New South Wales Supreme Court CITATION : Eldridge v Molodysky [2001] NSWSC 551 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20696/2000 HEARING DATE(S) : 18 June 2001 JUDGMENT DATE : 3 July 2001 Dinah Eldridge (Plaintiff) PARTIES : Eugene Molodysky (Defendant) JUDGMENT OF : Master Harrison Mr M Bozic SC COUNSEL : (Plaintiff) Mr Higgs SC Charlton Shearman (Plaintiff) SOLICITORS : Tress Cocks & Maddox (Defendant) CATCHWORDS : Extension of time - ss 60G & I - alleged medical negligence - delay - fair trial LEGISLATION CITED : Limitation Act 1969 (NSW) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 CASES CITED : BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195 Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128 DECISION : (1) Leave to grant the plaintiff an extension of time in which to commence proceedings for alleged medical negligence from 1980 to 1996 is refused ; (2) The amended notice of motion is dismissed; (3) Costs are reserved. 11 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON TUESDAY, 3 JULY 2001 20696/2000 - DINAH ELDRIDGE v EUGENE MOLODYSKY JUDGMENT (Extension of time - ss 60G & I - alleged medical negligence; delay; fair trial) 1 MASTER: By amended notice of motion filed 14 May 2001 the plaintiff seeks an order extending the time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on her affidavits sworn 19 December 2000 and 5 April 2000 and the affidavit of Tina Foukas sworn 7 May 2001. The defendant relied on his affidavit sworn 22 March 2001 and the affidavit of Karen Enid Mowbray sworn 21 March 2001. 2 These proceedings relate to the alleged failure from approximately 1980 to 1996 by the defendant Dr Molodysky to correctly treat and diagnose the disease from which the plaintiff suffered, in accordance with proper professional standards of skill and care. In 1982 the plaintiff alleged that she complained about persistent aching in her right arm and tingling sensations in the fingers of her right hand. In 1996 the plaintiff was diagnosed as having a neurofibroma in her neck. In 1996 and 1997 the plaintiff underwent two operations. As a result of the operations the plaintiff suffers from Horners syndrome and loss of function and pain in her right arm. The Law 3 The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1 and in BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) Council of the City of Sydney v Zegarac (1997-98) 43 NSWLR 195 and Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128. The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. 4 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 5 For the purposes of this application I have taken the facts at their highest. I carefully observed the plaintiff during cross examination and I formed the opinion that she was giving truthful evidence. (1) The plaintiff was born on 28 April 1959 and is now 42 years of age. (2) In about 1980 the plaintiff consulted Dr Eugine Molodysky the defendant with regard to persistent aching in her right arm and tingling sensations in the fingers of her right hand. The plaintiff continued to consult the defendant until late 1998 when she moved from Bondi Beach to Cremorne and changed general practitioners to a Cremorne based one. (3) During that 18 year period the plaintiff repeatedly consulted Dr Molidysky with the same symptoms and was variously referred to a skin specialist, a chiropractor and a back specialist. (4) During 1980 the plaintiff frequently saw Dr Molodysky and always mentioned the gradually increasing right arm pain and tingling. Even if the plaintiff was seeing him for another reason she said that would always mention the continuing aching right arm and tingling. (5) In approximately 1984 the plaintiff began to develop abnormal pigmentation on her face. The defendant referred her to Dr Anthony D White a dermatologist on about 20 January 1984 who diagnosed the plaintiff with melasma. Dr White advised the plaintiff to use a broad spectrum sunscreen in the morning and prescribed a hydroquinone cream at night. (6) On 11 November 1985 the plaintiff consulted Dr John Casey an endocrinologist regarding her facial pigmentation. In his report dated 11 November 1985 Dr Casey stated: "This patient has no endocrinopathy and I know that this increased sensitivity of the skin melanophores to sunlight is generally at intractable problem. The general tendency is to a fading in due course, and the dermatologists generally advise a good sun screen." (7) On 18 October 1983 Dr D B Wightman in his x-ray report to the defendant that that "No abnormality is detected in the cervical spine." (8) On 12 December 1983 the plaintiff attended Dr Roger Rowe an orthopaedic surgeon for her continuing right arm symptoms. Dr Rowe could find no clinical abnormality in the neck or upper limbs and no neurological deficit. He was uncertain as to the cause of the plaintiff's rather unusual symptoms and stated that he was either a result of posture of alternatively pressure on the ulna nerve in the proximal forearm as a result of her studies as an Arts student at university. He concluded that if the plaintiff did not improve over the next couple of months it would be worth getting an EMG and he would review the plaintiff then. It appears no referral was made. The health insurance records do not record a claim for such a referral. (9) In 1993 the plaintiff first noticed a lump on the right side of her neck. In 1996 she consulted the defendant in relation to the lump. He sent the plaintiff for a CT scan on her neck. (10) Dr Michael Houang in his report dated 19 September 1996 concluded: "The appearances suggest a neurofibroma probably involving the brachial plexus and extends to the right axillary region and also the lung apex. No definite intra-dural component is seen but there is possibly extension towards the intervertebral foramen of C7/T1 on the right. This is seen in axial image 13." (11) The defendant referred the plaintiff to Dr Brian Sheridan a neurosurgeon who advised her that he suspected she had a neurofibroma and that it might be malignant. An operation would need to be performed to investigate the tumour. (12) In October 1996 Dr Sheridan referred the plaintiff to Dr Bentivoglio. In 1996 and 1997 Dr Bentivoglio performed two operations on the plaintiff to remove the tumour. After the first operation Dr Sheridan and Dr Bentivoglio told the plaintiff that she may not be able to use her right arm for a while because the nerves were damaged and nerves are very slow to regenerate. (13) On 2 November 2000, Dr Bentivoglio told the plaintiff told the plaintiff that her tumour was the largest tumour he had ever operated on in that area and he had shown images of it to his colleagues. Most of them said they would not have operated on it. This came as a shock to the plaintiff and caused her to turn her mind to the issue of how it came about that the tumour could have been allowed to grow, undiagnosed through all these years until it had become virtually inoperable. (14) On 9 November 2000 the plaintiff consulted Mr Malcolm Charlton, solicitor to seek advice as to whether she had a viable claim against Dr Molodysky. (15) On 17 November 2000 the plaintiff read the report of Dr Peter Petty, neurosurgeon and she became aware of the connection between the condition of her arm and hand the negligent lack of diagnosis of the tumour causing nerve compression. Prior to this she was unaware from the medical perspective whether timely diagnosis and instruction in 1983 would have saved her from the conditions from which she suffers. 6 In November 2000 at the consultation with Dr Bentivoglio the plaintiff became aware that the pain and loss of movement in her right shoulder and arm were permanent. Hence it was not until November 2000 that the plaintiff became aware of the nature or extent of her injury and the connection between the personal injury and the defendant's omission. The notice of motion was filed on 14 May 2001. The plaintiff acquired the knowledge within the time period stipulated by s 60I(1)(b). The defendant rightly conceded that the plaintiff has passed through the s 60I(1)(a)(ii) and (iii) thresholds within the time prescribed by s 60I(1)(b). 7 As the plaintiff has passed through the s 60I(1)(a)(ii) and (iii) gateways, I turn to consider whether it is just and reasonable to extent the limitation period. This decision is a finely balanced one. The defendant conceded that the plaintiff has a real case to advance. The ultimate test in any such application is whether a fair trial can be conducted notwithstanding any delay (Wynter). 8 The defendant has admitted the plaintiff suffered from a malignant tumour but denied that she presented a full symptomatology to the defendant. The defendant does not admit that he was negligent in his treatment of the plaintiff. I accept that with the passing of a period spanning from 20 years it can be expected that memories will have faded with the effluxion of time and some witnesses may not be able to recall with sufficient accuracy, the contents of material conversations. Indisputably there is presumptive prejudice. 9 The defendant submitted that he is actually and significantly prejudiced because of the lack of medical records, primarily those that relate to the early 1980's, the period when the plaintiff claims the defendant negligently misdiagnosed her symptomatology. According to Ms Mowbray (the defendant's solicitor). In October 1983 the defendant referred the plaintiff for a cervical x-ray with functions reviews. Neither the plaintiff nor the defendant has been able to produce this radiological scan. Further, the record of Dr Roger Rowe, orthopaedic surgeon, consultation in 1989 (if it did actually take place) is no longer available. However one report dated 12 December 1983 was produced on subpoena by Dr Rowe. In relation to a 1983 referral to Dr Rowe the defendant understood that Dr Rowe did not recommend that he (the defendant) immediately refer the plaintiff for an EMG study. According to the defendant, Dr Rowe only wished to review and arrange an EMG study if the plaintiff's symptoms continued over the next few months. As the plaintiff did not return to the defendant complaining of any symptoms relating to her right limb, no further referral was made by the defendant. 10 The defendant indicated that he referred the plaintiff to Dr Rowe in 1989. The plaintiff's evidence is that she did not consult Dr Rowe in 1989. As previously stated the Health Insurance Commission records indicate that the plaintiff did not make a claim for a 1989 attendance upon Dr Rowe. Thus, it seems that the plaintiff had only one consultation with Dr Rowe and that record is available. However, at trial there would be a factual dispute as to whether the defendant gave the plaintiff a referral to Dr Rowe in 1989. The defendant has no independent recollection of it nor what the plaintiff said to him. He only has a file note to say that he wrote such a referral. Whether the plaintiff did or did not follow up the referral, if it in fact occurred, is an important issue. 11 Ms Mowbray deposed that the records of Dr Anthony White, dermatologist, relating to his consultations in 1984. Those of Dr Terrence Cody, obstetrician and gynaecologist, relating to his consultations in the early 1980's were unavailable. In relation to the records of Dr Alan Griffiths, chiropractor, relating to his reviewal of the plaintiff in the early 1980's, only one letter dated 9 March 2001 has been located. The plaintiff only consulted him a few times. The records of Dr David Moor, chiropractor, relating to the plaintiff from the early 1980's are not available. Once again the plaintiff recalled only seeing him a few times. However, it is my view that the chiropractor's reports and these doctors' reports are not germane to the issues in dispute in this case. They are peripheral. 12 Of more critical importance is the parties recollection of conversations. The defendant has deposed that he has a very limited recollection of the plaintiff. While he recalled the plaintiff he did not recall any of the specific consultations he had with her from 1980 through until 1996. The decisions made by the defendant in relation to the management and treatment of the plaintiff following any investigations and referrals to specialist involved a number of value judgments. The defendant was unable to recall his process of reasoning in this regard. While the medical notes do assist in reconstructing the events to some extent any knowledge of a value judgment made which involved an assessment of the plaintiff at the time independent of the notes has been lost. In relation to specific consultations, the defendant has to rely on his medical records and his usual practice. His usual practice in relation to complaints of pain is to make a note of them. The defendant has not seen the plaintiff since 10 March 1998. The first time he had cause to recall the plaintiff's treatment in the 1980's was when he was served with the statement of claim. Essentially, the nub of the dispute between the plaintiff and defendant will be the content of actual conversations that took place between them and when they occurred. 13 The plaintiff submitted that the defendant finds himself in the position that doctors often do, in that they have no specific recall of events and are reliant upon their notes and their usual practice in giving evidence. However, as the plaintiff seeks to bring a claim outside the limitation period, the situation is different because prejudice has to be considered. It is my view that the lack of independent recollection of the defendant, as to the consultations and the content of conversations he had with the plaintiff and the missing radiological scan taken in 1983, means that he will suffer significant prejudice and will not be able to have a fair trial due to the delay. The application for an extension of time is refused. The amended notice of motion is dismissed. The plaintiff has requested that the issue of costs be reserved for argument. 14 The court orders: (1) Leave to grant the plaintiff an extension of time in which to commence proceedings for alleged medical negligence from 1980 to 1996 is refused. (2) The amended notice of motion is dismissed. (3) Costs are reserved. ********** Last Modified: 07/31/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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