Cerulli v South Western Sydney Local Health District [2022] NSWSC 210

Supreme Court New South Wales

Medium Neutral Citation: Cerulli v South Western Sydney Local Health District [2022] NSWSC 210 Hearing dates: 04 March 2022 Date of orders: 04 March 2022 Decision date: 04 March 2022 Jurisdiction: Common Law Before: Harrison J Decision: (1) Note the defendant on 27 January 2022 consented to respond to the plaintiffs' Notice of Interrogatories dated 13 January 2022. (2) Defendant to produce answers to the plaintiffs' interrogatories by 11 March 2022. (3) Plaintiffs to serve any forensic document expert reports within 7 days of receipt of answers to interrogatories. (4) Parties to arrange and attend a mediation or ISC by 27 May 2022. (5) Matter listed for PNL directions on 10 June 2022. Catchwords: MEDICAL NEGLIGENCE – interrogatories – interrogatories concerning medical records – where plaintiffs foreshadow suspicions about the authenticity of defendant's medical records – whether plaintiffs' concerns should be particularised before requiring the defendant to answer interrogatories on that issue Category: Procedural rulings Parties: Domenico Cerulli and Salvatore Cerulli (Plaintiffs) South Western Sydney Local Health District (Defendant) Representation: Counsel: D W Elliott (Plaintiffs)

Solicitors: Gerard Malouf & Partners (Plaintiffs) Makinson d'Apice Lawyers (Defendant) File Number(s): 2020/302667 Publication restriction: Nil

Judgment 1. HIS HONOUR: Ernestina Cerulli died on 14 November 2020 of causes legally unrelated to any issue in these proceedings. However, in their capacity as her executors, the plaintiffs have commenced the present proceedings alleging that when the deceased was an inpatient at the defendant's hospital in January and February 2020, it inappropriately administered, or failed properly to administer, her Candesartan medication for the maintenance of her blood pressure. The plaintiffs allege that her blood pressure rose to dangerous levels as a result and that she suffered a small left thalamic intra-axial bleed. Her injuries and disabilities are specified in a statement of particulars filed on 22 October 2020 with the statement of claim. 2. The defendant has denied that it was negligent in its treatment of the deceased. 3. The plaintiffs have served a list of interrogatories upon the defendant to which, with one caveat, the defendant does not object. The plaintiffs maintain that the defendant should be required to answer these interrogatories now. The defendant maintains that it should not be required to do so until further things happen. This is explained below. 4. The plaintiffs' proposed interrogatories are as follows: "Please have regard to the enclosed Medication Chart extracted from Ernestina Cerulli's Clinical Notes at the Liverpool Hospital for an admission recorded as 31 January 2020 to 7 February 2020. Please have further regard to the final entry on page 1, bottom right-hand corner, dated "31/1" and headed "Candesartan", located below and to the right of the entry "REASON FOR NURSE NOT ADMINISTERING Codes MUST be circled" Which entry is followed by a column of codes commencing at "A" for Absent and concluding at "S" for self-administered. 1. What do the handwritten entries on page 1 of the chart, commencing in the bottom right hand box headed "31/1", and located to the right of the black horizontal arrow on line two, commencing with "8" and followed to the right by 6 further boxes with 6 handwritten entries in the boxes, purport to record concerning the administration of Candesartan to Ms Cerulli in the period 21/1 – 7/2/20 at Liverpool Hospital? 2. What is the normal procedure for the completion of these 6 boxes? 3. Who made the entries in each of the six boxes? 4. At what time were each of the six entries made? 5. On what occasion were each of the six entries made? In relation to entries noted in the column dated 2/2: 6. Who made the black entry on line 2 in the 2/2 column? 7. What is the intended meaning of the entry? 8. When was the above entry made? 9. Who made the blue entry on line 2 in the 2/2 column? 10. What is the intended meaning of the entry? 11. When was the entry made? 12. What is the intended meaning of the blue two line entry "gme/ce" at the base of the diagonal arrow extending towards the entry for 2/2? 13. Who made this entry or entries? 14. When was the above entry made? In relation to entries noted in the column dated 3/2: 15. Who made the entry on line 2 in the 3/2 column? 16. What is the intended meaning of the entry? 17. What is the intended meaning of the blue-green entry in the "Pharmaceutical Review" line, in the 3/2 column? 18. Who made this entry? 19. When was it made? 20. What if anything is the intended meaning of the looping line below the box for 3/2 and tracking left to "Pharmacy" and back to another blue-green handwritten entry in the "Pharmaceutical Review" line, in the 5/2 column? 21. Who made this entry? 22. When was it made? In relation to entries noted in the column dated 5/2: 23. What if anything is intended by the use of blue/green ink for the entries in the "Pharmaceutical Review" line in the 3/2 and 5/2 columns?" 24. Who made this entry or entries? 25. When was the above entry made?" 1. The defendant perceives that these questions suggest that the plaintiffs propose to dispute the integrity of the defendant's medical records and amount in substance to an allegation of dishonesty or conduct amounting to fraud. The statement of claim contains no suggestion of this type. The plaintiffs have, however, foreshadowed that they propose to obtain the opinion of an expert forensic document examiner to support their suspicions. The plaintiffs contend that they should be provided with the defendant's answers to the interrogatories before that occurs in order that their expert can take those answers into account in expressing his or her view on the authenticity of the medical entries. 2. The defendant, on the other hand, submits that it should not be required to do so before or until the expert examiner's report, if any, is to hand. The defendant submits that if that approach is adopted, and the report raises no issue about the authenticity or integrity of the medical records in question, the answers to the interrogatories could then be provided "relatively quickly". However, if the expert report questions the authenticity or integrity of the medical records, then the fraud alleged will need to be pleaded so that the answers to the interrogatories may be provided with full knowledge and appreciation of any alleged wrongdoing.