Zheng v South Eastern Sydney Local Health District
[2017] NSWSC 1272
•20 July 2017
Supreme Court
New South Wales
Medium Neutral Citation: Zheng v South Eastern Sydney Local Health District [2017] NSWSC 1272 Hearing dates: 20 July 2017 Decision date: 20 July 2017 Jurisdiction: Common Law Before: McCallum J Decision: Pursuant to s 82 of the Civil Procedure Act 2005 (NSW), defendant ordered to make an interim payment to the first plaintiff in the sum of $166,227.50; pursuant to s 76 of the Civil Procedure Act 2005 (NSW), interim payment approved; interim payment to be paid into Court within 21 days and thereafter paid out as the court directs; defendant to have credit for the interim payment on any final settlement or verdict in favour of the first plaintiff; first plaintiff’s entitlement (if any) to interest on damages reduced to take into account receipt of the interim payment; costs to be costs in the proceedings
Catchwords: MEDICAL NEGLIGENCE – application for interim payment – whether if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant – application supported by cogent expert opinion evidence Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 82 Category: Procedural and other rulings Parties: Pei Ling Zheng (first plaintiff)
Hou Wen Ni (second plaintiff)
Shelly Ni (third plaintiff)
Leon Ni (fourth plaintiff
South Eastern Sydney Local Health District (defendant)Representation: Counsel:
Solicitors:
W Allan (plaintiff) (ex parte)
Reid Lawyers (plaintiff)
File Number(s): 2017/18148 Publication restriction: None
Judgment
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HER HONOUR: These are proceedings for damages for medical negligence arising out of a tragic sequence of events involving the first plaintiff, Pei Ling Zheng.
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The plaintiff seeks an interim payment pursuant to s 82 of the Civil Procedure Act 2005 (NSW) in the sum of $166,227.50. The defendant, the South Eastern Sydney Local Health District, consents to the application. For reasons I will shortly explain, the first plaintiff is currently a person under legal incapacity. Accordingly, it is necessary for the Court to approve the payment notwithstanding the defendant's consent to the orders sought, as contemplated by section 76 of the Civil Procedure Act.
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Ms Zheng presented to the emergency department of Saint George Hospital late on the evening of 7 May 2015 for advice and treatment of headaches from which she had been suffering over a period of some ten days. Early in the morning of 8 May 2015, a non-contrast CT scan of her brain was performed. The scan was reviewed by emergency department staff who reported "NAD", an acronym used in medical terminology to report that no abnormality was detected. Separately, a report was recorded concluding that Ms Zheng was suffering from "nil acute pathology". Ms Zheng was discharged from hospital and returned to her home with her husband.
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After Ms Zheng’s discharge at 8:59am on 8 May 2015, a radiologist reported on the CT scan, concluding that the appearance of the scan was consistent with acute subarachnoid haemorrhage and a small amount of intra-ventricular haemorrhaging associated with mild to moderate hydrocephalus. That conclusion was not reported to Ms Zheng or her family and she was not called back to hospital. At about 5:30pm that day, members of her family found her unconscious on the bedroom floor of her home. She was treated that evening and the following day was transferred to the Prince of Wales Hospital where she came under the care of a neuro-radiologist.
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Ultimately, as already noted, Ms Zheng suffered a catastrophic result. She is now in a condition described by the specialist as "locked-in syndrome". Specifically, the experts believe that she may be capable of comprehending what is going on around her but is unable to communicate any response except with small movements of the eyes. She requires complete care 24 hours a day and that is likely to remain the case. There does not appear to be any prospect of improvement.
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The present application is supported by two expert reports in the form of letters to Ms Zheng's solicitor, Mr Allan. The first is a letter dated 7 December 2016 from Professor Marcus Stoodley, Professor of Neurosurgery at Macquarie University. Professor Stoodley has answered a series of questions concerning the events described above. Without descending to the detail of his letter, the burden of his opinion is that there is little doubt that Ms Zheng suffered a subarachnoid haemorrhage on 7 May 2015. It ought to have been diagnosed from the history with which she presented alone, leaving aside the CT scan. It ought also to have been diagnosed upon proper examination of the CT scan and that earlier diagnosis would in all likelihood have had the result of earlier intervention and a significantly better outcome.
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Separately, there is a letter dated 29 July 2016 from a neurosurgeon, Mr Noel Dan, who reports substantially similar conclusions and opinions.
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In all the circumstances, and noting the consent to the application by the defendant, I am satisfied in the terms of s 82 of the Civil Procedure Act that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant. I reach that conclusion having considered the inherent uncertainties of litigation, but the material before the Court in my opinion can only conduce to that conclusion.
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The consent orders record that the parties consent to orders approving the interim payment pursuant to s 76 of the Civil Procedure Act. On the strength of the material summarised above, I am satisfied that it is appropriate for the Court to give its approval to the payment.
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The consent orders also ask the Court to note, amongst other things, its satisfaction that if the proceedings went to trial the first plaintiff would obtain the judgment for substantial damages from the defendant in an amount in excess of the interim payment. For the reasons already stated I am satisfied in those terms.
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For those reasons, I make orders 1 to 6 and note the matters recorded in pars (a) and (b) of the consent orders signed by the parties.
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I stand the proceedings over to 9:30am on 10 August 2017 before me for the purpose of making directions as contemplated by Order 3 made today.
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Decision last updated: 04 October 2017
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