St Vincent's Hospital v Freidin
[2023] VSC 602
•5 October 2023; written reasons provided 11 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 04020
| ST VINCENT’S HOSPITAL | First plaintiff |
| -and- | |
| BARWON HEALTH | Second plaintiff |
| -and- | |
| DR JULIAN FREIDIN and A/PROFESSOR ALEXANDER HOLMES constituting the Medical Panel pursuant to the Wrongs Act 1958 (Vic) | First defendant |
| -and- | |
| KRISTY BARTOLO | Second defendant |
---
JUDGE: | Gray J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 October 2023 |
DATE OF JUDGMENT: | 5 October 2023; written reasons provided 11 October 2023 |
CASE MAY BE CITED AS: | St Vincent’s Hospital v Freidin |
MEDIUM NEUTRAL CITATION: | [2023] VSC 602 |
---
JUDICIAL REVIEW — Medical panel — Psychiatric impairment — Whether medical panel failed to consider possibility that psychiatric impairment arose as consequence of or secondary to a physical injury — Whether therapeutic device in situ was physical injury — Approach to reasons — Wrongs Act 1958 (Vic) Pt VBA ss 28LF and 28LJ.
---
APPEARANCES: | Counsel | Solicitors |
| For the plaintiffs | Mr R Harper | MinterEllison |
| The first defendant did not appear | ||
| For the second defendant | Ms F Spencer with Ms A de Souza | Slater & Gordon |
HIS HONOUR:
This is an Order 56 judicial review application by a hospital and a health service (hospitals) for an order quashing a determination made on 11 August 2022 by the defendant Medical Panel, constituted by Dr Freidin and Associate Professor Holmes (Panel), and for a remitter order. The Panel informed the Court that it would not actively participate in the proceeding. The other defendant is Ms Kristy Bartolo.
In a separate proceeding in this Court, by a statement of claim filed in May 2021, Ms Bartolo is claiming that the hospitals are liable for negligence in the care, treatment and management of a condition affecting the brain and spinal areas of her body, including a Chiari 1 malformation (personal injury proceeding).
In the personal injury proceeding, Ms Bartolo alleges that, in November 2012, a medical practitioner recommended a particular surgical procedure involving a craniectomy, and she consented. She claims that she was not warned of the risks, that the surgery was unnecessary and not performed with reasonable care, and that seven subsequent surgeries followed between April 2013 and August 2016 as a result of successive complications and negligent management and treatment.
One of these operations, in January 2014, involved insertion of a therapeutic device known as a ‘shunt’ to facilitate drainage of fluid through a tube leading to Ms Bartolo’s abdomen. A shunt was inserted, but it is alleged that it was not inserted properly, the tubing being coiled in the anterior epigastric region. After complications over an extended period, a second shunt was inserted in August 2016. I was informed by the parties that, at this time, the first one was removed.
There are two medical panel determinations in evidence: one relating to physical impairment dated 9 December 2021 (previous Medical Panel determination); and the current Panel’s determination relating to psychiatric impairment dated 11 August 2022. Only the current Panel’s determination is challenged in this judicial review proceeding. The previous Medical Panel determination was referred to in the Panel’s determination, so it was clearly before the Panel.
From an affidavit filed by the hospitals in this proceeding, it appears that a neurologist, Dr Freilich, provided a certificate of assessment dated 12 October 2020 and report dated 15 October 2020 (Freilich report) that Ms Bartolo had impairment from a physical injury that met the impairment threshold level for significant injury under pt VBA of the Wrongs Act 1958 (Vic) (Act). It appears that, following the Freilich report, pursuant to s 28LWE of the Act, the hospitals referred a medical question to the previous Medical Panel, as to whether Ms Bartolo’s physical injury alleged in her claim met the impairment threshold level for significant injury under pt VBA of the Act. The affidavit stated that the previous Medical Panel was provided with a copy of the Freilich report.
Section 28LF(1) of the Act provides that the purposes of pt VBA injury to a person (other than psychiatric injury) is significant injury if:
(a) the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level.
Section 28LB of the Act defines ‘threshold level’ as:
(a) in the case of injury (other than psychiatric injury or spinal injury), impairment of more than 5 per cent;
(b) in the case of psychiatric injury, impairment of 10 per cent or more;
(c) in the case of spinal injury, impairment of 5 per cent or more.
The previous Medical Panel stated in its reasons for determination that it diagnosed Ms Bartolo as suffering from ‘mild persisting cervical spine pain and post-surgical scarring’. It determined that the impairment resulting from the injury did not satisfy the threshold level.
Subsequently, a psychiatrist, Dr Epstein, provided a report dated 10 March 2022 that included the following opinion about Ms Bartolo’s psychiatric or psychological condition:
From a diagnostic point of view she has symptoms of a Post Traumatic Stress Disorder with recurrent intrusive thoughts about what occurred, distress with reminders of the various procedures, increased concerns about her safety, hypervigilance, emotional withdrawal and a sense of bleakness.
This has exacerbated her pre-existing generalised Anxiety Disorder. She has also developed a Major Depressive Disorder.
It appears that Dr Epstein provided a certificate of assessment of impairment on the same day.
Section 28LF(2) of the Act provides that for the purposes of pt VBA psychiatric injury to a person is significant injury if:
(a) the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(b) a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level.
On 11 April 2022, in relation to Dr Epstein’s certificate of assessment, the hospitals referred a further medical question to the current Panel, ‘does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level?’. The Panel answered that question in the affirmative and provided reasons for determination.
In this proceeding, the hospitals seek judicial review of the determination of the Panel that Ms Bartolo’s psychiatric impairment, resulting from the injury to Ms Bartolo alleged in the claim, satisfies the impairment threshold for significant injury under pt VBA.
The Panel was constituted by two expert psychiatrists, who concluded that Ms Bartolo had developed ‘persistent and severe anxiety which she experiences every day, associated with chronic intrusive thoughts about death’, and that:
Ms Bartolo has an exacerbation of a chronic generalised anxiety disorder, and the exacerbation has not resolved. She also has a chronic major depressive disorder which is in partial remission with treatment … her current psychiatric condition has stabilised.
The Panel was required to consider s 28LJ of the Act, which relevantly provides that when assessing a degree of impairment under pt VBA, ‘regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury’. The Panel was also required to consider s 28LL(3), which requires impairments from unrelated injuries or causes to be disregarded. The hospitals’ amended originating motion took no issue with the Panel’s approach to s 28LL(3).
There is a single ground of review in the amended originating motion, claiming that the Panel committed jurisdictional error by failing to assess impairment in accordance with s 28LJ of the Act.
During oral submissions in reply, the hospitals abandoned a further or alternative argument previously advanced in support of that ground, leaving a single argument in support of the ground. That argument is pleaded as follows:
9. The insertion of the shunt into the brain constitutes a physical injury to the Claimant.
10. The Panel had evidence that the Claimant is fearful and anxious that the shunt will block and she will die.
11. The Panel identified an exacerbation of a chronic generalised anxiety disorder as a potentially compensable psychiatric injury.
12. In discharging its statutory function under s28LJ of the Act, the Panel was required to disregard any psychiatric injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
13. Accordingly, the Panel was required to evaluate/ask itself whether the Claimant’s fear and anxiety that the shunt will block and she will die constituted a psychiatric injury, impairment or symptoms arising as a consequence of, or secondary to, the Claimant having the shunt in situ in her brain.
14. The Panel’s reasons show it did not ask itself that question.
Regarding paragraph 9 of the amended originating motion, as I understood the hospitals’ submissions, they invited me to make a finding that ‘the shunt in situ’ is a physical injury. The hospitals referred me to the test for injury, and the meaning of injury, expounded in Military Rehabilitation and Compensation Commission v May (May).[1] In May, the High Court plurality explained that the central feature of an injury is a physiological change. An injury can arise and be described in a variety of ways, including where the physiological change is ‘sudden and ascertainable’, or ‘dramatic’. However, it may not be necessary for the change to be sudden or dramatic.[2]
[1](2016) 257 CLR 448, [45]–[48].
[2]Ibid, citing passages from Kennedy Cleaning Services Pty Ltd v Petkoskado (2000) 200 CLR 286, 298–300 [34]–[35], [39]–[40]; Hume Steel Ltd v Peart (1947) 75 CLR 242, 252–253; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, 332.
The hospitals contended that this test was abundantly met here, because there was physiological disturbance caused by the shunt being in situ. As I understood their argument, the hospitals did not rely on the physiological disturbance that would have occurred at the time of insertion of the shunt, but rather on the ongoing physiological disturbance arising from or constituted by the shunt being in situ. On that point, the hospitals called on Ms Bartolo to make a concession that the shunt in situ is a physical injury for which she seeks compensation in the personal injury proceeding, and that having the shunt in situ constitutes a physical injury. There was, however, no onus or other form of compulsion on Ms Bartolo to do so, and she did not do so.
The hospitals next argued that, in the personal injury proceeding, and in the context of the previous Medical Panel process, Ms Bartolo is contending or has contended that having the shunt in situ is a physical injury. The hospitals referred me to the statement of claim in the personal injury proceeding, which relevantly refers to the various surgical procedures, and which claims injury in the form of ‘undergoing unnecessary procedures including the craniectomy procedure and all subsequent procedures on the Plaintiff’s brain’.
In the event those submissions do not persuade me to make a finding or reach a conclusion that the shunt in situ is a physical injury, the hospitals alternatively submitted that confirmation of this could and should be obtained from extrinsic evidence in the form of the Freilich report.
The Freilich report was not before the Panel. The hospitals did not contend that the Freilich report fell within any of the recognised exceptions to the general rule that extrinsic evidence is not admissible in judicial review proceedings, as identified in McKenzie v Head, Transport for Victoria.[3]
[3][2020] VSC 328, [153].
I sought submissions from the hospitals on the principles that I should apply in adjudicating the dispute about the admissibility of the Freilich report. The hospitals submitted that I should admit it, because Ms Bartolo should be held to a contention they asserted to be evident from the Freilich report and to have been made previously by her, that the shunt in situ is a physical injury. The hospitals submitted that Ms Bartolo should not be permitted to make an inconsistent submission in this proceeding.
This resembled an estoppel argument, but the hospitals did not refer to estoppel or take me to any applicable authorities, such as Commonwealth v Verwayen.[4] It was not explained precisely how any content of the Freilich report could be said to establish an estoppel on the part of Ms Bartolo.
[4](1990) 170 CLR 394.
In response, Ms Bartolo submitted that there is no inconsistency between her submissions in this proceeding, and any contention she makes or may make in any other context. This is because her submissions in this proceeding are relevantly limited to the proposition that there are a number of different views that a medical panel could form, or might form, on the issue of whether the shunt in situ is, or is not, a physical injury.
Ms Bartolo also made the submission that, insofar as the hospitals’ argument in this proceeding consists of an argument that the Panel failed to ask itself a question that the law required on the material before it, then the Freilich report is irrelevant to that exercise.
For reasons I explain in what follows, I do not consider that making the finding urged by the hospitals — that the shunt in situ is an injury meeting the May test — is open to me in this judicial review proceeding. There might be different views taken on that question, on which medical expertise might be brought to bear. It is a question for a medical panel and not me.
I accept Ms Bartolo’s submissions on the inadmissibility of the Freilich report. None of the recognised exceptions apply, and the general rule is that, on judicial review, the Court will not rely on material that was not before the decision-maker, outside those exceptions. Such material is irrelevant.
There is no need to consider whether a further exception might be warranted in cases where there is a material inconsistency with a position previously adopted by a litigant. That is because, for the reasons given by Ms Bartolo, there is no such inconsistency here. Ms Bartolo is arguing that there are a number of views that might be taken by a medical expert on the question of whether the shunt in situ is a physical injury. She is not estopped from making that argument even if she were to have previously contended that particular evidence supported a conclusion that one or other of those views was the preferable one. In any event, the hospitals did not adequately explain how an estoppel could arise.
I turn now to the substance of the argument in support of the sole ground of review. The gist of the ground is that the Panel failed to consider a matter that s 28LJ of the Act required it to consider. As put in paragraphs 9, 13 and 14 of the amended originating motion, it is claimed that the Panel failed to ask itself the question whether Ms Bartolo’s fear and anxiety that the shunt will block and she will die constitute psychiatric impairment or symptoms arising as a consequence of, or secondary to, Ms Bartolo having the shunt in situ in her brain, that being a physical injury.
In their submissions, the hospitals relied on references in the material, including some outside the Freilich report, that there was some pain and disfigurement associated with the current shunt being in situ. The hospitals also referred extensively to material indicating that there had, in the past, been complications and very adverse effects associated with the previous shunt, inserted in January 2014 and removed in August 2016. When asked how any such effects relating to the previous shunt could be relevant, the hospitals appeared to retract their reliance on those matters.
Ms Bartolo objected to the hospitals relying on the pain and disfigurement associated with either shunt, noting that these matters were not pleaded. Ms Bartolo submitted, correctly, that the pleaded source of fear and anxiety related to apprehension of the current shunt blocking, leading to death. When I asked whether their references to pain and disfigurement were encompassed by the hospitals’ amended originating motion, the hospitals said that they referred to this material in support of the contention that the shunt in situ is a physical injury. I did not take the hospitals to rely on those adverse effects directly as physical injuries, or as the alleged source of any psychiatric impairment, and it would have been inconsistent with the hospitals’ pleading and unfair to Ms Bartolo if they had been permitted to do so.
The pleaded source of fear and anxiety is Ms Bartolo’s apprehension that the shunt will block and she will die. The hospitals submitted that it was clear, from the Panel’s determination, that no consideration had been given to the question of whether that source of fear and anxiety constitutes a psychiatric impairment or symptoms arising as a consequence of, or secondary to, Ms Bartolo having the shunt in situ in her brain.
The hospitals submitted that this was a breach of s 28LJ, giving rise to the claimed jurisdictional error. They relied, in particular, on the following passage in the Panel’s determination:
As the previous Panel had concluded that Ms Bartolo is suffering from mild persisting cervical spine [scil. pain] and post-surgical scarring relevant to the alleged injury, the Panel considered that part of Ms Bartolo’s psychiatric impairment has arisen secondary to a physical injury and should be disregarded in accordance with Section 28LJ of the Act.
The hospitals relied on the express reference to the finding of physical injury made by the previous Medical Panel in the above passage, and on the fact that the matters expressly considered in that passage under s 28LJ were limited to that physical injury. The hospitals submitted that this made it clear that the Panel had not turned their minds to the physical injury constituted by the shunt in situ in applying s 28LJ.[5]
[5]The hospitals relied on Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59.
Ms Bartolo submitted that this inference should not be drawn.
Ms Bartolo relied on the explanation given by the Court of Appeal of the function of medical panels and the limits of the grounds of judicial review relating to matters on which medical panels have opined in Sidiqi v Kotsios (Sidiqi).[6] As the Court of Appeal noted, the expert nature of the medical panel’s functions means that the Court cannot approach a judicial review in the same way as it would with respect to a body exercising an adjudicative function, and it would be difficult to conclude that an opinion materially informed by the expertise of the panel was not open to it.
[6][2021] VSCA 187, [29]–[64].
Earlier in these reasons, I expressed my view that the question of whether the shunt being in situ is an injury is a medical question to which it is the role of a medical panel to apply its expertise. The passages in Sidiqi, mentioned above, support this conclusion.
In response to the hospitals’ invitation to the Court to infer that the Panel had failed to take into account a mandatory consideration, Ms Bartolo submitted that this inference should not be drawn, particularly in circumstances where the decision-maker was under no obligation to have provided a statement of reasons. In Plaintiff M64/2015 v Minister for Immigration and Border Protection (M64),[7] the High Court plurality said that it must be borne in mind that where a decision-maker was not duty-bound to give reasons, it would be difficult to draw an inference that the decision has been attended by an error of law from what has not been said, and that a plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned.[8] Under s 28LZG(2) of the Act, there is no requirement for a medical panel to provide a statement of its reasons for determination of a medical question referred to it under pt VBA of the Act.
[7](2015) 258 CLR 173.
[8]Ibid [25].
I have considered whether the approach to interpretation of a medical panel’s statement of reasons expounded in Wingfoot Australia Partners Pty Ltd v Kocak (Wingfoot)[9] should be applied here. In Wingfoot, on a referral under the Accident Compensation Act 1985 (Vic), a medical panel had expressed a finding that the worker had suffered a soft tissue injury. The High Court held that, in the context of that case, it was to be implied that the panel found that all that had been suffered was a soft tissue injury, and it could not be inferred that another claimed injury had been ignored.[10] Wingfoot was a case where the medical panel was required to provide reasons, whereas the current Panel was not required to provide reasons. The Court should be all the more hesitant to draw an inference that the Panel has disregarded a matter in the present circumstances. Read in a manner consistent with M64, and even with Wingfoot, it would not readily be inferred that the Panel failed to turn its mind to the question in this case. I do not draw that inference.
[9](2013) 252 CLR 480; [2013] HCA 43.
[10]Ibid [59]–[63].
Ms Bartolo pointed out that the impugned passage of the Panel’s decision was under the heading ‘Conclusions’, and that there might have been various strands of reasoning on many issues not deemed to be conclusions and not, therefore, set out. Ms Bartolo submitted that there were various views open to the Panel in the exercise of its evaluative function, applying its medical expertise, that would have been consistent with the Panel not finding that Ms Bartolo’s psychiatric impairment arose as a consequence of, or secondary to, Ms Bartolo having the shunt in situ in her brain, or that the shunt in situ in Ms Bartolo’s brain was a physical injury.
The shunt itself might be regarded as a therapeutic item, and there was no evidence before the Panel that it was malfunctioning. On that basis, it would have been open to the Panel to form a view that having the shunt in situ was not a physical injury. It would then follow that any anxiety about the shunt being in situ could not be consequential upon or secondary to a physical injury. In this regard, I note that the aspects of Ms Bartolo’s anxiety condition relied upon by the hospitals in this proceeding related to her fear that the current shunt would block in the future. This could reasonably be characterised as a fear about the future potential malfunctioning of a therapeutic device causing a future physiological change in her body, rather than a fear resulting from an existing physical injury.
There was at least one other way in which it was open for the Panel to conclude that the shunt in situ was not a physical injury giving rise to consequential or secondary psychiatric impairment. The Panel had undoubted psychiatric expertise and could form a view whether Ms Bartolo’s psychiatric injury and impairment was a ‘primary’ consequence of the entirety of the treatments she had received, as opposed to some part of it being secondary or consequential impairment from the shunt being in situ. Ms Bartolo relied on Dixon v Hacker[11] in this regard. There were similarities between Dixon v Hacker and the present case. In Dixon v Hacker, it was contended that an omission in a medical panel’s statement of reasons meant that the panel had ignored the issue of secondary psychiatric impairment, contrary to s 28LJ of the Act. J Forrest J declined to draw that inference. In doing so, his Honour accepted a number of propositions, including that the panel was aware of the content of s 28LJ and that the distinction between ‘primary’ and secondary impairment is well known to practising psychiatrists. His Honour concluded that it would, therefore, be odd if the highly experienced psychiatrists on the medical panel did not apply that distinction in accordance with law and, in particular, with s 28LJ of the Act.[12]
[11]Peter Dixon v Sandra Hacker & Ors (‘Dixon v Hacker’) [2007] VSC 342.
[12]Dixon v Hacker [2007] VSC 342 [48], [50] citing TAC v Lincoln (2003) 6 VR 199, [16], [18].
I accept Ms Bartolo’s submissions. Even on a Wingfoot reading of the reasons, it cannot be inferred that the Panel ignored the question of whether the shunt being in situ is a physical injury and, if it was, whether any aspect of Ms Bartolo’s psychiatric impairment was a consequence of, or secondary to, that matter. This could not be inferred merely from the fact that the shunt is not mentioned in connection with s 28LJ, and another physical injury is.
That paragraph might simply mean that the Panel reasoned that there was no other physical injury, including after giving consideration to the shunt being in situ. This would have led to the stated conclusion that the physical injury was confined to the spinal pain and surgical scarring.
Further or alternatively, the Panel might simply have reasoned (even if it considered that the shunt in situ was or might be a physical injury), that neither the shunt in situ nor any other physical injury was giving rise to consequential or secondary psychiatric impairment, on a proper view of Ms Bartolo’s psychiatric conditions. As Ms Bartolo put it in her submissions:
Even assuming that the shunt was a ‘physical injury’ within the meaning of that phrase in s 28LJ, [it was open to the Panel to] make an evaluative judgment that Ms Bartolo’s fear of dying from the shunt blocking was a manifestation of her chronic anxiety about herself and her family dying from various causes which had arisen as a direct consequence of the alleged surgical mismanagement, as opposed to a reaction to the insertion of the shunt itself.
On any view, the Panel was not required to explain all its paths of reasoning, and all potential findings it rejected. It was only setting out its conclusions.
For these reasons, the sole ground of judicial review is not made out and the proceeding is dismissed, with costs.
2
13
4