Russell v Auckland District Health Board

[2019] NZHC 2097

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000397

[2019] NZHC 2097

BETWEEN

BRIAN LESLIE RUSSELL

Plaintiff

AND

AUCKLAND DISTRICT HEALTH BOARD

Defendant

Hearing:

21 August 2019

Appearances:

Plaintiff in Person

A Perkins QC for the Defendant

Judgment:

26 August 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 26 August 2019 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

A Perkins QC, Auckland

RUSSELL v AUCKLAND DISTRICT HEALTH BOARD [2019] NZHC 2097 [26 August 2019]

[1]        Mr Russell has brought a claim against the Auckland District Health Board. The Board now applies for summary judgment against that claim.

[2]        Mr Russell is self-represented. He suffers from a condition known as age related wet macular degeneration in his left eye and believes he is at risk for it in his right eye (which suffers from dry macular degeneration). He has undergone treatment in Australia and New Zealand. He most recently has been treated by ophthalmologists at Greenlane Hospital who are employed by the Board.

[3]        He is not satisfied by the diagnoses and treatment that he has received. In his amended statement of claim he seeks exemplary damages against the Board on a vicarious liability basis, as the employer of the various ophthalmologists who have treated him. At the hearing he concluded his submissions by requesting that the Court order that he be allowed to dictate the terms of his own treatment to the clinicians. This would be by directing that both of his eyes were to receive intravitreal injections of Avastin on a three-monthly basis and that he would determine the dosage.

[4]        The Board seeks summary judgment on the basis that Mr Russell’s claim cannot succeed.

[5]        For the reasons that follow, I grant the Board’s application. Mr Russell’s claim simply has no prospect of succeeding if it proceeds to trial.

Mr Russell’s relevant treatment history

[6]        Mr Russell suffers from age related wet macular degeneration in his left eye. It appears he previously had wet macular degeneration in his right eye. He has been diagnosed with dry macular degeneration in that eye but believes it is still afflicted with, or is at risk of, wet macular degeneration. Both conditions are apparently treatable but not curable. While in Australia his doctor, as a matter of practice, treated both of his eyes with Eylea injections (a treatment for the wet type of macular degeneration) every three months.

[7]        He returned to New Zealand. Between 17 November 2017 and 22 January 2019 he was treated by four different ophthalmologists at Greenlane Hospital. Each of them examined his eyes and reached the diagnosis that his left eye required treatment in the form of intravitreal Avastin injections on an ongoing basis but that his right eye appeared to be stable and would not benefit from further injections. Another ophthalmologist examined the relevant clinical notes and scans and reached the same conclusion.

[8]        Each of those ophthalmologists has sworn an affidavit in support of the application for summary judgment. The affidavits set out their qualifications and attendances on Mr Russell.

[9]        The first ophthalmologist to attend on Mr Russell was Dr Tahira Malik. She recounts that on 11 October 2017 Mr Russell was referred to the Ophthalmology Service at Auckland District Health Board by a Dr Mithraratne of Balmoral Doctors. The referral noted that Mr Russell’s previous doctor in Australia provided “current maintenance treatment” in the form of Eylea injections every three months in each eye.

[10]      Dr Malik first reviewed Mr Russell’s case on 30 November 2017. It had been a little over three months since his last round of injections on 23 August 2017. She noted from the images provided in the referral that he had choroidal neovascularisation (CNV), a type of abnormal blood vessel formation causing the “wet” type of macular degeneration, in his left eye in 2010 and in his right eye in 2016. Mr Russell reported that he felt his vision had declined in both eyes over the preceding three to four weeks. Dr Malik assessed the various documents and advised treatment with intravitreal Avastin injections to both eyes. She explains that Eylea was unavailable at the time in a public hospital setting, and that Avastin’s duration of effect was not as long, requiring injections every four to six weeks, at least initially. This was explained to Mr Russell who was also given written information on his condition and intravitreal Avastin, as well as charts to check his eyes’ vision. She administered injections to both eyes and scheduled three further appointments for injections and assessments at approximately five-weekly intervals.

[11]      Dr Malik also requested an early follow up appointment to assess the effect of the Avastin injections, with the intention of  applying  for  intravitreal  Lucentis  if Mr Russell’s condition did not respond to Avastin, based on the details of Mr Russell’s medical history which suggested such a change might be required. Mr Russell did not attend the scheduled appointments. At the hearing Mr Russell did explain that at times he missed appointments due to being unwell, including at one point being hospitalised for issues relating to his stomach.

[12]      Dr Malik states in her affidavit that at the 30 November consultation Mr Russell asked her if she was Muslim, and she confirmed she was. At the hearing Mr Russell denied this, saying he knew she was a Muslim from her clothing and that he would never go as far as to inquire directly. In his statement of claim Mr Russell pleads that, following that consultation, he repeatedly asked to change specialists on religious grounds, explaining “I am not Muslim” when asked. He pleads that he was told by an appointment coordinator that it was Dr Malik’s decision as to whether he would be able to change doctors. Dr Malik in her affidavit says that she never insisted on consulting with Mr Russell. She says it was routine practice to have the same doctor conduct follow up reviews to ensure continuity of care, but that if she had been aware Mr Russell wanted to change consultants she would have referred him to another consultant at the clinic. Further, her permission was not required for a patient to see another doctor.

[13]      The next attendance on Mr Russell was by Dr Martin Siemerink on 10 March 2018.  Mr Siemerink has also sworn an affidavit.  He notes it had been more than   12 weeks since Mr Russell’s last Avastin injections. He says Mr Russell reported stable vision in his right eye (though he did mention some possible diminishment of vision occurring during the early years of his visual development) but that his left eye’s vision had started to deteriorate three weeks prior to the appointment.

[14]      After examining both Mr Russell’s eyes and his medical scans, Dr Siemerink’s assessment was that there was a difference in the two eyes meaning that a repeat injection was warranted in the left eye but not the right, as it lacked signs of active CNV requiring the treatment. He advised Mr Russell of this and advised that he monitor his right eye. Dr Siemerink explains that there is consensus in the

ophthalmologic community to consider discontinuation of treatment with Avastin injections when there are no signs for active CNV on the relevant scans 12 weeks after the most recent injection. Mr Russell received an injection to the left eye on that day and a review was scheduled with Dr Malik within 4–6 weeks’ time.

[15]      Dr Malik attended on Mr Russell again on 19 April 2018. He reported having lost a bit of focus in his right eye about four weeks earlier, with no change since then. He had been seen in the Glaucoma Clinic around that time. On examination she noted there were no changes in Mr Russell’s right eye suggesting it required treatment by Avastin injection. His left eye showed symptoms requiring treatment. She suggested re-treating Mr Russell’s left with an injection at the Clinic, but Mr Russell declined. She did note that there were problems with the circulation in Mr Russell’s eyes, which was more pronounced in his right eye, and discussed with him that this might also contribute to loss of focus in his vision.

[16]      Dr Malik next attended on Mr Russell on 24 May 2018. Mr Russell reported vision decreasing in his left eye since 2–3 weeks prior. Her assessment of his right eye was that it was stable in terms of indicators that it required treatment by injection. However, his eyes were infected so she prescribed antibiotic eye drops for both eyes and requested an injection appointment for his left eye the following week.

[17]      On 23 June 2018 Mr Russell was seen by a nurse specialist and underwent a left eye intravitreal Avastin injection. He insisted on receiving a right eye injection also. The nurse specialist consulted Dr Rachel Niederer. Dr Niederer has also sworn an affidavit. Dr Niederer did not treat Mr Russell directly but did review the medical imaging and clinical notes on Mr Russell. She was of the view that no clinical evidence suggested he required such an injection. Mr Russell was offered an appointment with Dr Niederer that afternoon during her clinic. He declined that offer and advised the nurse specialist he would make a complaint to the hospital’s management.

[18]      On 3 July 2018 Mr Russell saw Dr Siemerink for a follow up clinical appointment. Dr Siemerink recounts noting that the condition of Mr Russell’s right eye indicated that it would not benefit from further Avastin injections but that Mr

Russell did not accept this, and continuously interrupted him to explain that his right eye’s vision had deteriorated and required an injection. Mr Russell also declined the offer of a second opinion from Dr Clairton De Souza who was next door. Eventually Mr Russell left without receiving his scheduled injection for his left eye.

[19]      Mr Russell was next treated by Dr de Souza on 31 July 2018. Dr de Souza has sworn an affidavit. He says at that 31 July 2018 clinic, because it was his initial examination of Mr Russell and due to the history of bilateral previous treatments, he opted to indicate bilateral injections to be performed on 2 August 2018 and to conduct close monitoring, reviewing him one month later.

[20]      On Dr de Souza’s second examination, on 28 August 2018, Mr Russell’s right eye did not show signs that treatment by injection required. An injection for the left eye was indicated and performed later that day. Dr de Souza saw Mr Russell a third time on 2 October 2018 in which his left eye was injected again. As his right eye remained stable, no injection was performed. However, hysite eye drops were prescribed for ocular hypertension in both eyes.

[21]      Mr Russell then missed an appointment with Dr de Souza on 18 November 2018. On 4 December 2018 his left eye continued to require treatment while his right eye remained stable and did not require further treatment.

[22]      Dr de Souza says that he was careful in his first meeting with Mr Russell to explain the indications, use and purpose of treatment with intravitreal Avastin injections. He says he gave similar explanations in each interaction with Mr Russell. However, from the second visit onwards he says Mr Russell’s demeanour changed and he advised he would not continue the proposed treatment, leading Dr de Souza to suggest his case be transferred to Dr Sarah Welch.

[23]      Dr Welch has sworn an affidavit. She first saw Mr Russell on 6 December 2018. As Mr Russell’s retinal consultant and the Service Clinical Director for Ophthalmology at the Board she was aware of his treatment history. She formed the same view as all the previous ophthalmologists, that Mr Russell’s right eye did not

require intravitreal Avastin injection. She says she also attempted to explain this to Mr Russell but he would not accept this view.

[24]      Dr Welch saw Mr Russell again on 22 January 2019. She once again concluded his right eye did not require injection. She also sent a letter to Mr Russell’s General Practitioner following that consultation, noting that there were some risks to providing an intravitreal Avastin injection to Mr Russell’s right eye, meaning that she could not ethically perform one that was medically unnecessary. She wrote that this would not preclude such treatment in the future if there was clinical evidence that the eye would benefit from it. This was Mr Russell’s final consultation with a doctor employed by the Board on this matter.

[25]      I also note that Dr Malik explains in her affidavit that Mr Russell has a degenerative eye condition and so would remain at risk of gradual visual loss in his right eye due to atrophic changes separate to any issues resulting from the particular condition treated by the Avastin injections.

[26]      Throughout this process Mr Russell consistently disagreed with the ophthalmologist’s assessments, considering his right eye required injections as well. Throughout the process he raised this view with the doctors treating him to no avail.

Summary judgment

[27]      The standard for summary judgment in favour of a defendant is set out at r 12.2 of the High Court Rules 2016:

Judgment when there is no defence or when no cause of action can succeed

…

(2) The court may give judgment against a plaintiff  if the  defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[28]      The standard for summary judgment in favour of a defendant is high.1 It will generally not be appropriate to grant summary judgment unless the Court is satisfied

1      Woolf v Kaye [2016] NZHC 1628.

on the balance of probabilities that none of the plaintiff’s claims can succeed.2 The Court should not resolve genuine conflicts of evidence or questions of credibility at the summary judgment stage.3 However, in determining whether there is such a genuine conflict, the Court is entitled to take a robust and critical view of the factual claims made and their measure of support.4

Exemplary damages

[29]Mr Russell in his amended statement of claim seeks exemplary damages.

[30]      For Mr Russell to succeed he must show that he has been caused harm by the conduct of the defendant. In other words, he must show the ophthalmologists’ ongoing practice of denying him intravitreal Avastin injections in his right eye has caused him negative medical consequences such as loss of vision.

[31]      For the Court to award exemplary damages the doctors’ conduct must have been “outrageous” and they must have either deliberately intended to cause Mr Russell some sort of harm or have been subjectively reckless as to that possibility.5 This is a high standard. At the trial, Mr Russell would have to prove the ophthalmologists knew that not giving him the injections would damage his vision or would expose him to serious or unwarranted risk of damage to his vision when they decided not to give him the injections.

The applicant’s case

[32]      Mr Perkins QC for the Board submitted that there are three discrete reasons why the Court should be satisfied the plaintiff’s claim cannot succeed and summary judgment is appropriate:

(a)the plaintiff cannot establish that harm has been caused;

2      Jones v Attorney-General [2004] 1 NZLR 433 (PC) at [10].

3      Totaranui Trustees Ltd (in Liq) v Gunn [2014] NZHC 3136 at [9].

4 At [9].

5      Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149.

(b)any harm caused is not a result of the actions or inaction of the ophthalmologists; and

(c)the ophthalmologists did not intend to cause harm and were not subjectively reckless as to causing harm.

[33]      At the hearing and in his written submissions Mr Perkins walked through these points in some detail. He submits that, even accounting for Mr Russell being self- represented, the proceedings are essentially ill-conceived and have no prospect of succeeding.

Mr Russell’s case

[34]      Mr Russell, not being a lawyer, did not frame his argument specifically in terms of the summary judgment principles. He simply laid out a version of the case he hopes to present at trial in order to demonstrate its viability.

[35]      He argues that harm has been caused to his right eye. His view is that it requires the Avastin injections and because he has not had them he has lost some peripheral vision and depth of field. He argues that there are further potential serious consequences if he is not given the treatment he seeks, including a rapid onset of loss of central vision causing legal blindness. Even if he were to immediately resume treatment of his right eye he says there would still be a serious risk of permanent damage to his vision.

[36]      Regarding the intention or subjective recklessness of the ophthalmologists to cause him harm he has suggested two possible motivations:

(a)The first is that Dr Malik bears him ill will because of their religious differences based on him stating that he is not a Muslim.

(b)The second is to do with his involvement in investigating a medical scandal which he believes is the subject of a political cover-up in both Australia and New Zealand. He claims his investigation of this scandal has caused authorities, potential employers and medical professionals

in Australia and New Zealand to turn against him and seek to cause him harm.

Discussion

[37]      Quite simply, I am satisfied that there is no way that Mr Russell’s claim could succeed if allowed to go to trial.

[38]      First, Mr Russell will not be able to establish that harm was caused to his right eye.

[39]      The Board has provided affidavits from four qualified ophthalmologists who have assessed Mr Russell’s case, as well as one ophthalmologist who evaluated the notes and scans on his file. They all reached the same view; that Mr Russell’s right eye would not benefit from further injections. Their affidavits credibly explain that the particular issue that Avastin injections treat is not an active concern for Mr Russell’s right eye. Further complicating matters of proof, he has a degenerative condition, which exposes him to gradual loss of vision regardless of the injections.

[40]      Mr Russell has not led any expert evidence to contradict these diagnoses and support his claims about his right eye. He has provided the clinical notes from his previous doctor in Australia, whose practice was to treat both of Mr Russell’s eyes with injections. He has provided medical photographs of his eyes taken by an optometrist. He says the optometrist told him to get to the hospital as fast as he could

– and that she is a reliable and unbiased source of advice because she did not know who he was. He did not discuss his treatment history with her. He has provided various articles from the internet which he considers support his own assessment of what treatment is needed. He also says that he also cannot get treatment from a private specialist, as they will also be turned against him due to the scandal.

[41]      Respectfully, none of this evidence has any real credibility when laid against that provided by the Board, even on the papers. Mr Russell’s previous doctor in Australia adopted a course of treatment. That was considered and re-evaluated by multiple doctors treating Mr Russell subsequently, who considered the position regarding his right eye had changed. Mr Russell has not been able to demonstrate that

the articles from the internet mean that, in his particular case, injections to the right eye are appropriate. He has not provided any means for the Court to interpret the various medical documents and photographs.

[42]      When I asked Mr Russell what his intentions were for the trial, he said the only person he intended to call as a witness was himself. He says he knows the subject well enough to speak from a position of authority. This simply will not do. Quite simply, there is no way that this Court would ever accept the unsupported evidence of a passionate layperson plaintiff over that of five qualified doctors (with expert training in the field) regarding the appropriateness of a course of medical treatment. Mr Russell cannot establish what harm his right eye has been caused by the lack of Avastin injections on the balance of probabilities.

[43]      There is also no way Mr Russell could prove intention to cause harm or subjective recklessness on the part of the ophthalmologists. His allegations against Dr Malik are, frankly, offensive. The difference between their accounts of what happened are of no consequence. Either way, they are a bare allegation with no support other than that Dr Malik has not agreed with Mr Russell’s self-diagnosis and he does not share her religion. The allegations of a wider conspiracy simply do not make sense. I am not convinced Mr Russell could prove the existence of the scandal he alleges in Court. Even if he could, there is no way it could explain why the doctors of Greenlane Hospital have chosen to retaliate by denying a particular treatment to his right (but not left) eye, while otherwise treating him as a normal patient. The picture that clearly emerges from the affidavits is of a series of dedicated doctors who have endeavoured to treat Mr Russell with patience and care despite his continued protestations about their diagnoses.

[44]      Mr Russell also sought to have the Court allow him to dictate the terms of his treatment in the future. Granting such relief is not within the jurisdiction of the Court. Even if it were, the same reasons which make his exemplary damages claim untenable will be a barrier to the Court allowing Mr Russell to self-treat.

[45]        I have some measure of sympathy for Mr Russell. He gave the impression in the hearing of a man highly distressed by a belief that the medical institutions

responsible for treating his condition were not doing so properly and were disregarding his views. That is not an easy position. Given Mr Russell’s concerns implicate his rights as a patient, I have taken his claim seriously. However, his concern as pleaded is not an appropriate basis for an exemplary damages claim in the High Court. There seems to be no medical evidence specific to Mr Russell’s case to support the idea that he requires the injections he seeks beyond that it was what he was accustomed to in Australia, and his own internet research. In fact, there is an overwhelming body of expert evidence that shows his case is not arguable. There is no way that the doctors’ conduct could ground exemplary damages. Rather than continuing to pursue this matter in the Courts I urge him, as Mr Perkins did at the hearing (from a “humanitarian” perspective, as he put it), to resume receiving injections for his left eye, which appear to be crucial for preventing further deterioration in his vision. As Mr Russell acknowledged at the hearing, this would be a sensible thing to do.

Result

[46]      I give judgment against Mr Russell on his claim, being satisfied that it cannot succeed.

[47]      This may be a case where it is pointless to make an order regarding costs. If the Board does seek costs it can file a memorandum within five working days.

Associate Judge Sargisson