Porter v Le
[2016] NSWSC 849
•23 June 2016
Supreme Court
New South Wales
Medium Neutral Citation: Porter v Le [2016] NSWSC 849 Hearing dates: 17 June 2016 Date of orders: 23 June 2016 Decision date: 23 June 2016 Jurisdiction: Common Law Before: Harrison J Decision: (1) Direct that expert evidence at the hearing be given in concurrent session in the categories and groups indicated at [9].
(2) Grant leave to the plaintiff to tender the report of Associate Professor Havas of 7 June 2016 as part of his expert opinion in relation to issues addressed in the 24 February 2015 joint causation conclave report and to call him to give evidence on those issues.
(3) Grant leave to the plaintiff to adduce evidence from Associate Professor Havas on the question of the plaintiff’s symptoms and signs and treatment if he had not been prescribed Panafcort 25 mg twice daily for 5 days.
(4) Grant liberty to apply in respect of orders (2) and (3) if required.Catchwords: PRACTICE & PROCEDURE – medical negligence – conclave of medical experts – where in excess of 20 medical specialists – whether the concurrent evidence of the experts should be given in groups of specialists or one concurrent session of all experts – whether leave should be granted to tender the report of an expert who was unable to attend the causation conclave and to call him to give evidence – whether leave should be granted to adduce evidence from an expert on the plaintiff’s signs and symptoms Category: Procedural and other rulings Parties: Arthur George Porter (Plaintiff)
Phong Le (Defendant)Representation: Counsel:
Solicitors:
D E Graham SC (Plaintiff)
J M Morris SC (Defendant)
Carroll & O’Dea (Plaintiff)
Norton Rose Fulbright (Defendant)
File Number(s): 2007/265150 Publication restriction: Nil
Judgment
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HIS HONOUR: These proceedings are due to be heard over five weeks commencing on 22 August 2016. In excess of 20 medical specialists have been qualified by the parties as experts in a broad range of medical specialties ranging across general practice, otolaryngology, immunology, infectious diseases, microbiology, endocrinology, neurology, respiration and intensive care. Sixteen of these experts participated in a conclave facilitated by Mary Walker on 24 February 2015. A Joint Expert Report of approximately 100 pages on causation has been produced as a result. The parties are at odds as to how these experts might best, or at least conveniently and efficiently, give their evidence in concurrent session when the hearing commences.
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The proceedings have a not inconsiderable history. There are competing and intersecting medical assessments of the plaintiff’s medical condition. Breach of duty and causation are both in contest. Some experts understandably offer opinions on both issues.
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The plaintiff contends that the concurrent evidence of the experts should be given in groups of specialists divided or assembled according to specialty or related specialties. The defendant contends that one concurrent session of all experts should be convened. The former approach yields to the arguably unmanageable conduct of a single concurrent evidence session with so many experts. The latter approach seeks to avoid or obviate the risk that untested or idiosyncratic differences of opinion might emerge if separate isolated concurrent evidence sessions are permitted.
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I was originally attracted to the proposition that a determination of this dispute should more appropriately be left to the trial judge. No allocation of the trial has yet occurred. However, I am now satisfied that the decision cannot conveniently or realistically be postponed as the personal and professional convenience of so many experts with extensive clinical and teaching commitments means that it is imperative that a decision about this is made now.
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In my opinion the defendant’s proposal is not viable. First, so many concurrent witnesses would create insurmountable issues for the Court Reporting Branch. Whether recorded by sound or transcribed by hand, the identification and differentiation of which particular witness in such a large group might have been speaking at any given time appears likely to cause significant problems if it is not in fact completely unmanageable. There are associated difficulties in finding any court room in which so many experts could be properly accommodated without potentially compromising the contributions of some of them.
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Secondly, it seems apparent that some witnesses will be more significant in the resolution of these disputes than others. I have been informed that cross-examination will be quite extensive and, by implication, quite lengthy. It would be an expensive and inefficient use of time to expect several witnesses to attend a concurrent evidence session and not be called on or not be called on significantly. I am led to believe that the whole concurrent evidence process could occupy as much as, or even in excess of, a full hearing week if conducted separately. It would in my view be plainly unreasonable, as well as particularly inconvenient and expensive, to expect all experts to attend all days of the one extended session when the alternative is to require their attendance at a concurrent evidence session limited to their specialty and potentially of shorter duration.
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Thirdly, I am not of the view that consensus on critical issues is imperilled or potentially compromised by the prospect of conflicting outcomes from different groups of experts. It will be apparent following each concurrent evidence session whether or not all or any witnesses have been moved from the position taken by them in conclave and explained or supported in the Joint Experts Report. Indeed, this approach may even produce some forensic efficiencies if the desired cascading exposure of concessions eventuates.
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Finally, I do not consider that the need to recall some witnesses, if it arises, is comparable in terms of inconvenience and delay, or personal and professional disruption, to the requirement for all experts to be present for several days in accordance with the defendant’s proposal. Whether or not to permit further evidence from any particular witness in such circumstances can very easily be left to the trial judge.
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In the circumstances I consider that the concurrent evidence should be given in five separate sessions made up of the following experts:
Dr Bernard Kelly, general practitioner, Dr James Jeong, general practitioner, Professor Thomas Havas, otolaryngologist, Dr Norman Walsh, general practitioner, Professor Connie Katelaris, immunologist, Professor Wormald, otolaryngologist and Dr Kwok Yan, respiratory physician.
Professor Rawlinson, infectious diseases physician, Associate Professor Hudson, microbiologist, Professor Eisen, infection diseases physician and Associate Professor Inglis, microbiologist.
Associate Professor Hooper, endocrinologist, Professor Wakefield, immunologist, Associate Professor Greenaway, endocrinologist and Professor Connie Katelaris, immunologist.
Dr Parker, neuroradiologist, Professor Watson, neurologist, Dr Smith, neuroradiologist, Associate Professor Chambers, neurologist and Associate Professor Lee, intensive care specialist.
Professor Wormald, otolaryngologist, Dr Yan, respiratory physician and Professor Thomas Havas, otolaryngologist.
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In addition to these matters, the plaintiff has sought the following relief by notice of motion filed in court on 17 June 2016:
That the plaintiff be granted leave to tender the report of Associate Professor Havas of 7 June 2016 as part of his expert opinion in relation to issues addressed in the 24 February 2015 joint causation conclave report and to call him to give evidence on those issues.
That the plaintiff be granted leave to adduce evidence on the question of the plaintiff’s symptoms and signs and treatment if he had not been prescribed Panafcort 25 mg twice daily for 5 days, such evidence to be from an infectious diseases physician, otolaryngologist, emergency department specialist and general practitioner.
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The application for leave to tender the report of Associate Professor Havas is supported by the affidavit of Rebecca Tidswell affirmed on 10 June 2016. Ms Tidswell explains why Dr Havas was unable to attend the causation conclave. He was at all times expected to be a participant in the breach and causation conclaves. Ms Tidswell was not cross-examined.
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The defendant’s attitude to the application is set out in a letter dated 24 February 2015 from Norton Rose Fulbright to Carroll & O’Dea. That letter is in the following relevant terms:
“We refer to our letter dated 19 February 2015 and your letter in response dated 20 February 2015 with respect to the non-attendance of Dr Havas at the Causation Conclave on 24 February 2015.
We are instructed to decline your following proposals:
(1) that Dr Havas provides comment on the questions when the joint report is circulated; or
(2) Dr Havas prepare a short report dealing with the issues raised in the joint report.
As we stated in our letter of 19 February 2015, our client does not accept that any views expressed by Dr Havas post-conclave are admissible in circumstances where he did not participate in the meeting of the experts and the preparation of the joint report.”
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In my opinion, the attitude evinced in that letter, in the context of this case, is unreasonable. Dr Havas was unable to attend the relevant conclave for reasons that are apparently not in contest. I am unable to accept that the administration and conduct of this case on behalf of the defendant cannot accommodate the particular convenience of one of a large number of medical experts. This prospect has been alive for more than a year now and it would have been preferable for the plaintiff to have confirmed his position by advancing the current application much earlier. However, the participation of Dr Havas has clearly been and remains an important part of his case. I am unable to detect the existence of the slightest prejudice to the defendant if the application is granted. The defendant should have liberty to apply for relief if I have misconceived the extent of any disruption that this course may have created.
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The second application cannot be disposed of so easily. Put bluntly, the plaintiff wishes to advance what will be characterised as an essential aspect in his case that would appear so far to have been inadvertently overlooked or intentionally disregarded. That aspect is directed first to establishing that Panafcort would have likely masked the plaintiff’s symptoms of deterioration and progression and secondly to ascertaining the likely combination of signs and symptoms with which the plaintiff might have been expected to present if his ingestion of Panafcort as prescribed had not operated to mask or disguise his underlying pathology. Unless I misunderstand the plaintiff’s position, he proposes if successful in this respect to call expert evidence from at least four medical experts in separate fields.
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The plaintiff tendered a letter on this application from Dr Havas to Ms Tidswell dated 9 June 2016. In that letter Dr Havas expresses the opinion that the Panafcort at 0.5mg/kg would more likely than not have masked the symptoms of the plaintiff’s deterioration and progression of, and any febrile response to, the infection from which the plaintiff was suffering between 26 and 31 July 2004. He then sets out what he considers to be the likely things that the plaintiff would have experienced in the hypothetical situation in which he had not taken the Panafcort as prescribed. Dr Havas indicated that in his opinion it is more than likely that he would have experienced some or all of the following:
Increasing facial pain.
Increasing mucopurulent rhinorrhea.
Pyrexia.
Increasing malaise.
Increasing headache.
Rigors.
Anexoria.
Periorbital pain.
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Dr Havas expresses the further opinion that the plaintiff would in such circumstances have been more than likely to present to an emergency department before 31 July 2004 and that in such a case he would have been diagnosed with a serious bacterial sinus infection, complicated by bacteremia and/or septicaemia.
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Unless I have also misunderstood the plaintiff’s case, it has always included the contention that the Panafcort masked the underlying condition that caused the plaintiff’s damage. The present application is directed to establishing the way in which that condition would have manifested itself but for the Panafcort. Dr Havas has suggested what that condition might have been. As presently advised it would not appear to me to be a controversial prediction.
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Against the contingency that I am mistaken about either how the plaintiff’s application alters his case, if it does, or about the defendant’s ability to meet it, I would be prepared to hear further argument about it from each side. Subject to that, however, I would be prepared to permit the plaintiff to rely upon the further report of Dr Havas which I have marked as Exhibit “A” on this application. I am less attracted to the plaintiff’s proposal to call or qualify any further medical specialists other than Dr Havas, who is already involved in the matter as an expert, at this very late stage of the proceedings.
Conclusion
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In the circumstances I will make the following orders and directions:
Direct that expert evidence at the hearing be given in concurrent session in the categories and groups indicated at [9] above.
Grant leave to the plaintiff to tender the report of Associate Professor Havas of 7 June 2016 as part of his expert opinion in relation to issues addressed in the 24 February 2015 joint causation conclave report and to call him to give evidence on those issues.
Grant leave to the plaintiff to adduce evidence from Associate Professor Havas on the question of the plaintiff’s symptoms and signs and treatment if he had not been prescribed Panafcort 25 mg twice daily for 5 days.
Grant liberty to apply in respect of orders (2) and (3) if required.
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Decision last updated: 30 June 2016
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