Pollock v Popovic
[2008] WADC 65
•9 MAY 2008
POLLOCK -v- POPOVIC & ANOR [2008] WADC 65
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 65 | |
| Case No: | CIV:1209/2007 | 20 MARCH 2008 | |
| Coram: | REGISTRAR KINGSLEY | 9/05/08 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application succeeds in part | ||
| PDF Version |
| Parties: | DIANNE ROSEMARY POLLOCK EMIL ANDREW POPOVIC AME HOSPITALS PTY LTD t/as MOUNT HOSPITAL |
Catchwords: | Practice Application for further and better answers to interrogatories |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
EMIL ANDREW POPOVIC
First Defendant
AME HOSPITALS PTY LTD t/as MOUNT HOSPITAL
Second Defendant
Catchwords:
Practice - Application for further and better answers to interrogatories
Legislation:
Nil
Result:
Application succeeds in part
(Page 2)
Representation:
Counsel:
Plaintiff : Mr D Connor
First Defendant : Mr N Beech
Second Defendant : No appearance
Solicitors:
Plaintiff : Hoffmans
First Defendant : Pynt & Partners
Second Defendant : DLA Phillips Fox
Case(s) referred to in judgment(s):
Nil
(Page 3)
- REGISTRAR KINGSLEY:
Plaintiff's statement of claim
1 The plaintiff pleads she was the first defendant's patient and an inpatient of the second defendant. It is pleaded the first defendant is the plaintiff's treating neurosurgeon at all material times. The plaintiff pleads that she underwent a level 3/4 fusion of her lumbar spine, of which there is no complaint.
2 The plaintiff's cause arises because, subsequent to the fusion she developed an epidural haematoma which compressed the cauda equina nerve roots of her spine causing progressive loss of movement and altered sensations in her legs. The loss of movement and altered sensation was reported by the plaintiff to the hospital's nursing staff on 27 August 2004 between the hours of 19.30 and 21.30 hours.
3 At approximately 21.30 hours the plaintiff was transferred from the recovery room to a ward where her cauda equina syndrome gradually worsened. At 07.45 hours on 28 August 2004, the first defendant examined the plaintiff, noted severe weakness in her legs, provisionally diagnosed an epidural haematoma and transferred the plaintiff to an operating theatre. The plaintiff pleads particulars of negligence of the first defendant.
The first defendant's defence
4 The first defendant does not admit that the plaintiff was a patient of his and denies that he was the plaintiff's treating neurosurgeon.
5 The first defendant admits that he owed a duty to take reasonable care in his management of the plaintiff from the L3/4 fusion.
6 The first defendant admits that the plaintiff developed an epidural haematoma between the time of the fusion and when he saw the plaintiff the next morning. The first defendant pleads that he was telephoned at about 23.00 hours on 27 August 2004 and in the course of the telephone conversation:
"1. A nurse informed the first defendant that the plaintiff was complaining of heavy arms and tingling in her legs
2. The first defendant asked the nurse whether the plaintiff had any weakness in her legs and the nurse replied:
- Some
- 3. The first defendant told the nurse to keep the plaintiff under close observation."
7 The first defendant then goes on to deny that the plaintiff has suffered damage to her cauda equina nerve roots and denies the allegations of negligence. Specifically the first defendant does not admit:
1. The plaintiff would not have suffered the cauda equina syndrome; or
2. The extent of the syndrome would have been material or less, if he had subcutaneously and successfully decompressed the haematoma at about 21.00 hours to 21.30 hours or 23.30 hours to midnight on 27 August 2004 instead of about 07.45 hours the next morning.
The plaintiff's application
8 Against that background the plaintiff administered interrogatories in November 2007 for answer by the first defendant. The first defendant objected to answering the interrogatories on grounds that the interrogatories were irrelevant and unnecessary or were a matter of evidence or were fishing to the extent that it sought information beyond which was pleaded.
9 Interrogatories 1 and 2 enquire whether the plaintiff was the first defendant's patient on 27 August 2004 and 28 August 2004. The first defendant has objected to answer on the basis that the answer is personally known to the plaintiff and that it is irrelevant and unnecessary. However, the first defendant had not admitted that the plaintiff was his patient and in my opinion, interrogatories 1 and 2 should be answered.
10 Interrogatory 3 enquires whether the first defendant provided the plaintiff with any medical treatment prior to 27 August 2004. In my opinion, that question is irrelevant and as a consequence interrogatory 4 falls away.
11 Interrogatory 5 enquires as to whether the first defendant was the plaintiff's treating neurosurgeon at any time on 27 August 2004 and 28 August 2004. In my opinion the question is proper. The first defendant has specifically denied that he was the plaintiff's treating neurosurgeon on the basis of the admission of the duty of care. In my opinion the question goes to what may be the content of that duty of care.
(Page 5)
12 Interrogatory 6 enquires whether the first defendant had any telephone conversation that the second defendant concerning the plaintiff at any time between 21.30 hours on 27 August 2004 and 7.30 hours on 28 August 2004. The first defendant objects to answering interrogatories on the grounds that it is vague to broad irrelevant unnecessary seeking evidence and fishing.
13 As the case is pleaded on the part of the plaintiff, the communication between the second defendant and the first defendant is of importance. Whilst the first defendant has pleaded a telephone conversation in par 10 of his defence, interrogatory sets the foundation for interrogatory 7.
14 Interrogatory 7 enquires of the first defendant, the substance of the telephone conversation and repeats what the first defendant has pleaded in par 10 of his defence.
15 Interrogatory 7.3.3.4 then goes on to enquire as to whether or not the first defendant told the second defendant to report to him if the plaintiff's condition worsened or the plaintiff's condition did not improve.
16 In my opinion interrogatories 6 and 7 go to the content of the first defendant's duty of care. The interrogatory is seeking to elicit facts from the first defendant. The plaintiff does not know anything about these conversations. The response by the first defendnat in my opinion to the heart of the plaintiff's contention that the first defendant has been negligent. In m opinion the questions are proper.
17 Interrogatory 8 enquires as to what the first defendant meant when he told the nurse concerned to keep the plaintiff under close observation and whether the first defendant expected the second defendant to telephone him if the plaintiff's condition worsened or did not improve. The first defendant has objected on the basis that the questions go to the first defendant's state of mind and this is not a material fact. The first defendant's counsel submits that the first defendant's state of mind is irrelevant to the determination of whether the first defendant has breached a duty of care.
18 In his defence the first defendant pleads a duty of care and then appears to plead that his duty of care has been discharged by him telling a nurse of the second defendant to keep the plaintiff under close observation. Particular 12.5 of the plaintiff's statement of claim pleads that the first defendant failed to make any or any adequate enquires of the hospital nursing staff concerning the plaintiff's recovery room symptoms, and in particular at par 12.4 failed to instruct the nursing staff at the
(Page 6)
- hospital to report to him any persistence or worsening of the plaintiff's recovery room symptoms.
19 In my opinion, what the first defendant expected of the second defendant, particularly having regard to the alleged comment that the nurse of the second defendant was to keep the plaintiff under close observation becomes important. It would appear to be the first defendant's case that his duty of care was discharged upon that comment.
20 In my opinion, the way the case is framed against the first defendant and the first defendant's response to that case, makes interrogatory 8.1 and 8.2 relevant.
21 In relation to interrogatory 8.3, I am of the opinion that questions 8.3.1 and 8.3.2 are proper questions for answer. The first defendant's case is that by telling the nurse of the second defendant to keep the plaintiff under close observation that his duty of care has been discharged. Therefore, it is a relevant factual issue as to whether the observations recorded conform to the first defendant's instruction and then what the first defendant's expectation would have been of the second defendant.
22 As to interrogatory 8.3.3, I am of the opinion that as the first defendant has admitted the plaintiff developed cauda equina syndrome, the question is irrelevant.
23 For these reasons I am of the opinion that the plaintiff's application succeeds except as to interrogatories 3 and 4 and interrogatory 8.3.3.
24 I will hear counsel as to costs and as to when the answers are to be delivered.
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