Orford v Dr Lyons [2020] NSWSC 1022

Supreme Court New South Wales

Medium Neutral Citation: Orford v Dr Lyons [2020] NSWSC 1022 Hearing dates: 31 July 2020 Date of orders: 06 August 2020 Decision date: 06 August 2020 Jurisdiction: Common Law Before: Harrison J Decision: Direct parties to bring in short minutes of order within 7 days Catchwords: CIVIL PROCEDURE – medical negligence – where plaintiff developed post-operative venous thromboembolism – issue of whether defendant attended personally upon plaintiff in hospital in days following surgery – where plaintiff's liability evidence in chief completed – whether plaintiff should be permitted to rely upon additional medical specialists concerning specialist inpatient billing practices Category: Procedural and other rulings Parties: Matthew Joseph Orford (Plaintiff) Dr Matthew Lyons (Defendant) Representation: Counsel: M McAuley (Plaintiff) T Berberian (Defendant)

Solicitors: McAuley Hawach Lawyers (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2016/381763 Publication restriction: Nil

Judgment 1. HIS HONOUR: On 8 August 2016, Matthew Orford underwent a right hip resurfacing procedure performed by Dr Matthew Lyons at a hospital conducted by the second defendant. Mr Orford was assessed on admission as being at high risk for a venous thromboembolism. Despite the fact that the draftsperson of the amended statement of claim has gone to excruciating lengths to disguise what Mr Orford actually alleges and to camouflage what this relatively straightforward case is really about, it eventually emerges that Mr Orford sustained a postoperative paradoxical embolus causing a cerebral infarct causing him to collapse at the hospital and to sustain injury. Mr Orford contends that he was negligently treated by Dr Lyons in that he failed to prescribe or administer an appropriate prophylactic anticoagulant regime to reduce the risk of deep vein thrombosis and embolus. Mr Orford also alleges that Dr Lyons failed adequately to supervise or monitor his post-injury recovery or to observe and treat signs of venous problems. 2. That later allegation is presently relevant. Mr Orford asserts that Dr Lyons did not attend to examine him between 9 August 2016, the day following his surgery, and 15 August 2016, when he had his catastrophic fall. Dr Lyons does not deny that allegation, declining instead only to admit it, but says in the alternative that Mr Orford was in fact attended by VMOs or by a rehabilitation physician and nursing staff. The determination of whether or not anybody attended Mr Orford during this period, and if so who it was, has become a source of agitated concern for Mr Orford's legal team. 3. This has produced two related issues. The first is whether Mr Orford should be permitted at this stage of the proceedings, in support of his liability claim generally, to qualify further liability experts in addition to Dr Paul Roy, a cardiologist, Dr Peter Slezak, a physician, Dr Mark Ridhalgh, an orthopaedic surgeon and Dr Peter Conrad, a general and vascular surgeon, upon whose reports Mr Orford already relies. The second is whether Mr Orford should also be allowed to rely upon a different (as yet unspecified) expert medical specialist in order to confront Dr Lyons' experts concerning the allegation that he failed personally to attend upon Mr Orford on the days following surgery. 4. With respect to the first issue, it should be noted that Dr Lyons' solicitor was notified on 6 February 2020 by the solicitor for the second defendant that a settlement agreement had been reached between the hospital and Mr Orford upon the basis of a judgment in favour of the hospital with no order as to costs. Dr Lyons' solicitor formed the view at that time that he should not consent to the proposed settlement agreement until such time as Mr Orford had completed service of his liability evidence. On 13 February 2020, the matter was listed for directions when the following relevant orders were made: 1. Dr Lyons to inform Mr Orford and the hospital on or before 11 March 2020 what his position was in relation to the entry of the consent judgment between Mr Orford and the hospital. 2. Mr Orford to serve his remaining expert evidence by 31 March 2020. 3. Dr Lyons to serve available expert evidence by 31 May 2020. 1. Dr Lyons' solicitors emailed Mr Orford's solicitors on 1 April 2020 seeking confirmation that they had completed service of Mr Orford's expert evidence. Mr Orford's solicitor replied the same day, indicating that he had complied with the Court's orders, clearly suggesting that he had obeyed the order requiring him to serve remaining expert evidence by 31 March 2020. In those circumstances, where Mr Orford had confirmed in writing that he had completed service of his primary liability evidence and where none of it implicated the hospital, Dr Lyons agreed to the proposed settlement in favour of the hospital. 2. Dr Lyons now "strenuously objects" to any order sought by Mr Orford that would permit him to serve any further primary liability evidence. Dr Lyons maintains that there would be actual and significant prejudice to him if that course were allowed. Dr Lyons relied upon the advice from Mr Orford's solicitor that all primary liability evidence had been served when seeking instructions about whether or not to agree to a judgment in favour of the hospital, thereby irrevocably forfeiting any prospect of a claim for contribution from it. Dr Lyons does not oppose Mr Orford serving any supplementary report from a previously qualified and served expert responding to Dr Lyons' expert evidence if that were considered to be necessary. Mr Orford already has opinions from the four specialists earlier referred to and limiting Mr Orford to reports from them will not, in Dr Lyons' submission, cause any prejudice to Mr Orford. 3. In my opinion, Mr Orford should not in these circumstances be permitted to rely upon further liability experts. I do not know, and Dr Lyons presumably also does not know, what further or other liability issues Mr Orford anticipates or may wish to raise. However, it is now too late for him to do so. He not only agreed to orders that he serve his liability evidence by a certain date, but he clearly indicated to Dr Lyons that he had done so. Whether or not Dr Lyons suffered more than presumptive prejudice as a consequence, Mr Orford should not be permitted to have another go. 4. The second issue is related. Mr Orford wishes to be permitted to rely upon a different specialist (or possibly specialists) in order to confront the question of whether or not Dr Lyons attended Mr Orford in hospital following his surgery having regard to the evidence upon which Dr Lyons wishes to rely about the billing practices of orthopaedic surgeons for such attendances. Mr Orford wishes to challenge the proposition, if it is advanced, that he was visited by Dr Lyons in hospital following his surgery. Mr Orford maintains that he was never billed for such consultations or attendances and relies upon the fact that Dr Lyons made no contemporaneous note of having done so. 5. In an attempt to explore this question, Mr Orford issued a notice to produce on 8 July 2020 seeking production by Dr Lyons of the following documents: 1. All records including clinical accounting, Medicare and health insurance records demonstrating Dr Matthew Lyons' attendances on the plaintiff in respect of the period 8 August 2016 to 16 August 2016 at the Mater Hospital… 2. All protocols, guidelines and other documents relied upon by Dr Matthew Lyons in determining anticoagulation and assessment as to the risk of a VTE provided to the plaintiff in the period 8 August 2016 to 16 August 2016. 1. Dr Lyons produced documents in response to the notice on 20 July 2020. The letter from his solicitors accompanying those documents contained the following notation: "By way of clarification, we advise the following: In accordance with usual practice, Dr Lyons charged the plaintiff a surgical fee only. He did not charge for in-patient attendances. We note Dr Solomon has confirm [sic] that this is usual practice for orthopaedic surgeons. Dr Lyons relied on the ASA Guideline dated September 2016. Although this Guideline was not published until September 2016, it was ratified at the ASA annual scientific meeting on 4 May 2016. Dr Lyons was present at this meeting. Received a copy of the Guideline at this meeting and discussed and agreed on the Guideline at this meeting." 1. The reference to Dr Solomon was presumably a reference to his opinion provided in his report dated 13 July 2020. It is as follows: "Thank you for your letter of 13 July 2020 requesting a supplementary report which specifically addresses the issue of billing following a hip replacement. A surgeon who performs any surgery including a total hip replacement will visit the patient in the post-operative period whilst the patient is in hospital. These visits are not charged for and is [sic] Part of the routine post-operative care that is included in the surgical fee. There will therefore be no record of any clinical accounting. Medicare and health insurance records would demonstrate that Dr Lyons submitted a bill for each visit when he attended Mr Orford. As I have mentioned in my previous report, it is routine practice at the Mater Hospital for doctors to do their post-operative rounds without necessarily documenting their rounds in the medical records as there is a standard day to day clinical pathway progress chart that the nursing staff would complete and that would often indicate the doctor's orders. The lack of billing for an inpatient attendance does not indicate that the surgeon did not visit the patient. As mentioned above, no surgeon will bill for post-operative inpatient visits." 1. By letter dated 21 July 2020, Mr Orford's solicitors expressed incredulity that there was no record produced showing Dr Lyons' attendances on him in the relevant August 2016 period or that his clinical notes did not also include a reference to such attendances. They continue to maintain that the response to the notice to produce must be incomplete. Precisely why Mr Orford's solicitors have become so concerned about this is unclear to me. At present, Mr Orford says Dr Lyons did not see him following his operation. He will presumably say so in evidence. If he is believed, then that presumably is the end of the matter. As I have observed, Dr Lyons has not denied the allegations that he did not visit Mr Orford as an inpatient but has merely not admitted them. Moreover, for better or worse, Dr Lyons accepts that there are no documents to which he can refer to support his response: Dr Lyons merely relies upon a standard or common practice that no such documents would have been produced, either in the form of a diary or clinical records or in the form of his memoranda of fees. In the circumstances I find it difficult to understand why Mr Orford wishes to explore the matter further. The forensic balance may have been different if Dr Lyons had contended that he had made a record of his attendances but that the records had been destroyed. 2. In summary, I see no reason why Mr Orford should be permitted to qualify a further expert to deal with the billing/clinical notes issue, or indeed any issues raised in the opinions of experts upon whom Dr Lyons proposes to rely. This is particularly so having regard to the representation from Mr Orford's solicitors indicating that his liability evidence was complete. Moreover, one of Mr Orford's experts is an orthopaedic surgeon. I fail to understand why that doctor cannot provide a specific response to the opinion offered by Dr Solomon concerning billing practices adopted generally by orthopaedic surgeons for post-surgical inpatient attendances. Mr Orford should be permitted to rely on such evidence in response to Dr Lyons' liability experts as he may be advised but limited to those four experts who have already been qualified by him. 3. The parties have recently proffered competing timetables for the progress of the proceedings. In the light of my decision, they should now provide my Associate with modified short minutes of order to similar effect but taking account of these reasons. 4. Finally, and in passing, I wish to make some observations about what regrettably has become the preferred form of statements of claim in medical negligence matters. I apologise to those practitioners who appear regularly in my list who may have heard these comments before. More often than not these days, those who charge fees for preparing statements of claim seem to be inspired by the erroneous perception that they should start with the day that the plaintiff first attended his or her doctor and that they should thereafter refer in ridiculous detail to every single event that can be extracted from doctors' notes or clinical records or radiological findings or even passing comments by the doctor's receptionist. A pleading commencing a cause of action alleging a failure to provide reasonable medical care can in my experience rarely, if ever, be enhanced, for example, by telling the reader that the plaintiff's blood pressure was 125/68 at 10.27pm, 127/71 at 10.31pm, 122/57 at 10.43pm or that he or she slept uneventfully until woken by the night nurse for a temperature check at 4.00am! It is not uncommon for these cascading adventures in medical history to proceed in this fashion for days or even weeks, staggering endlessly through mind-numbing detail. Undoubtedly a long letter is quicker to write than a short one. I appreciate and accept that the latest edition of Bullen & Leake may be expensive but even a well-worn copy from 30 years ago will more than adequately explain, for anyone in doubt, why I hold these views.