New South Wales Supreme Court CITATION : Tabet bht Sheiban v Mansour & Ors [2006] NSWSC 754 HEARING DATE(S) : 19-26 July 2006 JUDGMENT DATE : 27 July 2006 JURISDICTION : Common Law Division Professional Negligence List JUDGMENT OF : Studdert J DECISION : Leave granted to the plaintiff to adduce expert evidence inconsistent with the content of the joint experts' report. It is a condition of the grant of leave that the plaintiff calls Dr Hopkins to give evidence. All questions of costs reserved arising from the grant of leave. LEGISLATION CITED : Supreme Court Rules Uniform Civil Procedure Rules Boardman v South Eastern Sydney Area Health Service [2001] NSWSC 930 Booth v Di Francesco [2002] NSWSC 154 Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738 CASES CITED : Habelrih v Szirt [2004] NSWSC 54 Queensland v J & L Holdings Pty Limited (1996-97) 189 CLR 146 Spasovic v Sydney Adventist Hospital [2002] NSWSC 164 Tabet by her tutor Sheiban v Mansour [2005] NSWSC 908 Reema Tabet by her tutor Ghassan Sheiban (Plaintiff) PARTIES : Dr Albert Mansour (1st Defendant) Dr Maurice Gett (2nd Defendant) FILE NUMBER(S) : SC 20239/01 COUNSEL : G.B. Hall QC/Dr R. Pincus (Plaintiff) M.T. McCulloch SC/T. Berberian (Defendants) SOLICITORS : Miller Goddard Solicitors (Plaintiff) Blake Dawson Waldron (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST STUDDERT J Thursday 27 July 2006 20239/01 REEMA TABET by her tutor GHASSAN SHEIBAN v DR ALBERT MANSOUR & ANOR JUDGMENT 1 HIS HONOUR: After Dr Kohn had completed his evidence on Monday last, Mr McCulloch sought to tender a joint experts' report. Mr Hall took objection to the tender and the important issues to which the tender gives rise were the subject of extensive submissions by counsel. Having heard counsel, I reserved my decision in order to consider the relevant evidence. 2 On 8 August 2002 I made an order pursuant to Pt 36 r 13CA of the former Supreme Court Rules for a number of experts to confer on certain specified matters. The experts were directed to endeavour to reach agreement in relation to certain questions and to provide the court with a joint report specifying the matters agreed and the matters not agreed, and the reason or reasons for any non-agreement. 3 The experts conferred on 8 November 2002 and in due course they furnished a report bearing that date. The various experts, Professor Robert Jones, Dr Ian Hopkins, Dr Ian Johnston and Associate Professor John Watson were signatories to the report. They found themselves able to agree upon the answers to the questions, in turn agreed upon, which were submitted for their consideration: "1. Assuming that in Reema Tabet's case: · there had been no delay in diagnosis of the medulloblastoma between 28 December 1990 and 14 January 1991; and · no lumbar puncture performed on 13 January 1991; and · conventional treatment given by excision of the medulloblastoma, chemotherapy and radiotherapy, would you consider it likely or unlikely that Reema would [have] suffered any or all of the following disabilities: (a) Spastic ataxia, balance and coordination impairment: Likely. (b) Impaired vision: After discussion about the uncertainties of mechanisms, on balance of probabilities we agreed this was likely. (c) Impaired memory; Likely. (d) Dysarthria: Likely. (e) Impaired intellectual ability; Likely. (f) Contractures; Likely. (g) Epilepsy; Likely. (h) Swallowing problems; and Likely. (i) Loss of bladder and bowel control? Likely. 2. Did any delay in diagnosis and treatment of Reema's medulloblastoma between 28 December 1990 and 14 January 1991 cause any of the following disabilities: (a) Spastic ataxia, balance and coordination impairment: No. (b) Impaired vision: We do not think it is possible to understand fully the mechanisms of the impaired vision. Although it is likely that her optic atrophy is due to local tumour deposits and/or radiotherapy, the period(s) of raised intracranial pressure may have contributed. Radiotherapy per se would not have caused the early visual impairment. (c) Impaired memory; No. (d) Dysarthria: No. (e) Impaired intellectual ability; No. (f) Contractures; No. (g) Epilepsy; No. (h) Swallowing problems; No. (i) Loss of bladder and bowel control? No. 3. If your answer to question 2 is 'yes', please indicate A. which disability or disabilities; and B state what percentage of this particular disability would probably have happened even if there had been no delay in diagnosis and treatment. A. Visual impairment. B. Drs Hopkins and Johnston were unable to quantitate. Professor Jones and Associate Professor Watson thought 10% and 20% respectively. 4. Would your answer to question 3B be different if at the operation to remove Reema's medulloblastoma on 16 January 1991 the operation achieved: (a) subtotal removal of the tumour as described in the operation report of 16 January 1991; or (b) only a very partial removal of an extensive tumour? If the answer is 'yes', what would be your answer to 3B in each case? (a) No. (b) No. For both answers, we all agreed that a lesser removal of tumour may have led to a less favourable response to subsequent treatment with radiotherapy and chemotherapy. 5. Did the lumbar puncture on 13 January 1991 cause or contribute to cause any of the following disabilities: (a) Spastic ataxia, balance and coordination impairment: No. (b) Impaired vision: No (c) Impaired memory; No. (d) Dysarthria: No. (e) Impaired intellectual ability; No. (f) Contractures; No. (g) Epilepsy; No. (h) Swallowing problems; and No. (i) Loss of bladder and bowel control? No. please indicate A. which disability or disabilities; and B. state what percentage of this particular disability would probably have happened even if there had been no lumbar puncture 13 January A. No answer necessary. B. No answer necessary. 6. Would your answer to question 5B be different if at the operation to remove Reema's medulloblastoma on 16 January 1991 the operation achieved: (a) subtotal removal of the tumour as described in the operation report of 16 January 1991; or (b) only a very partial removal of an extensive tumour? If the answer is 'yes', what would be your answer to 5B in each case? (a) Not applicable. (b) Not applicable. 7. Did the lumbar puncture on 13 January 1991 cause or contribute to the plaintiff 'coning'? No. Dr Hopkins and Associate Professor Watson, having seen Dr Johnston's report about the extent and distribution of the tumour in the subarachnoid space and having reviewed the scans available at today's conference, no longer consider the lumbar puncture to have been a significant factor contributing to the 'coning'. 8. Would Reema's employability and/or need for care have been affected: (a) If diagnosis of the cerebral tumour had occurred between 28 December 1990 and 14 January 1991. No. (b) If a lumbar puncture had not been performed on 13 January 1991? No. 9. If your answer to question 8 is 'yes', please indicate how Reema's employability and/or need for care would have been affected. Not applicable." 4 The tender of the report calls for consideration of the provisions of Pt 36 r 13CA of the Rules. These have now been replaced by r 31.25 of the Uniform Civil Procedure Rules which are to the like effect, although not in precisely the same form. Since the order was made in August 2002 under the former Supreme Court Rules, I will refer to the provisions of that rule for present purposes. However, nothing turns on the changed form in r 31.25 of the UCPR, and I would come to the like conclusion here by considering and applying that rule. 5 Part 36 r 13CA provided as follows: "(1) The Court may, on application by a party or of its own motion, direct expert witnesses to: (a) confer and may specify the matters on which they are to confer, (b) endeavour to reach agreement on outstanding matters, and (c) provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement. (2) An expert so directed may apply to the Court for further directions. (3) The Court may direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively. (4) The content of the conference between the expert witnesses shall not be referred to at the hearing or trial unless the parties affected agree. (5) The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the Court. (6) Where, pursuant to this rule, expert witnesses have conferred and have provided a joint report agreeing on any matters, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed." 6 Mr McCulloch sought to tender the report relying upon Pt 36 r 13CA(5). He submitted that he was entitled to tender the report "as evidence of the matter agreed". 7 In short, Mr McCulloch submitted that this conference was appointed by consent to require the experts attending it, with the consent of the parties, to answer questions, the form of which the parties agreed upon. It was submitted that in these circumstances the parties could be said to have agreed to be bound in accordance with sub-rule (5) and that, hence, the joint report could be tendered. 8 I do not consider that the rule is to be so construed. Part 36 r 13CA(4) provides that the content of the conference shall not be referred to at the hearing unless the parties affected agree. It seems to me that any agreement has to relate to any reference at the hearing. Sub-rule (5) refers to an agreement on a particular matter but there is no evidence here that the parties, when appointing the joint conference or at any subsequent time, agreed to be bound to the tender of the report which was provided by the experts. Absent any such agreement, it seems to me that the joint report is not admissible "as evidence of…matter agreed". 9 It does not follow from this that the joint report of the experts is of no significance. On the contrary, Pt 36 r 13CA(6) demands consideration. The experts have conferred and have provided a joint report, agreeing on the various matters addressed in the report. Hence, the plaintiff, being plainly "affected" by the matters addressed in the report, may not adduce expert evidence inconsistent with those matters agreed upon without the leave of the Court. 10 The provisions of Pt 36 r 13CA, as now effectively restated in r 31.25 of the UCPR, have an important role to play in matters in the Professional Negligence List. The objectives of ordering joint conferences of expert witnesses were stated in Practice Note 121 and are restated in Practice Note SC Gen 11 as including: § "The just, quick and cost effective disposal of the proceedings; § The identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference…; § The consequential shortening of the trial and enhanced prospects of settlement; § Apprising the court of the issues for determination; § Binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross examination of a participating expert called at the trial who seeks to depart from what was agreed.); and § Avoiding or reducing the need for experts to attend court to give evidence." 11 It seems to me that leave of the court to adduce expert evidence inconsistent with an expert report such as was here obtained should not be granted lightly and, indeed, a grant of leave should be the exception rather than the rule. A party against whose interests questions are answered in a joint report pursuant to the rule ought not to expect that he can later search elsewhere for an expert to support him and then as a matter of course be granted leave to tender favourable evidence from that expert at a subsequent trial. The court must recognise the public interest in the efficient administration of justice: see Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738, and in this context the objectives of the rule presently under consideration and as set out above have particular relevance. That said of course, regard must be paid as a paramount consideration to what the justice of the particular case requires: see Queensland v J & L Holdings Pty Limited (1996-1997) 189 CLR 146 at 155. 12 In the present case, after the joint report was obtained the solicitors for the plaintiff sought consent from the defendants to an amendment of the statement of claim so as to raise a medical issue bearing upon the nature of the plaintiff's treatment and how it would have been different had the medulloblastoma eventually detected been diagnosed in late December 1990 or early January 1991. In the proposed amended statement of claim the amendments included the following: "33. If Reema's medulloblastoma had been diagnosed prior to her discharge from hospital on 31 December 1990 whilst she was under the care of Dr Mansour, or during her admission to hospital but before the lumbar puncture on 13 January 1991 whilst she was under the care of Dr Gett, the medulloblastoma would not have spread to the point it did as demonstrated on the MRI performed on 22 February 1991. 34. Had the medulloblastoma been diagnosed in late December or early January as descried above, Reema's treatment would have been different. Particulars (a) Chemotherapy would have been avoided; and (b) Radiotherapy would have been administered following the debulking of the tumour and delivered at a total dose of 36 Gray in 28 fractions without anaesthetic rather than in 50.4 Gray in 28 fractions under general anaesthetic." 13 When consent to the proposed amendment to the statement of claim was not forthcoming, the plaintiff made application to this court for leave to amend, and that application was heard before Hall J on 5 July 2005. On 9 September 2005 his Honour granted leave to the plaintiff to amend the statement of claim so as to plead the claim in its present form: see Tabet by her tutor Sheiban v Mansour [2005] NSWSC 908. 14 In the course of his judgment Hall J said: "37 The joint expert report reveals that there was no question and answer specifically directed to the point which the plaintiff now wishes to pursue by way of amendment to the Statement of Claim, the new contention . It may well be that the experts in fact had a view on the question of the spread of seeding of the metastasis. It may even be that that view was considered when providing the answers to the questions posed. However, that matter was not one upon which the experts were specifically requested or required to consider and express an opinion upon. It was one, as earlier discussed, which depended, at least, in part, upon whether there was evidence that seeding had taken place at a time that is consistent with and supported the new contention . A dispute as to that significant factual question is one that is unlikely to render itself as suitable to resolution other than by conventional trial processes. 38 It is apparent from Ms. Walsh's affidavit evidence that the possible significance of the issue of delay in diagnosis in terms of the issue of seeding and the nature of the radiotherapy treatment and the damage said to have been caused by it had not been identified at the time that consent was given to the appointment of a joint conference of experts. At least they had not been identified at that time by the plaintiff's representatives. 39 On this application, I am of the opinion that:- • the plaintiff has identified a liability issue in the proposed Amended Statement of Claim ( "the new contention" ); • that issue is one which depends upon the establishment of a medical fact (the existence and timing of seeding ); • that issue was not specifically an issue or matter posed by way of a question to the joint conference of experts; • there was no statement of agreed fact or assumption as to the existence or otherwise of the matters concerning seeding as discussed above. 40 There is a real question as to whether the joint expert report can or should itself operate or be allowed to operate as a restricting factor on the discretionary power in the Court to grant an amendment to pleadings. As I proceed to examine below, in medical negligence litigation where there is an important contested medical fact in issue, it will often be the case that the experts' conference process under the Rules will not be appropriate and, generally speaking, will not be ordered. Where there is somewhat belatedly identified an important matter of medical fact which is sought to be introduced by amendment subsequent to a joint expert report, should the report nonetheless have primacy so as to exclude the fact from being litigated?" 15 His Honour went on to refer to cases in which contested applications for the appointment of joint conferences were considered and in which the principles to be applied were considered: see Boardman v South Eastern Sydney Area Health Service [2001] NSWSC 930; Booth v Di Francesco [2002] NSWSC 154; Spasovic v Sydney Adventist Hospital [2002] NSWSC 164; and Habelrih v Szirt [2004] NSWSC 54. 16 His Honour went on to determine that the experts had not considered at their meeting the contention sought to be raised in the amended pleadings and concluded that the joint experts' report and its content should not stand in the way of the amendment to the pleading sought and granted. 17 It is to be noted that the amended pleading concerning which leave was granted asserted as a particular of damage suffered "coning due to lumbar puncture on 13 January 1991" (see para 36(b)). The joint report, of course, reached a contrary conclusion and the above particular cannot be pursued in this Court without leave. Indeed, this is the matter at the very heart of the present application. The plaintiff now has, from more than one source, expert evidence that there was coning due to the lumbar puncture and that this caused brain damage. The plaintiff wishes to introduce such evidence, and this is at the centre of the leave application. 18 One of the orders sought on the motion considered by Hall J was that leave be granted to rely upon certain expert reports addressing the coning issue. His Honour did not deal with that application but stood it over to a date to be fixed. No step was taken to fix a date and the issue, regrettably, has remained unresolved until the present time. 19 In resisting the leave application, Mr McCulloch drew attention to the policy reasons behind the relevant rule, and these I have identified above. He submitted that there was a need for the Court to control its own process and no reason had been shown as to why the plaintiff should be entitled to call in aid evidence other than that relied upon from Dr Hopkins at the time he was asked to attend the expert conference. He submitted that the Court should have regard, not only to the purpose of the conference that was held, achieving as it did a narrowing of the issues and a shortening of the likely trial time, but also to the consideration that if leave is granted the time to be occupied by this hearing, with its attendant costs, will be considerably increased. Mr McCulloch further referred to the costs incurred concerning the conference, and I accept in this regard the unchallenged evidence of Ms Sullivan in her affidavit of 25 July 2006 that the defendants' costs alone associated with the expert conference were approximately $22,000-23,000. 20 For his part, Mr Hall submitted that the conference process was flawed by reason of the manner in which issues were presented for consideration by the experts and that the questions were so framed as to preclude exposure of the reasoning process behind the answers. As to this, I draw attention at once to Practice Note 121 para 6, with which I am satisfied there was here compliance. Paragraph 6 requires that questions be framed in such a way as to be answered, if possible, with a "yes" or "no" answer or, if not, then with a very brief response. 21 I do not accept the submission that the process pursuant to which the experts here conferred was a flawed process. 22 Mr Hall submitted that the panel of experts lacked balance because the plaintiff had no neurological expert on it. The constitution of the panel was a matter as to which the plaintiff, through her experienced solicitor, had input, and I am not persuaded that there is substance in this submission. 23 Mr Hall further submitted as to the deliberations of the panel that it seems that Professor Jones brought with him to the joint appointment x-ray films from the hospital. That appears to be so, and Ms Walsh, who gave evidence on this application, gave evidence that, as the solicitor for the plaintiff involved in this expert conference, she was alert to, and agreed to, those films being considered by the doctors. It seems, however, that the films have since been mislaid, and Mr Hall submitted that it was unfair to the plaintiff to be confined to the report, influenced as it was by x-ray films that the plaintiff had no opportunity of considering. 24 Mr Hall submitted further that it would be unjust to the plaintiff if the plaintiff was deprived of the opportunity now of having the Court consider the further expert material that has become available to her on this coning issue. The plaintiff is a person who, it is submitted, suffers from very grave disabilities and that the Court should take this into account in assessing the issue now to be determined. 25 I accept that it is a relevant matter that the plaintiff is suffering from grave disabilities, but it is to be observed, unhappily, that this is the case concerning many plaintiffs in this Court in whose cases the operation of this rule is enlivened. 26 Finally, Mr Hall submitted that the plaintiff, having been allowed by reason of the decision of Hall J to amend her statement of claim and to raise what his Honour there referred to as "the new contention", experts have been qualified and will be giving evidence as to that new contention. He submitted it would be unreasonable and unsatisfactory if those witnesses who considered that there had been coning associated with the lumbar puncture were confined to ignore that perceived contributor to the plaintiff's brain damage when addressing the issue as to what brain damage was considered to have been referable to any different treatment brought about by the delay in detecting the tumour. Mr Hall submitted that it would be better and fairer if the opinions of these experts could be considered according to the basis upon which those opinions were formed rather than on the basis of assuming, contrary to the opinions in fact held by them, that there had been no coning and brain damage associated with the lumbar puncture. 27 I have considered the medical evidence, and in particular that concerning which leave is sought, with the above submissions very much in mind. 28 A matter relevant to be considered in the exercise of my discretion is whether the plaintiff has now available medical evidence to support the assertion that the lumbar puncture ought not to have been undertaken when it was and that its performance was causative of harm. If there was now no such evidence available, then the grant of leave would be futile and plainly unjustified. 29 There is available to the plaintiff expert opinion supporting the issues that the plaintiff wishes to pursue if leave is granted. Dr Berry, in his report of 28 October 2003, declined to comment concerning the role of the lumbar puncture and the neurological deterioration that followed, and Dr Knight, paediatrician qualified by the plaintiff, does not, in his reports of 22 April 2002 and 13 June 2006, express the opinion that the lumbar puncture caused deterioration. However, there is support for the issues that the plaintiff seeks leave to advance from Dr George Williams, consultant paediatrician, particularly in his report of 26 May 2006. There is further support from Dr Wallace in his report of 25 November 2005 and from Dr Lindsay Smith, neurologist, in his report of 23 October 2005. Finally, added support is afforded by Dr Klug, neurosurgeon, in his reports of 21 January 2004 and 11 February 2005. 30 That the plaintiff now has expert evidence is not determinative of the issue as to whether there should be a grant of leave, but it is a relevant consideration. 31 Of particular significance on this application is that as a consequence of the decision of Hall J granting leave to amend the statement of claim, the medical issues in this case have broadened from those perceived to arise when the joint conference of experts took place. The amendment introduced the further issues as to whether the timing of radiotherapy and the dosage here employed were significantly different from what would have been necessary had an early diagnosis been made, and whether, as a result, the harm suffered was greater than it otherwise would have been. Interwoven with this is a consideration of what the plaintiff's condition would have been immediately prior to the commencement of treatment at the differing points of time, that is when the treatment was commenced and when it ought to have been commenced. Whether or not there was coning, and if so why and when, is a matter of significance, and I consider there is some force in Mr Hall's submission that experts to be called by the plaintiff addressing the issues arising under the amended statement of claim ought not to be required to do so proceeding on an assumption that the lumbar puncture caused no coning and associated damage when that is contrary to opinions in fact held. 32 Of course, if leave is granted, the defendants are deprived of the certainty of the outcome on the issues addressed in the experts' report of August 2002. However, the authors of that report are available to give evidence. 33 The medical issues in this case are very complex, but the conclusion I have reached after close consideration of that evidence to which my attention has been directed, is that I should grant leave to the plaintiff to introduce evidence inconsistent with the content of the joint report. I have concluded that there are exceptional circumstances arising by reason of the nature and complexity of the medical issues which now arise that warrant the grant of leave, and that to do justice between the parties such grant is necessary. I propose to make it a condition of the grant of leave that the plaintiff calls Dr Hopkins, who attended the joint conference on behalf of the plaintiff. The defendants should have the opportunity of cross examining that witness. 34 Accordingly, I grant leave to the plaintiff to adduce expert evidence inconsistent with the content of the joint experts' report concerning the lumbar puncture on 13 January 1991 and whether it caused or contributed to coning. 35 It is a condition of the grant of leave that the plaintiff calls Dr Hopkins to give evidence. I reserve all questions of costs arising from the grant of leave. It has to be recognised that as a consequence of the grant, justice may require a special order concerning the costs incurred in relation to the joint conference, and in relation to time that may be occupied now at this trial in addressing issues arising pursuant to the grant of leave. These questions are best to be addressed after judgment has been delivered following the conclusion of the hearing, when the parties will be afforded the opportunity of presenting submissions as to costs. ********** 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.