Portia Gatti bhnf Rebecca Gatti v Calvary Health Care Riverina Limited
[2015] NSWSC 101
•24 February 2015
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New South Wales |
Case Name: | Portia Gatti bhnf Rebecca Gatti v Calvary Health Care Riverina Limited |
Medium Neutral Citation: | [2015] NSWSC 101 |
Hearing Date(s): | 6 & 20 February 2015 |
Decision Date: | 24 February 2015 |
Jurisdiction: | Common Law |
Before: | Harrison J |
Decision: | 1. Grant leave to the plaintiff to discontinue the proceedings against the first defendant. |
Catchwords: | MEDICAL NEGLIGENCE – where infant plaintiff suffering from viral sepsis – where she alleges defendants failed to treat the condition appropriately or in a timely way – where plaintiff seeks leave to discontinue against first defendant – where second defendant does not consent unless conditional costs orders made – leave granted |
Legislation Cited: | Uniform Civil Procedure Rules 2005 |
Category: | Procedural and other rulings |
Parties: | Rebecca Gatti (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2011/119152 |
Publication Restriction: | Nil |
JUDGMENT
HIS HONOUR: Portia Gatti was born on 1 May 2008. Her birth was attended by a suspicion that she may have developed cerebral palsy secondary to viral septic shock and complicated coagulopathy, severe metabolic acidosis and pre renal failure. The statement of claim commencing these proceedings was accompanied by a report from Associate Professor James Tibballs dated 29 July 2010 in compliance with UCPR 31.36. His conclusions were expressed succinctly as follows:
"Viral septic shock was a cause of Portia Gatti's brain injury. Opportunities to prevent the illness, to recognise the severity of the illness and to treat it appropriately were not taken and could not be regarded as competent professional practice. The failure to recognise the illness early in its course and the delay in obtaining expert assistance to give adequate treatment more likely than not increased the risk of injury."
The statement of claim as originally filed named only Calvary Health Care Riverina Limited as a defendant. The particulars of negligence alleged against it were these:
“(a) Failing to afford the plaintiff proper medical, specialist and other treatment.
(b) Failing to heed the complaints in respect of the plaintiff’s discolouration, impairment of breathing and coldness of touch.
(c) Failing to carry out a proper examination of the plaintiff.
(d) Failing to keep the plaintiff under proper observation.
(e) Failure to carry out and take appropriate steps for the resuscitation of the plaintiff.
(f) Failing to identify and observe that the plaintiff had difficulty with respiration and circulation in a timely manner.
(g) Failing to make observation and summon specialist paediatric help on or about lunchtime on 5 May 2008.
(h) Failing notwithstanding identification by the defendant’s servants and agents at 02.30 hours on 6 May 2008 to commence mechanical ventilation until 12.39 hours.
(i) Failing to contact the Neonatal Emergency Transport Service (NETS) in a timely manner such that there was an 8 hour delay from the time of the observation of the plaintiff’s illness at 02.30 hours on 6 May 2008 and such contact was made not until after 10.00 hours on 6 May 2008 before advice was sought.
(j) Failure to commence the infusion of an inotropic drug forthwith shortly after the observation at 02.30 hours on 6 May 2008.”
On 23 July 2012 an amended statement of claim was filed joining Dr Natalie Snyman as a second defendant. The particulars of negligence alleged against the second defendant were these:
“(a) Failing to carry out a proper examination of Portia.
(b) Failure to carry out and take appropriate steps for the resuscitation of Portia.
(c) Failing to identify and observe that Portia had difficulty with respiration and circulation in a timely manner.
(d) Failure to recognise the seriousness of Portia’s condition.
(e) Failing to contact the Neonatal Emergency Transport Service (NETS) in a timely manner such that there was an 8 hour delay from the time of the observation of Portia’s illness at 02.30 hours on 6 May 2008 and such contact was made not until after 10.00 hours on 6 May 2008 before advice was sought.”
When the matter came before me on 6 February 2015 I was informed that I would be asked to approve a settlement of the proceedings which was to take the form of an application by the plaintiff for leave to discontinue against the first defendant. I was not at that time provided with material sufficient to permit me to form a view about whether or not it was appropriate to approve what the parties had proposed or to grant the leave that was sought. Accordingly, I directed that the matter return to me on 20 February 2015 and that proper material be filed in support of the application.
When the matter returned I was provided with affidavits from solicitors Julian Patrick McGrath, Paul Baram and Campbell Jeremy, each sworn or affirmed on 19 February 2015. To the latter affidavit was annexed a report dated 22 October 2014 from Dr John Lawson, a paediatric neurologist. He was asked and answered two questions as follows:
“1. If Portia has any ongoing complaints due to the septic shock that she suffered while a baby?
The answer to this is in my letter dated 21 July 2014. ‘The major issues expressed by the family are Portia being a little less confident and reserved with her physical activity. Perhaps there is a question mark about her writing skills, overall though her reading and other cognitive skills appear to be functioning in the normal range’.
2. Is there any evidence of brain damage?
There is no evidence of damage on the brain MRI and her clinical symptoms and signs I would regard as very mild. The question is what proportion of the damage can be attributed to the failure to treat the septic shock properly? My answer is that is an unanswerable question. Anywhere and including 0-100%.
Again in my letter 21 July 2014 I state that her perinatal issues may well have contributed to her mild motor issues, but this can also be seen in children who have no such past history.”
Mr Jeremy annexed a later report from Dr Tibballs dated 30 April 2012. Part of that report is in these terms:
“2. On page 6 of your report, under the heading ‘inadequate resuscitation’ you have stated ‘Not all possible current therapy was utilised in the early stages of resuscitation’
What other therapy could have been utilized in the early stages of resuscitation?
The use of intravenous inotropic therapy, such as used by NETS on their arrival, and the earlier use of mechanical ventilation.
When should these therapies have been instituted?
These therapies would probably have been beneficial soon after recognition of severe cardiorespiratory symptoms and signs, that is, as soon as practical after 02:30 hours on 6/5/2008.
Whose responsibility was it to institute these therapies?
These are medical therapies commenced, adjusted and ceased by an attending physician.
What difference would the institution of these therapies have made to the outcome?
These therapies would have been expected to increase cardiac output and oxygenation of blood, which if had been undertaken sooner, would probably have prevented or limited the duration and degree of brain ischaemia.
3. Once NETS arrived, was Portia Gatti appropriately treated?
Yes.”
The application to discontinue the proceedings is made by the plaintiff and is supported by the first defendant. It is not supported by the second defendant to the extent that whereas the first defendant does not require payment of its costs, the second defendant does. In that last respect the second defendant has proffered the following offer as a basis upon which it will agree to what the plaintiff desires:
“1. An order pursuant to UCPR 12.1 granting leave to the plaintiff to discontinue the proceedings as to all claims for relief against the first and second defendants.
2. An order pursuant to UCPR 42.19 that the plaintiff pay the second defendant’s costs of the proceedings in respect [sic].
3. An order that the costs the subject of order 2 do not become payable until the first occurring of the following events:
(a) the conclusion of Rebecca Gatti’s proceedings 2011/119152, or
(b) the commencement of further proceedings by the plaintiff.”
Rebecca Gatti is the plaintiff’s mother and has commenced proceedings against the same defendants claiming damages for nervous shock arising out of the circumstances of Portia’s birth.
UCPR 12.1 and UCPR 42.19 are in these terms:
“12.1 Discontinuance of proceedings
(1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant:
(a) with the consent of each other active party in the proceedings, or
(b) with the leave of the court.
42.19 Proceedings discontinued
(1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1.
(2) Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant’s costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued.
(3)…”
It will be apparent that the application for leave to discontinue is based upon the propositions that the plaintiff’s injuries and disabilities are effectively insignificant, as plainly revealed in the medical opinion supporting the application, and that there may in addition be associated difficulties in establishing at least a causal connection between those injuries and disabilities on the one hand and the breaches of duty alleged against each of the defendants on the other hand. The plaintiff neither wants to pay the second defendant’s costs if she discontinues against that defendant nor to be subject to the alternative costs conditions that the second defendant has proposed. The second defendant does not consent to the proceedings being discontinued only against the first defendant.
The discontinuance of the plaintiff’s proceedings against the first defendant does not preclude her commencing fresh proceedings at a later time should it be thought appropriate to do so. The evidence does not indicate that the plaintiff’s medical condition is significant or stabilised and the liability issue is by no means clear. A grant of leave to the plaintiff as sought would preserve her entitlements as they currently exist without her having to endure the fact or the anticipation of constant medical examinations or the ever present concern to attend to litigation that might ultimately come to nothing. I accept that the administration and conduct of an infant’s proceedings are the responsibility of her tutor, and that the personal concerns of the tutor, whether as to a liability for costs or otherwise, are not relevant. It is relevant, however, that the plaintiff herself not be exposed potentially to years of litigious uncertainty and disruption when it may all prove to be unwarranted or unnecessary.
In my opinion it is in the best interests of the plaintiff to grant her leave to discontinue the proceedings against the first defendant. It is not desirable that the plaintiff should be compelled to litigate against her will. I am prepared to grant that leave notwithstanding that the second defendant is an active party who does not consent to the discontinuance without a corresponding discontinuance against her or some form of costs order in her favour. It does not appear to me that there will be any injustice caused to the second defendant in the circumstances. It remains to be seen whether or not the orders that I propose influence or affect the progress or the outcome of what remains of the proceedings.
Orders
I make the following orders:
(1)Grant leave to the plaintiff to discontinue the proceedings against the first defendant.
(2)Make no order as to the costs of the proceedings as between the plaintiff and the first defendant to the intent that each of them will pay or bear her or its own costs.
(3)Direct that the balance of the proceedings be listed before me for directions on 6 March 2015.
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