Pierides v Monash Health (No 2)
[2017] VSC 564
•21 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2012 06888
| JAMIE PIERIDES | Plaintiff |
| v | |
| MONASH HEALTH | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 September 2017 |
DATE OF RULING: | 21 September 2017 |
CASE MAY BE CITED AS: | Pierides v Monash Health (No 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 564 |
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PRACTICE AND PROCEDURE – Medical negligence claim – Duties of legal practitioners to court – Failure to disclose existence of expert evidence in a timely manner – Leave sought by defendant to adduce additional expert evidence – Leave should be granted – Civil Procedure Act 2010, ss 7-9 – Supreme Court (General Civil Procedure) Rules 2015, Order 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 |
HER HONOUR:
By summons dated 11 September 2017, the defendant, Monash Health, seeks an order that it be:
(a) permitted, at trial, to rely upon the evidence of Professor Alec Welsh as outlined in the note of conference with him, signed on 20 July 2017 (‘note of conference’);[1] and
(b) permitted, at trial, to rely upon the evidence of Professor Alec Welsh as set out in his report dated 27 April 2017.[2]
[1]Affidavit of Lisa Michelle Ridd dated 11 September 2017, Exhibit ‘LMR5’.
[2]Ibid, Exhibit ‘LMR1’.
The plaintiff is a minor suing by his litigation guardian. The plaintiff seeks damages from the defendant for negligence in the management of his mother’s labour and his delivery. He alleges that he suffered birth asphyxia, global hypoxic ischemic insult leading to intellectual disability with autistic behaviours, global developmental delay, central diabetes insipidus, renal impairment requiring renal transplant and nephrectomy and hypopituitarism.
The proceeding is fixed for trial on 2 October 2017 on a 25 day estimate before a judge and jury. It was fixed for trial on 20 July 2017 and on the first day of trial the defendant made application to the trial judge, his Honour John Dixon J, to rely upon 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.
His Honour granted leave to the defendant which resulted in an adjournment of the trial date to 2 October 2017.
In granting leave to the defendant, his Honour relevantly said that:
[31]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.
[32]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. …[3]
[3]Pierides v Monash Health [2017] VSC 426 [31]-[32].
The evidence
The defendant relied on an affidavit of Lisa Michelle Ridd, a solicitor at the legal firm representing the defendant, dated 11 September 2017. The plaintiff relied on an affidavit of Chandrika Darroch, a solicitor at the legal firm representing the plaintiff, dated 12 September 2017.
The evidence reveals the following chronology:
(a) on 27 April 2017 Professor Welsh, obstetrician, provided an expert medical opinion in relation to the obstetric and midwifery care provided to the plaintiff and his mother and whether it met a reasonable standard as required and whether the plaintiff’s injuries were caused by an hypoxic event as a result of the defendant’s alleged negligence;
(b) Professor Welsh’s report was served on the plaintiff’s solicitors on 27 April 2017;
(c) on 28 April 2017 a teleconference was held with senior counsel (‘counsel’) for the defendant and Professor Welsh to clarify aspects of his 27 April 2017 report. Counsel informed Ms Ridd that he would prepare a note of conference which would reflect the substance of the comments made by Professor Welsh during the teleconference;
(d) by letter dated 11 May 2017 the plaintiff’s solicitors requested copies of any file notes of any teleconferences with Professor Welsh;
(e) on 17 May 2017, 24 May 2017 and 12 July 2017 Ms Ridd’s office contacted counsel to obtain the note of conference with Professor Welsh;
(f) on 13 July 2017 counsel provided the note of conference with Professor Welsh;
(g) the note of conference was forwarded to Professor Welsh on 13 July 2017;
(h) on 19 July 2017 enquiries were made by email of Professor Welsh as to whether the note of conference required amendment. Professor Welsh responded that he expected to be in a position to review the note of conference later that day. That afternoon, Professor Welsh requested clarification regarding an issue;
(i) Professor Welsh made some amendments to the note of conference and a finalised note of conference was forwarded to him for his signature at 9:09 am on 20 July 2017;
(j) on 20 July 2017 at 10:30 am this matter came before his Honour John Dixon J in this Court. The matter was adjourned for hearing until 2 October 2017;
(k) on 20 July 2017 at 4:51 pm Professor Welsh returned the signed note of conference;
(l) Prior to the directions hearing to be held on 18 August 2017 counsel considered that it was necessary to serve the note of conference having regard to the operation of Order 44;
(m)on 18 August 2017 this matter came before Clayton JR for a directions hearing in this Court. At that time defendant’s counsel informed the Court that Professor Welsh had signed a note of conference, which would be exchanged with the plaintiff;
(n) on 18 August 2017 a copy of the signed note of conference was served on the plaintiff’s solicitors;
(o) on 25 August 2017 the plaintiff’s solicitors wrote to the defendant’s solicitors and informed them that they objected to the note of conference and report of Professor Welsh dated 27 April 2017 on the basis of:
(i) Order 44.03(3);[4] and
(ii) the decision of his Honour John Dixon J made on 20 July 2017.[5]
[4]Supreme Court (General Civil Procedure) Rules 2015.
[5]Pierides v Monash Health [2017] VSC 426.
Contentions
Counsel for the defendant submitted that the note of conference was not raised with his Honour John Dixon J because at the time of the hearing before his Honour, they had not received the signed note of conference and could not make an application to him in respect of a document they could not give the plaintiff’s solicitors.[6] Counsel submitted that, given his Honour’s comments at [31] of the ruling,[7] counsel formed the view that the note of conference could not be served. Counsel candidly informed the Court that his decision not to inform the Court of the draft note of conference on 20 July 2017 was an oversight and that with the benefit of hindsight he would have done things differently. Counsel submitted that before the directions hearing on 18 August 2017, concerns arose because the defendant was put in a position where its solicitors had a signed note of conference but were not allowed to serve it pursuant to John Dixon J’s ruling,[8] but by not serving it were in breach of their obligations to the Court under Order 44.[9]
[6]Transcript of proceedings, Pierides v Monash Health (Supreme Court of Victoria, Zammit J, 14 September 2017) (‘T’)2, LL20-23.
[7]Pierides v Monash Health [2017] VSC 426.
[8]Ibid.
[9]T5, LL6-15.
Counsel submitted that in light of the decision in Hudspeth,[10] which dealt with circumstances where there had been a failure to disclose a third report of an engineer and the consequences that flowed, it was considered prudent to now provide Professor Welsh’s signed note of conference to the plaintiff’s solicitors.
[10]Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors(No 8) [2014] VSC 567.
Counsel referred to Order 44.03(3) which states:
If the expert provides to a party a supplementary report, including a report indicating that the expert has changed the expert's opinion on a material matter expressed in an earlier report—
(a)that party shall forthwith serve the supplementary report on all other parties; and
(b)in default of such service, the party and any other party having a like interest shall not use the earlier report or the supplementary report at trial without the leave of the Court.
…
Counsel for the defendant submitted that the note of conference was not a report indicating that Professor Welsh had changed his opinion on a material matter expressed in his earlier report dated 27 April 2017. Counsel for the defendant submitted that there was no substantive change in the expert’s opinion created by the note of conference.
A key issue in this application is whether the note of conference indicates that Professor Welsh has changed his opinion on a material matter expressed in his 27 April 2017 report.
Counsel for the plaintiff provided a document which, in summary form, compares Professor Welsh’s 27 April 2017 report and the note of conference. Helpfully, the document identified the paragraphs of the note of conference which are said to be new paragraphs, not referred to in the 27 April 2017 report.
While there is some new material contained in the note of conference, I do not consider that the new material alters Professor Welsh’s earlier opinion or that it has not been raised in his earlier report or reports of other experts. In some instances the wording in the note of conference is slightly different to the wording in the 27 April 2017 report, however the substance appears to be unaltered. For example, at paragraph 4 of the note of conference, Professor Welsh comments on the retrospective comments in the hospital record with respect to the CTG recorded at 0950 hours. The note of conference records, amongst other things, at paragraph 4:
It [the note in the hospital record] gives the impression that it was worsening to the point that intervention was required.
In his 27 April 2017 report, on page 6, Professor Welsh states:
My overall impression, from collating these reviews, is of a CTG that at some point between 0720 and 0926 evolved from non-reassuring to pathological, and in that response to this a decision was made for expedited delivery …
In short, the opinion conveyed in both documents suggests there was a change in the CTG over the relevant time indicating the clinical justification for intervention.
At paragraph 5 of the note of conference, Professor Welsh was asked to accept a particular scenario, on which he had not specifically commented. It was a scenario based on the actions of Dr Benson. Counsel for the defendant accepted that this scenario and Professor Welsh’s comments in relation to the scenario are not raised in his earlier report. Counsel for the defendant accepted that paragraph 6 of the note of conference was not raised in the 27 April 2017 report. It was submitted that the issues raised at paragraph 6 of the note of conference were matters about which Professor Highett and Dr Baker have already given opinions. That is, both experts suggest that it was inappropriate to continue the Syntocinon administration at 0830 and at 0850. Plaintiff’s counsel did not dispute that this material was contained in Professor Highett and Dr Baker’s reports. Even though Professor Welsh’s comments in relation to the scenario, at paragraphs 5 and 6, were not contained in his earlier report, they do not take the plaintiff by surprise.
The plaintiff submits that paragraphs 11 to 19 (inclusive) all contained new material not contained in the 27 April 2017 report. In relation to paragraphs 11, 12, 14 and 15, I do not consider that they raise new matters. In relation to paragraph 15, the issues raised are contained within a report by Professor McPhee, which has been exchanged with the plaintiff’s solicitors.
I do not consider paragraph 13 to contain new material but I do consider it to be a broad and somewhat vague statement, which refers with no specificity to ‘the early neonatal period’. Ultimately, such a paragraph may be considered inadmissible on the basis that it is too vague.
Paragraph 14 of the note of conference states that Professor Welsh would defer to a neonatologist with respect to issues of hypotension and the effect of the patent ductus arteriosus. Paragraph 14 is of no consequence for the plaintiff.
Paragraph 15 does raise new material, which ultimately appears to be of some support to the plaintiff’s case rather than creating a new issue requiring the plaintiff’s response.
Paragraph 16 of the note of conference states that:
The patent ductus arteriosus is an issue. In the vast majority of cases it is a consequence of extreme prematurity.
The issue of prematurity is squarely raised Professor Welsh’s earlier report and, as contended by the defendant, the whole nub of Professor Welsh’s earlier report is that the plaintiff’s condition is driven by prematurity. Specific reference to ‘patent ductus arteriosus’ is raised in Professor McPhee’s report and it cannot be said that paragraph 16 takes the plaintiff by surprise.
Paragraph 17 of the note of conference contains new material but it does not go to any allegation about negligence as pleaded. It is therefore arguably not relevant and may be struck out on that basis in due course.
In relation to paragraph 18, the note of conference states:
There is no evidence that delivery one hour earlier would have changed the outcome for the plaintiff.
While the defendant accepts that the wording is new, it is submitted that Professor Welsh has said in his 27 April 2017 report, there is no evidence of birth hypoxia. Therefore, paragraph 18 does not take the plaintiff by surprise because it is based on the proposition that there is no birth hypoxia and accordingly the issue of management cannot be relevant.
In summary, plaintiff’s counsel submitted that the defendant’s application had already been adjudicated by his Honour John Dixon J. It was contended that cases such as this one are very fact sensitive, and therefore they are very language sensitive so that when a medical expert expresses an opinion about a matter, unless the language is plainly consistent with what has been previously expressed, it can be an opinion that has augmented, or elaborated on, or even changed a critical matter. It was submitted that applying the principles in Aon Risk Services Australia Limited v Australian National University[11] (‘Aon’) and having regard to s 9 of the Civil Procedure Act 2010 (‘CPA’), the defendant should not be allowed to rely upon the note of conference.
[11](2009) 239 CLR 175.
It was submitted that in this case there would be real prejudice to the plaintiff if the defendant’s application is allowed, in that the plaintiff will be required to meet, in part, what are new opinions, and even if they are not new opinions, nonetheless the plaintiff is required to review the note of conference to determine if it raises factual matters for investigation. It was submitted that by introducing new evidence at this late stage, it brings about the potential for expanding the issues rather than narrowing the issues in dispute. Plaintiff’s counsel submitted that the note of conference does raise new opinions and the plaintiff’s capacity to meet new material is difficult as parties are in a period when they are supposed to be preparing for trial.
Finally, it is submitted that the Court ought to have regard to the defendant’s pattern of behaviour in the conduct of this litigation, most notably the late service of expert reports and that the Court ought to be cautious in accepting that the failure to produce or exchange the note of conference was an oversight.
Findings
I do not accept that the subject matter of this application has been the subject matter of adjudication by his Honour John Dixon J. His Honour made an interlocutory determination. This does not mean that the defendant or plaintiff are precluded from making any further application.
In light of my comments about the nature of the note of conference and whether or not new opinions are raised, I do not consider that on the whole the note of conference contains new material and even where there is new material, the issues are raised in reports of other experts. Accordingly, the plaintiff is not taken by surprise by any aspect of the note of conference.
The receipt of any new material at this late stage will cause concern and will require a thorough review by the plaintiff’s legal representatives. However, all opinions will need to be carefully reviewed in the trial preparation period and, given its content, the note of conference does not create any significant burden. There was no evidence before the Court that the plaintiff could not meet the evidence contained in the note of conference. Counsel for the plaintiff in submissions only put it as high as it will be difficult, not that the plaintiff could not meet the issues raised in the note of conference. I accept, given the complexity of this case, that the note of conference will create further work for the plaintiff’s legal team in what is no doubt an already significant workload. However, I do not accept that the plaintiff will not be able to properly present or prepare for his case, by reason of the note of conference.
Counsel for the plaintiff submitted that the Court has an obligation to determine the application pursuant to s 9 of the CPA, and that in doing so the Court must further the overarching purpose of the Act. Reference was also made to the principles flowing from Aon.
The Court must have regard to the overarching purpose of the CPA set out in s 7 and must give effect to the overarching purpose as set out in s 8.
Section 9 provides that the Court, when making any order or giving any direction in a civil proceeding, shall further the overarching purpose by having regard to a number of objects as set out in sub-paragraphs 9(1)(a) to (g). Section 9(2) provides that for the purpose of s 9(1), the Court may have regard to a number of matters, relevantly:
(a)the extent to which the parties have complied with any mandatory or voluntary pre‑litigation processes;
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(c)the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
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(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court.
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A troubling aspect of this application is the reason given by the defendant’s counsel as to why the note of conference was not raised with the Court on 20 July 2017. The explanation given was that it was his oversight and that on reflection he should have raised it with the Court. Not having done so, it was only some time before 18 August 2017, when the matter was listed for a directions hearing, that the defendant’s counsel considered it was necessary to serve the note of conference having regard to the operation of Order 44.
It almost beggars belief that in the context of an application for late service of notes of conference on 20 July 2017, in the knowledge that the note of conference was with Professor Welsh for signing, this was not raised with the Court. What is even more disturbing is that the disclosure of the note of conference was only made at a later stage when counsel considered the possible dire consequence for the defendant under Order 44. It was not suggested by plaintiff’s counsel, and nor do I consider, that the conduct was deliberate. However, I agree that the late disclosure is consistent with a pattern of conduct by the defendant’s legal team and, in this instance, counsel for the defendant, which demonstrates a disregard of case management practices and the requirement of disclosure between the parties and to the Court. It is a careless oversight by counsel for the defendant that the Court and the plaintiff should not have to tolerate.
In considering if the Court will exercise its discretion to grant leave to exchange the note of conference, the Court must take into account a number of factors including:
(a) any delay and any prejudice that flows from such delay;
(b) whether any prejudice to the plaintiff could be compensated by costs; and
(c) the need to maintain public confidence in the judicial system.[12]
[12]Aon [5] (French CJ).
The evidence before the Court is that counsel had a teleconference with Professor Welsh on 28 April 2017 to clarify aspects of his report. The note of conference relates to real issues in dispute between the parties and, on its face, it provides clarification of matters raised in Professor Welsh’s 27 April 2017 report. I consider the clarification provided can only be of assistance to the parties and the Court in due course.
Granting leave to the defendant to rely upon the note of conference will not cause any delay in the hearing of the proceeding. There is no evidence that the plaintiff cannot meet any of the matters raised by the note of conference prior to the commencement of the trial. Most of the content of the note of conference does not raise any new critical matters that will require a new expert opinion or raising a new issue with an existing expert.
It is an indulgence to allow the defendant to rely on the note of conference at this late stage. On the one hand, the defendant ought not be rewarded by weighing in its favour the conduct surrounding the application. However, fortuitously for the defendant, allowing the application will not have disruptive consequences, as it did on 20 July 2017.
True it is that allowing the current application, in light of John Dixon J’s comments and counsel’s reasons for the delay, undermines confidence in the administration of justice. However, having regard to all the factors, the principles set out in Aon and the CPA and that justice is always a paramount consideration, I will allow the defendant’s application. While I share the plaintiff’s frustration, such an application is not the occasion for the punishment of a party for its counsel’s ‘oversight’ and delay in making the application.
I take this opportunity to inform the parties that if they anticipate or know of any further applications, including late service of expert reports or notes of conference with experts, the Court and other party must be notified forthwith. I understand that in the trial preparation period considerations may arise for the first time requiring further material, amendments and so on. It is critical that the parties endeavour to narrow the issues in dispute and resolve any outstanding matters between them. For example, plaintiff’s counsel raised the issue of disclosure of counsel’s notes of conference with Professor Welsh. Without having heard submissions, it seems to me that counsel’s notes of conference with Professor Welsh (with any appropriate redactions) should be disclosed.
Having allowed the defendant’s application, I will adjourn any costs application until the conclusion of the trial. While the application erodes the confidence of the public and the profession in the administration of justice and the Court’s case management system, the question of costs and whether the defendant’s counsel and/or legal practitioners should bear those costs is an important matter to be determined in this case. Given the proximity to the trial date, I will hear the parties on costs at a later stage.
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