New South Wales Supreme Court CITATION : Brown v Sydney Eye Hospital & Anor [2004] NSWSC 1112 HEARING DATE(S) : 3 September 2004 JUDGMENT DATE : 22 November 2004 JURISDICTION: Common Law - Professional Negligence List JUDGMENT OF : Master Harrison DECISION : (1) The first defendant is to answer interrogatories 5, 6, 7, 10, 12 and 15 as amended within 21 days; (2) The second defendant is to answer interrogatories 1, 16, 17, 26 and 27 within 21 days; (3) The balance of the notice of motion is dismissed; (4) Costs of the motion are costs in the cause. CATCHWORDS : Interrogatories LEGISLATION CITED : Supreme Court Rules 1970 (NSW) Part 24 rr 5 & 6 CASES CITED : American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Limited (No 2) [1965] NSWR 193 Yamazak v Mustaca & Ors [1999] NSWSC 864 Patrica Brown (Plaintiff) PARTIES : South Eastern Sydney Area Health Service t/as Sydney Eye Hospital (First Defendant) Dr Woodey (Second Defendant) FILE NUMBER(S) : SC 20179/2003 Mr R Ingram (Plaintiff) COUNSEL : Mr G Gemmell (First Defendant) Mr S Kalfas (Second Defendant) Taylor & Scott (Plaintiff) SOLICITORS : Frances Allpress (First Defendant) TressCox (Second Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST MASTER HARRISON MONDAY, 22 NOVEMBER 2004 20179/2003 - PATRICIA BROWN v SOUTH EASTERN SYDNEY AREA HEALTH SERVICE t/as SYDNEY EYE HOSPITAL & ANOR JUDGMENT ( Interrogatories ) 1 MASTER: By notice of motion filed 16 June 2004 the plaintiff seeks orders pursuant to Part 24 r 5 of the Supreme Court Rules 1970 (NSW) (SCR) that the first and second defendants serve statements pursuant to Part 24 r 6 of the SCR on the plaintiff providing answers to interrogatories as respectively set out in Annexure 'A' and Annexure 'B' of the affidavit of Lisa Powell sworn 16 June 2004. The plaintiff relied on the affidavit of Lisa Powell sworn 16 June 2004. The first defendant relied on the affidavit of Leanne Margaret Irwin sworn 2 September 2004. The second defendant relied on the affidavit of Dominique Egan sworn 25 August 2004. The plaintiff is Patricia Brown. The first defendant is the South Eastern Sydney Area Health Service t/as the Sydney Eye Hospital. The second defendant is Dr Woodey. The plaintiff relied on a proposed second amended statement of claim (2ASC) (Ex A). The second defendant consents to the filing of the 2ASC. Background 2 On 3 November 1999 the plaintiff underwent an eye operation at the Sydney Eye Hospital to excise a melanoma from the iris of her left eye. The second defendant was a consultant anaesthetist employed by the first defendant and performed an anaesthetic during the operation by means of inserting a needle known as a right radial arterial cannula into the plaintiff's right radial artery for the purposes of monitoring the plaintiff's arterial pressure. It is not the eye operation that is the subject of this claim, rather it concerns the insertion of a cannula into her right hand. Following the operative procedure the plaintiff experienced and complained of extreme pain in her right arm and noticed swelling and bruising in the lower two-thirds of her forearm including her hand. Subsequently, a large haematoma developed in the plaintiff's right forearm and wrist and has deteriorated to an extent where the plaintiff experiences chronic pain and disuse of her right hand, wrist and forearm. The plaintiff has been diagnosed as suffering from complex regional pain syndrome affecting the right upper limb. The plaintiff is right hand dominant. 3 The plaintiff pleads a number of causes of action including the failure to: obtain informed consent from the plaintiff as to the insertion of a needle in the form of a right radial arterial cannulation; failure to advise the plaintiff as to the risks involved in such a procedure; failure to ensure that the second defendant properly or adequately carried out the procedure; failure to take any proper, effective or timely measures to correct or remedy the procedure. 4 The plaintiff has served expert medical reports covering these issues. The experts have not requested further information in order to complete their reports. The hospital notes are available. The plaintiff gives an account in the immediate days post operation that she experienced moderate to severe pain in the right forearm and wrist and noticed bruising. There is no reference to the plaintiff's complaint of pain in the notes made by nursing staff until a later date. The plaintiff has detailed the procedures that she says should have been followed and provided details where they were not. Interrogatories 5 In modern litigation, the test as to interrogatories remains that the party seeking to interrogate is required to satisfy the court that interrogatories are, after taking into account the interests of the parties, reasonably necessary for the fair disposal of the matter. The court may make such an order to prevent unnecessary interrogatories or unnecessary answers to interrogatories. Normally interrogatories are not available in personal injury matters. The defendants have already answered one set of interrogatories administered by the plaintiff's former solicitors. Part 24 r 5 of the SCR provides: "(1) The Court may, at any stage of any proceedings, order any party to serve on any other party (whether the interrogating party or not): (a) a statement in accordance with rule 6 in answer to interrogatories specified or referred to in the order relating to any matter in question in the proceedings, or (b) a statement as mentioned in paragraph (a) verified by affidavit. (2) The Court shall not make an order under subrule (1) unless satisfied that the order is necessary at the time when the order is made." 6 The interrogatories for which answers are sought appear within Annexures 'A' and 'B' to the affidavit of Lisa Powell sworn 16 June 2004. The interrogatories comprise 72 questions in total (Annexure A: 41 questions and Annexure B: 31 questions). The second defendant agreed to answer interrogatories 1, 16, 17, 26 and 27. 7 As was stated in American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Limited (No 2) [1965] NSWR 193, the first principle is: "… it is not permissible to interrogate as to matters beyond the issues as disclosed by the pleadings and the particulars, but interrogatories may be directed not only to matters directly in issue but also to facts which are relevant to some question in issue." Interrogatories addressed to first defendant 8 There are extensive particulars of negligence alleged against the first defendant. They are too numerous to reproduce here. The first defendant agreed to answer interrogatories 5, 6, 7, 10, 12, 14 and 15 with the amendment that where the word "observation" appears, it should read "knowledge, information and belief". 9 The operating nursing room care document is in existence and notes that the anesthetic preparation was in a cannula. Interrogatories 1-4 refer to protocols or guidelines in relation to the insertion of arterial cannulas as at 3 November 1999. It is not necessary for the first defendant to answer interrogatories in relation to guidelines or protocols. These interrogatories are not directed to an issue in this case (see Yamazaki v Mustaca & Ors [1999] NSWSC 864). 10 Interrogatories 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 follow on from the previous questions based on the presumption that the right radial cannula was removed and relate to the role, awareness and actions of the nurses in the recovery ward at that time. The operating care room notes do not record any details of the handover procedure. In relation to the handover between Dr Woodey and the recovery room staff, Dr Peter Conrad (report 4/9/01) indicated that this is usually done verbally in the recovery room by indicating that an arterial cannula had been used and instructing that the wrist should have been appropriately bandaged and the arm elevated. Dr Conrad stated that it may have been appropriate for the anesthetic nurse, who would most certainly have been aware of the insertion and removal of the arterial cannula, to have followed up the after treatment with the recovery nursing staff as well as Dr Woodey. It is my view that these interrogatories are not necessary. Interrogatories 30, 31, 32 and 33 relate to the post operation transfer of the plaintiff from the recovery ward to the hospital ward and whether the plaintiff complained to the first defendant of pain in, or bruising of her right wrist. The plaintiff has prepared a detailed document that gives her version of conversations between herself and the doctors and medical staff from the immediate post operative period onwards (see D2/1, p 7). Interrogatories 34, 35, 36 and 37 relate to the period of four days following the plaintiff's return from the operating theatre to the ward on 3 November 1999, the knowledge held as to the insertion of a right radial artery cannula and the words imparted by the nursing staff caring for the plaintiff. Interrogatories 38, 39, 40 and 41 address whether the first defendant put in place a system for monitoring the plaintiff's right arm, the site where the radial artery cannula was removed and when such a system was implemented. It is my view that all of these interrogatories are unnecessary. Interrogatories addressed to second defendant 11 The second defendant has agreed to answer interrogatories numbered 1, 16, 17, 26 and 27. The second defendant has already answered interrogatories that were administered by the plaintiff's notice dated 12 November 2002. Relevantly, Dr Woodey when asked in these earlier interrogatories on whose instructions was the cannula removed, answered "The nursing [staff] present in the operating theatre assisted with me to insert and remove the cannula. I would have told the nursing staff in the recovery ward that a right arterial line had been removed from the plaintiff's right arm and her blood pressure was now stable." 12 Interrogatories 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 18, 20, 21, 24 and 25 are all based upon there being an affirmative answer to the first question, that being that second defendant carried out the insertion of a right radial artery cannula on the plaintiff on 3 November 1999. As referred to above Dr Woodey has already answered that he and the nursing [staff] inserted the cannula. The interrogatories address such issues as the risks involved, the method used, and the purpose of the procedure. Additionally, the interrogatories query whether the second defendant knew or asked the plaintiff which hand was her dominant hand, whether the second defendant observed the cannula being removed, the number of times the second defendant punctured the plaintiff's right radial artery and skin before inserting the right radial artery cannula and the whether the second defendant gave instructions and the details of those instructions to nursing staff to institute observations of the arterial puncture site or right limb. 13 Interrogatories 8 and 9 are based on the assumption that the right radial artery cannula was inserted for the purpose of monitoring the plaintiff's blood pressure and question whether the plaintiff was advised on any other option for monitoring her blood pressure and whether there were any other options available for that purpose. Interrogatories 14 and 15 are based upon the assumption that the right radial artery cannula was removed and query the circumstances surrounding that removal in relation to the observations and actions of the nursing staff. Interrogatories 22 and 23 relate to the second defendant's knowledge and the extent of such knowledge as at 3 November 1999 in respect of the increased risks of bleeding associated with multiple punctures of the radial artery. Finally, interrogatories 28, 29, 30 and 31 query the second defendant's knowledge and extent of such knowledge as at 3 November 1999 as to protocols or guidelines in respect of insertion of radial artery cannulas and the observation or monitoring of patients after the removal of the radial artery cannula. 14 In respect of interrogatories 2, 3, 4, 5, 6 and 8 the second defendant says that as the subject matter can be proven by another readily available means it is unnecessary. Additionally, in respect of interrogatory 5, Dr Little [report dated 26 March 2002] dealt with the appropriateness of the choice of the dominant hand and describes it as uncontroversial. The second defendant contends it is unnecessary to answer interrogatory 7 as the matters raised are answered by interrogatory 10 and are dealt with in the evidence of Drs Little (Annexure 'G' to Egan affidavit) and Rounsefell (Egan affidavit p 54). I agree that interrogatory 9 is unnecessary, as it does not relate to an issue in these proceedings. In respect of interrogatories 10, 11, 20, 21, 22 and 23 the second defendant contends that it is not necessary for the plaintiff to obtain an answer as they are dealt with in the report of Dr Little dated 26 March 2002 at p 2 under the heading 'Summary of Events'. 15 Interrogatories 12, 13, 14, 15, 18 and 19 are repeats of the earlier interrogatories that have already been answered. They refer to the removal of the cannula and whether the nursing staff were advised to institute observations of the wrist or limb matter. In relation to interrogatories 24, 25, 28, 29, 30 and 31, the second defendant submitted that it was not incumbent upon the second defendant to give the instructions and they are therefore unnecessary. As previously stated, I have taken into account that the plaintiff has a very detailed knowledge of conversations that she says occurred. The experts have already provided reports on the information they have given. Some of the interrogatories do not go to matters in issue. 16 After taking into account the interests of each party, I am not satisfied that in order to fairly dispose of the matter it is reasonably necessary for the defendants to answer these interrogatories. 17 The first defendant is to answer interrogatories 5, 6, 7, 10, 12 and 15 as amended within 21 days. The second defendant is to answer interrogatories 1, 16, 17, 26 and 27 within 21 days. 18 Costs are discretionary. In my view the appropriate order for costs are costs be costs in the cause. Orders 19 The court orders that: 20 (1) The first defendant is to answer interrogatories 5, 6, 7, 10, 12 and 15 as amended within 21 days. (2) The second defendant is to answer interrogatories 1, 16, 17, 26 and 27 within 21 days. (3) The balance of the notice of motion is dismissed. (4) Costs of the motion are costs in the cause. ********** Last Modified: 11/29/2004 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.