Turner v Eastern Sydney Area Health Service & Ors No. Scgrg-94-1382 Judgment No. S6815

TURNER V EASTERN SYDNEY AREA HEALTH SERVICE AND ORS

ACTION NO 1382 OF 1994

[1998] SASC S6815

Judge Burley

The first defendant, on an ex parte application, has sought an order that it not be required to deliver a medical report to the other parties as required by SCR 38.01(1). The application is made pursuant to SCR 38.01(4) which is as follows:-
“(4).. Where a party contends that the party’s case would be unfairly prejudiced by the disclosure of a particular expert report the party may, before or within seven days after the party is required to deliver that report, file a copy of that report in a sealed envelope which is not to be opened except by the authority of the Court and apply ex parte to the Court for an order that the party be not required to deliver that report pursuant to Rule 38.01.”
Since I have come to the conclusion that the application should be refused, I am able to set out the facts material to the application without having to guard against an inadvertent disclosure of the content of the relevant medical report to the other parties. However, in case there is an appeal from my decision, I propose to direct that the application, affidavit in support, Minutes of Order and my reasons be retained in a sealed envelope until the expiration of the relevant appeal period.
The plaintiff alleges in the statement of claim that at all material times she suffered psychiatric symptoms which included obsessive compulsive rituals, panic attacks and generalised anxiety. She received advice that she would be a good candidate for a particular type of surgery. She underwent that surgery, but it was not successful and, it is pleaded, her situation deteriorated as a result. The plaintiff contends that she was given negligent advice in relation to her suitability for the surgery and she alleges that the surgery and post-operative care was carried out negligently.
The application was supported by the affidavit of Ms Burford, one of the solicitors for the plaintiff. In her affidavit she said:-
“3..... The plaintiff alleges in paragraph 7(c) of her Statement of Claim that:
‘Post operatively observation of the Plaintiff was inadequate and so failed to alert staff to the ill consequence of the operation and the plaintiff was discharged prematurely. The plaintiff had large subhyaloid haemorrhages which indicated that she was likely to have been suffering from cerebral oedema and a degree of raised intra cranial pressure in the post operative period and should not have been discharged until this diagnosis had been excluded’ (‘the issue of alleged inadequate post-operative care’). This allegation is of particular consequence to the first defendant as it appears to [sic] directed to or to include the first defendant (as opposed to the second and third defendants) in the post operative period. The plaintiff has not provided any expert opinion suggesting negligence in the post operative care or damage attributable to that.
4...... By its defence the first defendant denied the allegations contained in paragraph 7 of the plaintiff’s Statement of Claim.
5...... None of the reports of Dr Rawson dated 17 September 1992 and 6 June 1992, Professor Henderson dated 27 May 1993, Dr M Wood dated 31 January 1996, William E Lucas dated 27 November 1996 and Dr David S Bell of 19 August 1997 obtained by the plaintiff suggest that the plaintiff was given inadequate or inappropriate post-operative care.
6...... The reports of Professor R D Goldney dated 4 January 1996 and 24 September 1997, Raymond L G Newcombe dated 15 April and 19 September 1997 obtained by the second and third defendants do not address the issue of the alleged inadequate post-operative care.
7...... Mr Harold Schaeffer in his report of 13 August 1993 obtained by the plaintiff makes comments on the plaintiff’s post operative presentation as follows:
‘Mrs Turner suffered some post-operative complications. It will be observed that she had large subhyaloid haemorrhages which indicate that she is likely to have been suffering from cerebral oedema and a degree of raised intracranial pressure in the post-operative period.’
However, he does not conclude that this is the result of the alleged inadequate post operative care but states:
‘It is apparent that the poor result is based upon errors of case selection and possible technical errors and/or both.’
8...... Dr David Bell in his report of 12 August 1997 obtained by the plaintiff addresses the issue of alleged inadequate post-operative care as follows:
‘As for the post-operative care, I doubt that this is an issue. .... So far as the post-operative care is concerned, it seems to me from the notes that the observation may have been inadequate and so failed to alert the staff to the ill consequence of the operation. That may not have made any practical difference to the outcome. Once they had produced the excessive lesion, nothing further could be done to ameliorate the effects.’
Exhibited to this Affidavit and marked with the letters ‘EAB1’ is a true copy of the report of Dr Bell dated 12 August 1997.
9...... To date there are no reports disclosed by the parties to the action which criticize the first defendant’s case on the issue of alleged inadequate post-operative care.
Retainer of Dr Lloyd
10.... In October 1997 I was instructed to seek an expert opinion from Mr D Jensen, a Neurosurgeon practising in Melbourne (‘Mr Jensen’) regarding the plaintiff’s allegations. On 15 October 1997 I caused a letter (‘the Covering Letter’) along with a number of documents, to be forwarded to Mr Jensen. That letter requested as follows:
‘Once you have had the opportunity to consider the various documents and the issues raised by the Statement of Claim, we would appreciate it if you would contact us to discuss the matters informally before you proceed to prepare a report. We would be grateful if any report could be prepared within 4 to 6 weeks.’
Exhibited to this Affidavit and marked with the letters ‘EA2’ is a true copy of the Covering Letter.
11.... On 17 October 1997 Mr Jensen telephoned me and recommended that I refer the matter to Dr John Lloyd, a Neuropsychiatrist practising in Melbourne (‘Dr Lloyd’).
12.... On 21 October 1997 I had a telephone conversation with Dr Lloyd. I cannot now recall the precise words used by each of Dr Lloyd and myself in the conversation but can and do say that the effect of what was said is set out in paragraphs 12.1 to 12.6 hereof. The substance of the conversation was as follows (after introductory remarks):
12.1.......... I requested that Dr Lloyd consider a number of documents in relation to the plaintiff’s claims, including the pleadings and reports from other practitioners (‘the Documents’);
12.2.......... Dr Lloyd advised that he was prepared to start looking at the documents and that he was able to prepare a report and give evidence at trial if necessary;
12.3.......... I indicated that I would request Mr Jensen’s offices to forward the Documents and the Covering Letter sent to him to Doctor Lloyd. I told Dr Lloyd that the Covering Letter identified the issues that I wished Dr Lloyd to consider particularly;
12.4.......... I requested that Dr Lloyd telephone me once he had considered the Documents so that we could discuss informally his opinion in relation to the issues identified in the Covering Letter before he prepared any report (‘informal discussion’). Dr Lloyd advised me that he would not be in a position to contact me for at least two to three weeks given the volume of material to be read;
12.5.......... I requested that Dr Lloyd not proceed to prepare any report until the informal discussion had taken place. Dr Lloyd said words to the effect that this was acceptable.
12.6.......... I also discussed with Dr Lloyd:
12.6.1....... his experience in the relevant field of practice;
12.6.2....... the issues on which his experience would enable him to comment;
12.6.3....... the possibility of obtaining a report from a neurosurgeon; and
12.6.4....... costs.
13.... I am informed by my secretary, Carolina de Leonardis and verily believe to be true that on 22 October 1997 she:
13.1.......... telephoned Dr Lloyd’s rooms and advised that Marie from Mr Jensen’s rooms would forward the Covering Letter and the Documents to Dr Lloyd;
13.2.......... telephoned Marie from Mr Jensen’s rooms and confirmed the address to which the Covering Letter and Documents should be forwarded.
14.... I took the course of action outlined in paragraphs 12.4 and 12.5 in order to ensure the first defendant was not obliged to discover a report which contained opinions which were adverse to the case of the first defendant or dealt with issues adverse to the first defendant in circumstances in which no report adverse to the first defendant on, in particular, the issue of alleged inadequate post-operative care had been put forward by any other party.
15.... It was my intention, after the informal discussion, to then obtain my clients instructions as to whether to request Dr Lloyd to proceed to prepare a written report.
16.... If Dr Lloyd indicated to me during the course of the informal discussion that his opinion on the alleged inadequate post-operative care issue was adverse to the first defendant it was my intention to recommend to the first defendant that no report be provided by Dr Lloyd.
17.... If Dr Lloyd had told me that he was not prepared to comply with my request in 12.4 and 12.5 I would not have asked him to consider the Documents.
18.... I have not had any further discussions with Dr Lloyd since 21 October 1997 and in particular have not had an informal discussion regarding his opinion as requested in paragraph 12.4.
19.... On 10 December 1997 I received the Report.
20.... Dr Lloyd’s Report makes comments adverse to the first defendant in relation to the issue of alleged inadequate post-operative care. Exhibited hereto in a sealed envelope and marked with the letters ‘EAB3’ is a true copy of the Report. I refer in particular to pages 8 to 12 of the Report.
21.... In addition I refer to the sentence commencing:
‘I would oppose the view that “the outcome was sealed and irreversible” ...’ at page 8 of the Report and to the sentence commencing:
‘With the impression one gains of the post-operative course is that observations were made ...’ at page 9 of the Report.
Unfairness
22.... The first defendant does not intend to rely on the Report nor does it intend to call Dr Lloyd to give evidence.
23.... If Dr Lloyd had informed me during any informal discussion of the proposed content of his report prior to provision of the Report I would have recommended to my client that no report be obtained from Dr Lloyd. In those circumstances Dr Lloyd’s retainer would then have been terminated.
24.... In the circumstances the first defendant says it would be unfairly prejudicial to oblige the first defendant to discover or disclose the Report.”
The first defendant is concerned that, to date, the plaintiff has not disclosed expert evidence suggesting negligence in the post-operative care as outlined by Dr Lloyd in his report of 1 December 1997. Indeed, reference has been made to the affidavit of Dr Bell, who has prepared a report for the plaintiff, in which, it was argued, he expressed the view that he doubted that post-operative care was an issue.
It is clear from Ms Burford’s affidavit that she took all necessary steps to obtain Dr Lloyd’s oral advice prior to him giving advice in writing. It is equally clear from paragraph 14 of her affidavit that she adopted this course in order to avoid a situation where the plaintiff was obliged to discover a report which contained opinions which were adverse to the case of the first defendant.
I accept that Dr Lloyd forwarded his report contrary to the request from Ms Burford to discuss his opinions with her by telephone prior to committing them to writing.
A perusal of Dr Lloyd’s report reveals that he is of the view that post-operative care on the part of the first defendant, had it been performed adequately, may have reduced the injurious effect of the operation upon the plaintiff. The first defendant says that it would be unfair to require it to disclose the report because, had the first defendant realised that Dr Lloyd would provide the report without discussing his opinions by telephone first, a report would not have been sought from him.
SCR 38.01(4) was considered by Mullighan J in Piber Pty Ltd v AW Baulderstone Pty Ltd (1992) 163 LSJS 380. His Honour said, at 382:-
“... The obligation to disclose, and supply copies of, expert reports before the pre-trial stage of the proceedings is designed to ensure that the issues which arise in respect of expert evidence are clarified, and often narrowed, at an early stage so that the parties and their experts may adequately prepare for trial and at the trial the focus will be upon only those matters which are in issue....
The new rule provides for a significant change in policy. No longer may a party withhold from the other party or parties a report of an expert even though he does not intend to call that expert or to rely on the report in some other way. The policy of the rule is for full disclosure so that all matters relating to expert evidence are known to all parties and their experts well before the trial so as to permit the narrowing of the issues and the acceptance by the parties of expert evidence which is not in dispute. A consequence of the present procedure is that disclosure of an expert’s report which in some respect is unfavourable to a party, may advance the case of the other party. Tactical withholding of reports is no longer permissible. Such a policy may be clearly discerned from the rule and is consistent with the purpose of expert evidence, namely to assist the court with respect to matters which are not within the knowledge or experience of ordinary people....
It is not easy to imagine a situation where the disclosure of a report of an expert which is relevant to a matter in issue in an action would unfairly prejudice the case of the party who had obtained the report. It is not difficult to see how such a report might prejudice the case of such a party by providing some evidence of observations or opinion which is contrary to the case of that party and which has the potential to advance the case of an opposing party, but such prejudice could not be said to be unfair in view of the purpose of Rule 38 and its underlying policy.”
The unfairness said to arise in this case results from the first defendant obtaining a written report (which otherwise has to be disclosed) which it did not seek. The first defendant specifically attempted to avoid a situation of obtaining a written report but was unsuccessful in that attempt because the medical practitioner involved sent the written report without discussing with the first defendant’s solicitor his opinions by telephone.
On the question of unfairness, I think it is necessary to take into account not only that the first defendant received a written report that it did not request; it is also necessary to take into account that the Court is being asked to exclude from discovery evidence which is material to one of the issues in question in the action. I do not accept the first defendant’s argument that the question of post-operative treatment was not significantly material by reason of the opinions expressed by Dr Bell’s report as referred to in paragraph 8 of the affidavit of Ms Burford. Dr Bell was talking about probabilities not certainties and his opinion could not be said to be an absolute statement that post-operative treatment could not be material.
Secondly, I think it is necessary to take into account that the procedure adopted by the first defendant’s solicitor smacks of shopping around for a favourable expert witness. In one sense it seeks to subvert the obvious intention of SCR 38.01 that all relevant expert evidence obtained by the parties, favourable or unfavourable, is disclosed to the other parties. The procedure of obtaining an oral report from the expert involved prior to asking the expert to commit himself or herself to writing lends itself to the criticism that the party seeking expert advice on such a basis is attempting to get around the purpose of the Rule. To say that the requirement to disclose the report would be unfair to the first defendant would be to say that the first defendant’s failed attempt to avoid the effect of SCR 38.01 constituted the necessary unfairness required to be established under SCR 38.01(5). I do not think that the Court can condone such a practice and there would be an obvious condonation if the order exempting the first defendant from compliance as sought were granted by the Court.
For the above reasons the application of the first defendant will be refused. I direct that the application, affidavit in support, Minutes of Order and these reasons be retained on the Court file in a sealed envelope for a period of 14 days from the delivery of these reasons or for such greater or lesser period as the Court may order. I also direct that, if the first defendant does not pursue an appeal from my decision, a copy of these reasons be supplied to the other parties.

[1998] SASC 6815

31 August 1998