New South Wales Supreme Court CITATION : Sherry v Australasian Conference Association Ltd & Ors [2001] NSWSC 814 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20437/00 HEARING DATE(S) : 31 August 2001 JUDGMENT DATE : 20 September 2001 Ann Elizabeth Sherry Australasian Conference Association Ltd t/a Sydney Adventist Hospital PARTIES : David Marshman Ross Wilson Shaun Walsh JUDGMENT OF : Sperling J at 1 COUNSEL : Mr D K Jordan for the Plaintiff Mr J Downing for the First Defendant SOLICITORS : Gray & Perkins Lawyers for the Plaintiff Ebsworth & Ebsworth Lawyers for the First Defendant CATCHWORDS : N/A DECISION : (1) The first defendant to answer Interrogatories 3 and 9 of the plaintiff's interrogatories within 28 days from today's date, but not as to the "CCU"; (2) The first defendant to file and serve a further affidavit within 28 days; (3) Stay action of the subpoena issued by the plaintiff to the first defendant dated 5 July 2001 until further order; (4) Liberty to apply on 2 days notice; (5) No order as to costs in relation to the plaintiff's and first defendant's notice of motion. - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES Common Law Division Professional Negligence List Thu rsday, 20 September 2001 Sperling J 20437/00 A E Sherry v Australasian Conference Association Ltd & Ors Judgment 1 HIS HONOUR: These proceedings are brought for the benefit of the family of Timothy Sherry who died at the first defendant's hospital on 15 August 1997 following a surgical procedure on 13 August 1997. That was a bypass graft of the left anterior descending artery of the heart by left thoracotomy approach. The second defendant was the surgeon. The third and fourth defendants were medical practitioners on the staff of the hospital. 2 The plaintiff's case is that the procedure was relatively new at the time; that the usual procedure involved opening the chest at the mid line, stopping the heart and perfusing the patient by pump; and that the procedure undertaken here involved a left sided incision between the ribs without the heart being stopped or a pump being used. Accordingly, the new procedure was described as being "off pump". 3 Interrogatories have been administered and a subpoena has been issued with a view to obtaining information relating to patient load and the experience of hospital staff relative to the particular of procedure undertaken in this case. The interrogatories in question are addressed to the first defendant, the hospital. They are in the following form: Q3. State how many of the patients in the ICU/CCU were ventilated during the relevant period (Including changes in the numbers of ventilated patients)? Q9. For each shift, how many patients did that staff member have assigned to him or her, and were those other patients (if any) ventilated during the relevant period and if so when? Q26. Prior to 13 August 1997, in how many "off-pump" cardiac surgery cases had the ICU/CCU provided post-operative intensive care? Q27. Of those, how many had the operation performed been a repair to the left anterior descending artery by left thoracotomy approach? 4 The plaintiff does not press the reference to the CCU (Cardiac Care Unit), but does in relation to the ICU (Intensive Care Unit). The relevant period mentioned in interrogatory 3 is the post-operative period 13 to 15 August 1997. 5 Objection is taken on the ground that such information is not relevant to whether there was any actual deficiency in proper care and that the plaintiff is "fishing" for a case that has not been particularised. 6 As to the first of these objections, the information sought is relevant in the undemanding sense of the principles relating to interrogatories and discovery. The plaintiff's case, as particularised, consists of asserted omissions in the management of the deceased following the operation, causing or materially contributing to his death. There is no particularised assertion of excessive patient load or inexperience on the part of hospital staff. However, those considerations are potentially relevant to a finding of particularised omissions by inference or partly by inference. They are also potentially relevant as a riposte to any assertion that omissions relied upon by the plaintiff are consistent with prioritisation in proper hospital practice, or such other explanation as may be advanced in exculpation. If the information were also to provide the plaintiff with an alternative way of putting the plaintiff's case, so be it. That would not be an objection if the information is legitimately sought. 7 Oppression is also raised as an objection. The evidence given in an affidavit sworn by the hospital's solicitor, Ms Haire is that a total of 5 hours work would be required to produce an answer to interrogatories 3 and 9. 8 I do not regard the time required to answer the interrogatories 3 and 9 as being sufficient to refuse the orders that are sought. 9 The subpoena is directed to the first defendant, requiring the production of those documents which would be the source of the information sought by interrogatories 3 and 9. The subpoena was issued after the first defendant refused to answer interrogatories 3 and 9. In concept, it was an alternative way of seeking to obtain the same information. 10 There are complications to do with confidentiality in relation to the documents that are sought. These are not insoluble. However, if an answer to the interrogatories would provide the plaintiff with the information required, the subpoena should be seen as being unnecessarily oppressive. Accordingly, I propose to stay the subpoena until further order. If the plaintiff finds that an answer to interrogatories 3 and 9 is insufficient for the plaintiff's legitimate purposes, an application can be made to lift the stay at future time. I will grant liberty to apply for that purpose. 11 The affidavit evidence is unclear in relation to the time required to answer interrogatories 26 and 27. I direct attention to para 4 of Ms Haire's affidavit sworn on 28 August 2001. A few hours is mentioned there. A figure of 200 hours is also mentioned. Depending on how the paragraph is read, a few hours would yield an insufficiently reliable answer to interrogatories 26 and 27 and 200 hours is required for a reliable answer. Alternatively, it could mean that only a few hours is required for a reliable answer to interrogatory 26, but 200 hours for a reliable answer to interrogatory 27. 12 Cross-examination of Ms Haire brought out the possibility of reducing the 200 hour estimate, in particular, by utilising the hospital's midnight census data and by enquiring of the cardio-vascular surgeons accredited to the hospital when "off-pump" procedures of the relevant kind were first carried out at the hospital. To what extent that might reduce the time required, if at all, is not known. 13 Weighing up the potential relevance of the information against the burden that answering would place on the hospital, I would allow interrogatory 26 if only a few hours work is required to answer it. I would not allow either interrogatory 26 or 27 respectively if anything like 200 hours is required to answer those questions respectively. 14 A further affidavit should be filed on behalf of the hospital clarifying what was intended to be said in para 4 of Ms Haire's affidavit of 28 August 2001. 15 The affidavit should also provide a re-assessment of the 200 hours estimate given in Ms Haire's affidavit, having regard to the suggestions made in cross-examination of Ms Haire. The transcript will need to be examined for the detail of the suggestions. 16 If, on receipt of the further affidavit, the plaintiff wishes to press for answers to Interrogatories 26 and 27, the notice of motion may be relisted before me by arrangement with my associate, and I will treat it as part heard in that respect. I will grant liberty to apply for that purpose also. 17 As to costs, I should make an order at this stage on the basis that there might be no more action on either notice of motion. As things stand, the plaintiff has succeeded in part only on its motion to compel answers to interrogatories and the defendant has succeeded in halting action on the plaintiff's subpoena. In these circumstances, I make no order as to costs, with the intent that each party will pay its own costs of the motions. That decision can be revised if further action is taken on either notice of motion. 18 I make the following orders: (1) The first defendant to answer Interrogatories 3 and 9 of the plaintiff's interrogatories within 28 days from today's date, but not as to the "CCU". (2) The first defendant to file and serve a further affidavit within 28 days. (3) Stay action of the subpoena issued by the plaintiff to the first defendant dated 5 July 2001 until further order. (4) Liberty to apply on 2 days notice. (5) No order as to costs in relation to the plaintiff's and first defendant's notice of motion. -o0o- Last Modified: 09/21/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.