X v Sydney Children's Hospitals Specialty Network (No 6)

[2011] NSWSC 1353

Supreme Court

New South Wales

Medium Neutral Citation:

X v Sydney Children's Hospitals Specialty Network & Anor (No 6) [2011] NSWSC 1353

Hearing dates:

8 November 2011

Decision date:

10 November 2011

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

Generally allow evidence to be given by experts who participated in the Joint Conference of Experts, notwithstanding specific objections to their expertise.

Reject identified paragraphs of Dr Levy's report dated 2 August 2007 where basis not evident from the report.

Catchwords:

PRACTICE AND PROCEDURE - Expert evidence

Legislation Cited:

Evidence Act 1995 (NSW) - s 79

Cases Cited:

X v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351

Category:

Interlocutory applications

Parties:

- "X" (Plaintiff)
- Sydney Children's Hospitals Specialty Network (Randwick and Westmead) (Incorporating The Royal Alexandra Hospital for Children) (First Defendant)
- Dr Brian Kearney (Second Defendant)

Representation:

Counsel:
- K.M. Connor SC, Ms K. Sant, Ms M. Avenell (Plaintiff)
- M.J. Windsor SC, S.A. Woods (First Defendant)
- J.K. Kirk SC, Ms V.A. Thomas (Second Defendant)
Solicitors:
Paul A. Curtis & Co (Plaintiff)
GILD Insurance Litigation (First Defendant)
Blake Dawson (Second Defendant)

File Number(s):

2002/069388

Publication restriction:

Suppression order in respect of Plaintiff

Judgment

1. In the course of my determination of objections as to expert medical reports in these proceedings, the question arose whether particular experts had purported to give opinions which went beyond their areas of specialised knowledge within the meaning of s 79 of the Evidence Act 1995 (NSW) and, accordingly, whether I should reject certain paragraphs of their reports on that ground. Objections were made by the Plaintiff and by the Second Defendant on this basis, but because common issues arise, I propose to deal with these objections in a single judgment.

1. In an earlier judgment given in these proceedings which concerned whether a joint report prepared by experts retained by the parties in the proceedings ought be admitted into evidence ( X v Sydney Children's Hospitals Specialty Network & Anor (No 5) [2011] NSWSC 1351), I set out, in summary form, the steps that have been taken in these proceedings to obtain agreement between experts on certain questions, and record where there is no such agreement. I do not propose to repeat the narrative given in that judgment.

1. The three groups of expert witnesses as to breach of duty in these proceedings are: paediatricians, paediatric neurologists and paediatric endocrinologists. Obviously there is considerable overlap between these areas of expertise and the boundaries between them are not clearly drawn. Furthermore, paediatricians, in the course of their clinical practice refer and discuss particular patients with other specialists; among them, paediatric neurologists and paediatric endocrinologists. Although care must be taken not to import standards applicable to a paediatric endocrinologist or a paediatric neurologist to a general paediatrician, there is no particular reason why other specialities might not give admissible evidence in the instant case about matters in issue.

1. However, there is, in the instant case, an additional reason why I am loath to reject the evidence of, say, a paediatrician on, for example, the effect of a stress reaction to a seizure in a child with hyperinsulinism to raise the blood glucose level and rectify the hypoglycaemia which caused the seizure, although this may not fall within the paediatrician's core expertise. The reason is that ten experts have conferred in the preparation of two joint reports, the second of which has been admitted into evidence. The questions raised by the joint reports span the three specialities referred to above, and yet, except in instances where an expert may have refused to participate in the discussion on the grounds that it fell outside his or her expertise, all of the experts have participated in the discussion.

1. This process was authorised by this Court. I am informed by Mr Kirk, senior counsel for the Second Defendant, that the Plaintiff, at an earlier stage, sought a direction that particular experts be permitted only to answer particular questions, as opposed to all experts being free to contribute to the discussion relating to every question agreed by the parties to be put to them in a joint conference. The direction was, apparently, refused.

1. Where experts have contributed to a discussion which has produced the Second Joint Report and will be called to give concurrent evidence in this Court, there appears to me to be a deal of artificiality in limiting the expression of opinion in the experts reports to that which falls squarely within the expertise of the expert.

1. I do not propose to set out every objection made by the Plaintiff and the Second Defendant for the purposes of these reasons. Rather, I will set out examples of the material objected to, since my reasons for allowing the evidence, are principally those set out above.

The Plaintiff's objections to evidence on the grounds of expertise

1. The Plaintiff's first objection on this ground is to various paragraphs of the reports of Dr Manson dated 28 June 2004. The Plaintiff makes a similar objection to various paragraphs in the reports of Dr Manson dated 19 November 2004, 14 March 2007, 14 January 2008 (on the basis that he lacks experience in paediatric endocrinology and paediatric accident and emergency practice) as well the reports of Dr Campbell dated 28 April 2003, 6 August 2003 and 20 March 2006 (on the basis that he goes beyond his expertise). Rather than address each passage of each report objected to I propose to set out my reasons in respect of Dr Manson, since they also apply mutatis mutandis to the other reports to which objection is taken on the same basis.

1. Dr Manson is a paediatric neurologist. The Plaintiff objects to Dr Manson expressing certain opinions as to the timing and cause of the seizures and any brain injury suffered by the Plaintiff, including the following:

"I would consider the seizures epileptic in nature, secondary to brain damage from hypoglycaemia, sustained in early infancy."

"The epilepsy was most likely to be secondary to brain injury from long standing hypoglycaemia in early infancy."

[EEG showed epileptic activity] "presumably due to hypoglycaemic brain damage."

"In my opinion, taking all the known facts of the case into account, that Kate suffered brain damage from hypoglycaemia in the early months of life from about 3 months of age to 6 months of age ... "

"The brain damage manifested itself early by the seizures and subsequently by developmental delay."

1. Mr Connor submitted that the cause of seizures and the timing of any brain damage suffered by the Plaintiff was outside the expertise of a paediatric neurologist, and was within the expertise of a paediatric endocrinologist.

1. Even if it be the case that the matters on which Dr Manson opines set out above may fall more within the expertise of a paediatric endocrinologist than a paediatric neurologist, I do not consider that, in the circumstances of the instant case, this should lead to the rejection of evidence such as that set out above. I am told that Dr Manson was one of the experts who attended the Joint Conference on causation. Accordingly, I infer that he participated in the discussion about the cause of the Plaintiff's disabilities and the timing of any damage she suffered as a result of hypoglycaemia, whether accompanied by simultaneous fits, or not. Dr Manson will give concurrent evidence on 10 November 2011, together with other experts who participated in the joint expert conference on causation.

1. In these circumstances, even if it were established that Dr Manson's specialised training and knowledge did not extend as far into these areas as it would if he were a paediatric endocrinologist, I would be prepared to dispense with the requirements of s 79 of the Evidence Act (in so far as they were not met) to permit his opinions expressed in his reports to be admitted into evidence since they presumably provide a basis for his reasoning which contributed to the discussion on causation. Were I to permit only those who are qualified paediatric endocrinologists to opine on causation I would be effectively segmenting excluding the evidence of many of the experts who contributed to the joint report on causation. This would tend to have the effect of undermining the case management undertaken by this Court in interlocutory stages which was designed to reduce the areas of expert opinion which are in dispute and to reduce the time required to be spent by the experts in the Court.

1. Other objections are taken to Dr Manson's reports on similar bases: that he opines about matters germane to accident and emergency practice notwithstanding that it has not been shown that he has such expertise; and that he is not a qualified paediatric endocrinologist and therefore cannot opine that, for example, "the focal (partial) seizures that occurred on 9 and 10 May were epileptic in nature and secondary to focal brain lesions caused by previous attacks of hypoglycaemia".

1. It may be that, had I been inclined to reject these paragraphs, the Second Defendant would have sought leave to adduce further evidence as to Dr Manson's expertise. However, for the reasons given above, I am satisfied that the evidence ought be admitted.

The Second Defendant's objections to Dr Levy's report dated 2 August 2007

1. The Second Defendant objected to the following passages in Dr Levy's report:

[18] "And sometimes it [hyperinsulinism] presents in infancy, particularly when the infant begins to sleep through the night and the period of fasting Is increased."

[35] "In the case of an infant with hyperinsulinism adrenalin is released in an attempt to counter the effect of insulin."

1. Ms Thomas, junior counsel for the Second Defendant, pointed to the following passage in [16] of the report as a reason for rejecting the passage set out above:

"I am not an expert in the condition of hyperinsulinism. However, I have been aware of the condition since my initial training in medicine and have an understanding generally of the condition. In my experience it is one that is known to all general paediatricians and doctors practising in A & E departments where children are seen."

1. The effect of adrenalin (and growth hormone and cortisol) in raising blood sugar level as a result of a seizure is an issue in the case. The Plaintiff contends that because of this effect, the normal blood glucose tests that were processed on 10 May 1996 ought not have assured the Second Defendant that the seizure had not been caused by hypoglycaemia because of the 'adrenalin effect'. The Second Defendant says in response that blood test during or up to five minutes after a seizure, if it shows blood sugar levels within a normal range, is the "gold standard" and no more is required to exclude hypoglycaemia as a cause of the seizure.

1. As in the case of the Plaintiff's objections to Dr Manson referred to above, the question of what inferences can be drawn from blood glucose tests (whether by glucometer or by taking blood and sending it to a laboratory) taken during or after (and how long after) a seizure was necessarily raised by the agreed questions to be answered in the course of the Joint Conferences in which the experts, including Dr Levy, participated. For the same reasons I gave in respect of Dr Manson's evidence, I consider that it is appropriate to allow Dr Levy to give his opinion on the effects of adrenalin on an infant in the Plaintiff's situation.

1. Mr Connor also points to a general paediatric text, referred to as "Nelson's", which contains learning in accordance with that about which Dr Levy has deposed to establish that hyperinsulinism forms part of the basic paediatric training.

1. Furthermore, although Dr Levy says, in the passage set out above, that he is not an expert in hyperinsulinism, this proposition almost follows from his position as a general paediatrician. The occurrence of hyperinsulinism, according to the literature that has been tendered in these proceedings, is of the order of one in 45,000. Nonetheless, he has been trained regarding the condition and I consider that he is entitled to express an opinion, particularly as he has the same specialty as the Second Defendant, the reasonableness of whose conduct is in issue in the proceedings.

1. The Second Defendant objected to the following passages from Dr Levy's report:

[65] "They [Dextrostix] should have been [taken]. It is likely that [X's] glucose level was low or lower than expected, and the Dextrostix would have revealed this. The steps set out in the sheet included in the Hypoglycaemic Kit would then have been implemented."

[75] " The 'no-bloods' direction should not have been given . Dr Kearney should not have given the 'no bloods' direction. Repeat Dextrostix should have been performed. [X] should have had blood tests, including for glucose. Any inappropriately low glucose reading should have been followed up with the investigations set out in the document included in the Hypoglycaemic Kit."

1. Ms Thomas submitted that the basis of the opinion was not expressed and that the paragraphs ought to be rejected on that basis. Mr Connor submitted that the reasons are given elsewhere in the report and that Dr Levy ought not be obliged to repeat those reasons in respect of these two opinions. Mr Connor submitted that Dr Levy's reasons for the opinions expressed are the same as he expressed in relation to Friday 10 May 1996. That may well be the case but I do not consider that I can necessarily infer that from the form in which the opinion is given. Since Dr Levy is to give concurrent evidence in the proceedings, there is no prejudice to the Plaintiff in rejecting these paragraphs in that form, since Mr Connor can ask Dr Levy for his reasons. I consider that, as it is an important issue, it is preferable to adopt this course than for me to speculate as to Dr Levy's reasons, or to accept what Mr Connor says as to those reasons.

1. Accordingly, I reject these paragraphs for the reasons given above.

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Decision last updated: 11 November 2011