Booth v Di Francesco [2002] NSWSC 154

New South Wales Supreme Court

CITATION : Booth v Di Francesco [2002] NSWSC 154 CURRENT JURISDICTION: Common Law Division Professional Negligence List FILE NUMBER(S) : SC 20152/00 HEARING DATE(S) : 1 February 2002 JUDGMENT DATE : 8 February 2002

PARTIES : Margaret Booth (Plaintiff) Anthony Di Francesco (Defendant) JUDGMENT OF : Studdert J

COUNSEL : M.B. Williams (Plaintiff) J. Chandra (Defendant) SOLICITORS : Charlton Shearman (Plaintiff) Blake Dawson Waldron (Defendant) CATCHWORDS : Practice and procedure - professional negligence claim - application for appointment of conference between experts - relevant considerations - Supreme Court Rules, Pt 36 r 13CA. DECISION : Notice of motion dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

STUDDERT J

Friday 8 February 2002

20152/00 MARGARET BOOTH v ANTHONY DI FRANCESCO (DR) JUDGMENT (mOTION FOR APPOINTMENT OF JOINT CONFERENCE OF EXPERTS) 1 HIS HONOUR: The defendant in this cause has applied on notice of motion for an order pursuant to Pt 36 r 13CA for a conference of four medical experts who have given reports in the matter. The plaintiff has opposed the application. 2 It is the plaintiff's case that she came under the care of the defendant, a gynaecological surgeon, in April 1994 and that on 21 July 1994 the defendant performed surgery upon her in the nature of an abdominal hysterectomy with bilateral salpingo-oophorectomy. It is the plaintiff's case that the removal of the uterus, ovaries and fallopian tubes was unnecessary and that the surgery was, in any event, carried out carelessly, with tearing of the bladder. The defendant denies negligence, and it is defendant's case that the surgery was appropriate and was properly performed. 3 In the statement of claim, and these allegations remain part of the plaintiff's claim in the form of the amended pleading to which the Court's attention was drawn on this occasion, it is alleged, inter alia, that there was negligence in advising the plaintiff to undergo the surgery, in the performance of the surgery, in performing it so as not to damage other organs, in tearing the bladder and then in failing adequately to repair it. It is also alleged that there was a failure to test the patency of the bladder before the plaintiff's abdominal cavity was closed. It is the existence of these allegations in the plaintiff's case to which Ms Chandra drew attention on behalf of the defendant in the course of argument. 4 In the affidavit in support of the motion, Ms Chandra conveniently summarised the opinions expressed by each of the four experts who it is contemplated would attend any joint meeting if the Court now makes the order sought. No objection was taken to the summary of the opinions contained in paras 12, 15, 18 and 20 of the affidavit of Ms Chandra and it is convenient to draw upon these paragraphs now to record the essential conclusions of the doctors named. 5 The experts qualified by the plaintiff are Dr Korda and Dr Lyneham. 6 Dr Korda reached the conclusions expressed in para 12 of Ms Chandra's affidavit as follows: "(a) there were no obvious indications for the performance of the hysterectomy on 21 July 1994;