Pierides v Monash Health
[2017] VSC 426
•20 July 2017 (Reasons 25 July 2017)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2012 06888
| JAMIE PIERIDES | Plaintiff |
| v | |
| MONASH HEALTH | Defendant |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 July 2017 |
DATE OF RULING: | 20 July 2017 (Reasons 25 July 2017) |
CASE MAY BE CITED AS: | Pierides v Monash Health |
MEDIUM NEUTRAL CITATION: | [2017] VSC 426 |
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PRACTICE AND PROCEDURE – Medical negligence claim – Leave sought by defendant to adduce additional expert evidence on first day of five week trial – Opinion evidence going to causation – Whether leave should be granted – Adjournment – Whether trial date should be vacated – Overarching purpose – Civil Procedure Act2010, ss 7–9, Supreme Court (General Civil Procedure) Rules 2015, O. 44.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms L. Whalan, with Ms J. Cowen | Catherine Henry Lawyers |
| For the Defendant | Mr J. Noonan QC, with Mr A. Pillay | Minter Ellison |
HIS HONOUR:
This proceeding was allocated to me for trial, with a jury, commencing 20 July 2017 on an estimate of 25 days, the third trial date allocated by the court. I made orders, starting that I would later publish my reasons, including the following.
1.The defendant is granted leave to rely upon the expert opinions contained in the conference notes dated:
(a) 12 July 2017 and 19 July 2017 in respect of Dr Henschke; and
(b) 13 July 2017 in respect of Associate Professor Umstad.
2.The trial of this proceeding is adjourned to 2 October 2017, to be heard before a judge and jury on an estimate of 25 days.
3.The defendant must provide Order 44 statements on or before 27 July 2017, setting out the necessary ancillary material, letters of instruction, sources of documents and other matters required by Order 44, on which the further opinions of Dr Henschke and Associate Professor Umstad referred to in paragraph 1 of this order are based.
These are my reasons.
The plaintiff, who is a minor suing by his father as litigation guardian, seeks damages from the defendant for negligence in the management of his mother’s labour and birth. The plaintiff alleges that he suffered birth asphyxia, global hypoxic ischaemic insult leading to intellectual disability with autistic behaviours, global developmental delay, central diabetes insipidus, renal impairment requiring renal transplant and nephrectomy, and hypopituitarism.
The central factual inquiry for the trial appeared to be whether there were any deficiencies in the management of the plaintiff’s mother during her labour and the plaintiff’s birth at Monash Medical Centre and, secondly, whether any proved want of reasonable care in that management caused or contributed to the plaintiff’s injuries.
Relevantly for present purposes, the issue of causation was in contest. If there was negligence, what, if any, injury has the defendant caused the plaintiff to suffer and if there was not negligence, would the plaintiff have suffered no, or fewer and less severe, consequences.
Prior to empanelment of the jury, the defendant applied to rely on conference notes supplementing the expert evidence of two witnesses, Professor Henschke and Associate Professor Umstad and sought leave to further amend its defence. The critical application was to rely at trial on Professor Henschke’s conference notes dated 12 July 2017 and 19 July 2017. The applications were supported by an affidavit by the defendant’s solicitor to which the plaintiff had had no opportunity to reply.
The plaintiff’s mother was admitted to the Monash Medical Centre around 0900 on 23 December 2006. She was 27 weeks and 5 days pregnant with the plaintiff and had a two day history of spotting and abdominal pain. The plaintiff was born around 0926 on 24 December 2006. Expert evidence focussed on the management of the plaintiff’s mother in the intervening period, being post her admission.
A key issue in dispute is whether the plaintiff suffered a hypoxic injury immediately prior to his birth and whether his injuries were caused by the obstetric management of his mother’s labour and his delivery. The defendant recorded a lactate reading at around 0940 on 24 December 2006 that its experts contended demonstrated that the plaintiff was not acidotic at birth.
Dealing with this issue, the defendant served the report of Professor Henschke dated 29 July 2015. The plaintiff’s expert, Professor Colditz reported on 26 August 2016, 16 March 2017 and 18 June 2017. His most recent report called into question whether the reading at 0940 was likely to be accurate and whether Professor Henschke had properly considered the histopathology of the plaintiff’s explanted kidney. For the plaintiff, Dr Harbord, in reports dated 13 March 2014, 24 February 2017 and 12 May 2017, also opined on the likely accuracy of the 0940 lactate reading. In trial preparation, Professor Henschke was asked about these issues and it became clear to the defendant’s advisers that he would express an opinion that went beyond his 29 July 2015 report.
In conference notes from his conference with the defendant’s legal advisers, Professor Henschke comments on issues regarding the acidotic status of the plaintiff at the time of delivery and concludes that the plaintiff could not have sustained any form of hypoxic injury at the time of birth. After Professor Henschke submitted his original report, the plaintiff required a renal transplant on 12 November 2015, and nephrectomy of an endogenous kidney on 25 April, 2016. Following the latter event, Dr McGregor’s histopathology report dated 3 June, 2016 was significant and it was examined by the plaintiff’s experts but, not, it would seem, in a timely way by Professor Henschke. When he considered it, Professor Henschke concluded that the plaintiff may have been affected by a single hypoxic ischaemic insult at least 48 to 72 hours prior to delivery, that affected the plaintiff’s renal function but did not produce the classical features of such an event at the time of birth. In his view, by reference to other observations and conclusions, it was difficult to contend that, in the hours prior to delivery, the plaintiff suffered a profound ischaemic event.
Professor Henschke will opine that a significant period of under perfusion of the kidneys occurred for unexplained reasons in the period prior to his mother’s admission. That hypoxic event did not affect cerebral tissue.
The defendant conceded that Professor Henschke’s supplementary report, comprising the conference notes, were out of time but contended that the delay was consequent on the plaintiff amending his statement of claim and serving further expert reports. The defendant needed to rely on this supplementary report to meet a key issue in the trial being the clash between experts on a core issue affecting causation about the significance of a cord blood lactate reading taken at the time of birth and whether the plaintiff could have sustained any form of hypoxic insult when under the management of the defendant. The defendant submitted, and I agree, that the resolution of the real issues in dispute in this proceeding requires that the experts engage with the opinions and analysis that are properly based on the evidence that will be led at the trial and the clarification that may bring, particularly pertaining to the plaintiff’s kidney tissue pathology.
On the evidence before me, the defendant had inflicted on itself any prejudice that it may suffer through denial of leave to rely on the additional material. No reason was offered as to why the material could not have been served in accordance with the court’s directions. The amendments to the statement of claim did not go to this issue and although the further expert evidence filed by the plaintiff did so, the source material was, as noted above, available to the defendant well in advance of relevant deadlines. Counsel accepted that there was relevant delay by the defendant for which he could not offer a proper explanation, and did not submit that it would not have been entirely prudent to go earlier to Dr Henschke.
To some extent the defendant’s failure to explain its default diminishes its probative value in the exercise of the necessary discretionary judgment. A defendant is obliged not only to provide an explanation for egregious delay, but to show good faith and to bring to the court a fulsome explanation. Only the conduct of trial counsel approaches a demonstration of the necessary good faith. It should be noted that the application to rely on the additional material should have been brought as soon after 12 July 2017 as was practicable as there was one other proceeding that could have, but was not, heard on its listed date because the defendant appeared unnecessarily to have reserved the application to the first day of trial.
Dr Umstad’s conference notes dealt with other issues relating to the obstetric management of the mother's labour, predominantly on 24 December 2006, including the plaintiff’s allegations about when it was that the CTG trace, which was utilised to monitor the foetal heart rate, identified problems that ought to have put medical staff on notice, whether action ought to have been taken to expedite delivery and, further, whether it was appropriate to administer Syntocinon in the light of what is said to have been shown by the CTG trace.
The plaintiff was not compromised in responding to Dr Umstad’s further opinions and in the circumstances I need say no more about those conference notes. However, the plaintiff asserted that he was not able to respond to Professor Henschke’s additional material before or during the trial and that the court ought to refuse leave to the defendant to rely on it. Both parties were anxious to maintain the trial date, although it was evident that, absent other considerations, neither party could at the present time fairly contest the issues arising. Regrettably, trial dates are too frequently wasted for similar reasons.
The proceeding had been managed by the court in the personal injuries list and the plaintiff contended forcefully that the defendant should be refused leave on three grounds, being non-compliance with case management directions, unexplained delay, and irreparable prejudice.
Although the proceeding was commenced on 10 December 2012, the plaintiff delayed service of the writ until June 2014. The defendant filed its first iteration of its defence on 28 August 2014, an amended defence was filed on 20 June 2017 and the defendant sought, and was granted, leave to file a further amended defence substantially in the form of a proposed pleading dated 30 June 2017.
The plaintiff contended that, by service of the conference notes on 12 July 2017, the defendant has breached numerous court orders. Directions required the service of further medical reports on 14 April 2017, with mediation scheduled for 28 April 2017. The matter did not resolve at mediation. The proceeding returned for post-mediation trial directions when orders were made for the plaintiff to serve any further expert reports and the defendant to serve a report by an occupational therapist by 18 June 2017. At a final directions hearing on 30 June 2017, Zammit J was not told that the material served on 12 July was even anticipated. Plainly, the need for the further material now being proposed was not identified by the defendant until very recently.
I am satisfied that the reason for the late service of the additional material is that it was only identified by trial counsel in the course of preparation for trial, evidencing a want of proper preparation for trial by the defendant. So much is clear because the basis for Professor Henschke’s supplementary opinion is a report dated June 2016 that has been available to the defendant since August 2016. Counsel did not contend otherwise. The affidavit of Ms Ridd provided neither justification nor explanation for the defendant’s failure to properly instruct Professor Henschke for timely consideration of Dr McGregor’s histopathology report or the opinion of Professor George Werther, the plaintiff's treating endocrinologist, dated 23 September 2016 and served soon after. This unexplained omission was a powerful consideration for discretionary rejection of the conference notes.
The plaintiff submitted a table that identified the new matters that extended Professor Henschke’s opinion beyond the parameters of his report of 29 July 2015. The plaintiff also contended that his case is that hypoxic ischaemic injury occurred late in second stage labour and the effects of the injury continued up until delivery and resuscitation. For the defendant to raise on the eve of trial, a different timeframe of 48 to 72 hours prior to delivery for the occurrence of an hypoxic ischaemic insult, necessarily causes significant prejudice to the plaintiff.
This new opinion is a matter that requires factual investigation, before being submitted not just to the plaintiff’s existing experts but, possibly to other experts who would need to be identified and instructed. Professor Henschke is a neonatologist but the timeframe he proposes is within the expertise of foetal medicine experts, and perhaps within a sub-speciality of antenatal or foetal medicine nephrologists. The defendant did not dispute that investigation and further opinions were a necessary response to the supplementary opinion of Professor Henschke, and the plaintiff’s estimate of 6–8 weeks to do so was not considered inappropriate.
The plaintiff further objected that the conference notes did not appraise him of the material on which the supplementary opinion was based because there was no instructing letter or list of documents provided. All that can be gleaned is that Professor Henschke obviously had the material postdating his earlier report that he specifically referred to in the conference notes. The plaintiff cannot know what assumptions Professor Henschke was invited to make as a basis for these supplementary opinions.
The plaintiff’s contentions in support of refusing the defendant leave to rely on the additional material were based on the principles found in Aon Risk Services Australia Limited v Australian National University,[1] Eaton v ISS Catering Services Pty Ltd,[2] and ss 7–9 of the Civil Procedure Act 2010. The plaintiff would seek to vacate the trial date in order to meet this further material if I permitted its use. I accept that the plaintiff would not have been able to properly present his case by attempting to meet this further material after the trial commenced. It was clear that exercise of the discretion to permit the defendant to rely on the additional material and the discretion to vacate the trial were the two sides of a coin.
[1](2009) 239 CLR 175 (‘AON’).
[2](2013) 42 VR 635.
In furthering the overarching purpose in a civil proceeding, the following objectives must be considered. First, the court must achieve the just determination of the civil proceeding. This objective is multi-faceted, but it encompasses for present purposes ensuring that a central issue in this proceeding is resolved by reference to opinions based on the evidence. The plaintiff’s claim is very substantial and it is particularly complex, even in the context of negligent birth cases. Dealing with the proceeding in a manner proportionate to its complexity is a further objective when furthering the overarching purpose. As I have noted, the relationship between the supplementary opinions and the critical issue of causation of the plaintiff’s injury is central to the proceeding.
Both AON and the Civil Procedure Act dictate that case management and the allocation of scarce court resources are important and relevant considerations. I have taken such matters into account, making specific inquiries before making my decision as to the delay involved in relisting if I vacated the trial date and whether the court’s resources would be unreasonably strained. It became relevant that the court could accommodate refixing the proceeding for trial and that it was possible to do so on 2 October 2017.
As I understood the plaintiff’s contentions, he did not dispute the relevance and importance of the supplementary opinions to the issues in the proceeding. The plaintiff’s principal concern was that delay would necessarily be occasioned to consider, investigate and respond to this material and that such delay would cause him prejudice. The plaintiff accepted that the primary source of prejudice – his inability to investigate and answer the material – was ameliorated by an adjournment. The question became whether the prejudice to the defendant in being excluded from contesting causation was more significant than prejudice to the plaintiff through an adjournment of the trial until 2 October 2017.
Noting that these submissions were advanced without knowledge that the court could re-fix the trial on that date, the plaintiff submitted that wasted costs, both legal and for witnesses would be extensive. The application was made on day one of a 5 week trial involving experts based both interstate and overseas. Further, there would be considerable inconvenience and stress to individuals of the kind that French CJ referred to in AON, which is evidenced by the report filed the defendant's occupational therapist dated 22 June 2017. Although such inconvenience and stress is not compensable by costs, it is considerably ameliorated by only being suffered for the relatively short delay in the adjournment that is proposed.
The second matter concerned the way damages are calculated. The plaintiff requires very significant levels of care that is primarily delivered by his parents. For however long the plaintiff's parents have to keep delivering that care themselves, compensation for that care is assessed under the statutory rate and not the commercial rate.
The defendant invited me to note, in response to this submission, the plaintiff’s delay in prosecuting his claim. Assuming that the plaintiff was guilty of delay, I do not consider such periods relevant. The only period to be analysed is the defendant’s period of delay between the discovery of the reports of Dr McGregor and Professor George Werther and the dates by which, by court direction, expert medical evidence was to be served, which, as I have said, is unexplained.
But for the court’s ability to accommodate the proceeding in October this year, I would have afforded these consideration greater weight in my deliberations. If it should turn out that I was wrong in my assessment of the competing considerations, I consider that the greater risk of harm would flow from denying the defendant the opportunity to run the defence that the plaintiff’s injury was not caused by its conduct. Not without considerable hesitation, I have concluded, after carefully weighing the competing considerations, that permitting the defendant to rely on the additional material, on conditions, vacating the trial date and re-fixing the trial for 2 October 2017 is the appropriate course to adopt and I so ordered.
The following conditions apply. First, in terms of the defendant’s ability to adduce evidence at trial, it will be confined to the additional material it has served as identified in the court’s order and r 44.05 will be applied as if the conference notes were a report served in accordance with r 44.02(2). In other words, with one exception, the defendant is not being afforded the opportunity to use any of the time between now and 2 October 2017 to augment or refine the additional material. Secondly, the defendant must provide Order 44 statements on or before 27 July 2017, setting out the necessary ancillary material, letters of instruction, sources of documents and other matters required by Order 44, on which the further opinions of Dr Henschke and Associate Professor Umstad set out in the relevant conference notes are based.
The third condition I ordered was that the costs of and occasioned by the orders that I made be taxed on an indemnity basis and paid by the defendant. I further ordered that such costs may be taxed immediately. As the defendant offered no opposition to the costs order, it is unnecessary to set out my reasons for so ordering. Suffice it to say, taxation on that basis ought to substantially, but not completely, ameliorate the prejudice that the plaintiff will otherwise suffer in circumstances where the defendant seeks an indulgence necessitated by unexplained non-compliance with case management directions. Further, in the particular circumstances of this case, that unexplained non-compliance was unsatisfactory conduct on the defendant’s part.
My reasons for permitting the defendant to file a further amended defence appear from the exchanges with counsel on the hearing of the application and need not burden these reasons.
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