date will likely not be jeopardised. Counsel for Jamie submits that any suggestion that the trial date will be vacated is premature.
At this stage it is not clear that, by allowing the interrogatories, the trial date would inevitably be vacated.
Monash Health says that a further reason that the interrogatories should not be allowed is that it is onerous and time consuming to answer. Apart from a submission from the bar table, there was no evidence before the Court as to what would be involved in locating the relevant staff members and obtaining answers, or how long that process would be likely to take.
Nevertheless, it is not difficult to imagine that locating the staff members responsible for the various entries in Mrs Seoud’s medical records, asking them to examine the record and recall events of more than 10 years ago and convert those recollections into written answers, is likely to be a difficult and time consuming task. This is so whether the answers were provided on 15 December 2016 in accordance with the orders of Justice Zammit, or if they are provided now.
In this case an important piece of evidence under the control of Monash Health is missing. Through no fault of his own, Jamie is unable to establish what that CTG trace would have shown. The best that he can do is to seek answers from those who saw the CTG trace and made contemporaneous notes about their observations.
Further, the medical record provides no further information about the lactate result or how it was obtained. A number of experts have commented on the lactate result and expressed a view about whether it indicates a reading of umbilical cord blood gas and, if so, whether it indicates that Jamie was subjected to an intrapartum hypoxic ischaemic event.[5]
[5] Affidavit of Catherine Henry sworn on 25 May 2017 [15]-[17].
Further information about the lactate result would assist the Court and enable the solicitors for Jamie to seek further expert opinion if appropriate, and to advise Jamie accordingly.
Weighing the potentially onerous and time-consuming nature of the task against the potential usefulness of the answers to both the parties and the Court, I am satisfied that leave to interrogate should be granted and the application allowed.
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