Greenwood v South Eastern Sydney & Illawarra Area Health Service [2009] NSWSC 1279

New South Wales Supreme Court

CITATION : Greenwood v South Eastern Sydney & Illawarra Area Health Service [2009] NSWSC 1279

HEARING DATE(S) : 23 November 2009

JUDGMENT DATE : 25 November 2009

JUDGMENT OF : Harrison J

DECISION : Application to amend the statement of claim refused.

CATCHWORDS : PLEADINGS – application to amend – medical negligence – where plaintiff proposes to rely on loss of a chance of a better outcome – whether proposed amendment raises a different case to that pleaded originally – where application to amend made 11 years after the events said to give rise to the cause of action and 8 years after the current pleading filed – where hearing listed to commence in February 2010 – where amendment potentially futile or unfair to the defendant – application refused

CATEGORY : Procedural and other rulings

Jack Anthony Greenwood bht Jodie Maree Greenwood (First Plaintiff) PARTIES : Jodie Maree Greenwood (Second Plaintiff) South Eastern Sydney & Illawarra Area Health Service (Defendant)

FILE NUMBER(S) : SC 20577 / 2001

COUNSEL : D Elliott (Plaintiffs) P W Taylor SC with R H Weinstein (Defendant)

SOLICITORS : Gerard Malouf & Partners (Plaintiffs) F Menniti (Defendant)

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

HARRISON J

25 November 2009

20577 / 2001 Jack Anthony Greenwood bht Jodie Maree Greenwood and Jodie Maree Greenwood v South Eastern Sydney & Illawarra Area Health Service

JUDGMENT 1 HIS HONOUR: This is an application by the plaintiffs in a medical negligence case to amend their pleadings to include a claim for the loss of the chance of a better medical outcome. Background 2 The first plaintiff was born on 11 August 1998. He sues by his tutor who is his mother. The proceedings were originally commenced by statement of claim filed on 26 June 2001. That document alleges that the defendant injured the first plaintiff as the result of a failure at the time of his mother's confinement to deliver him in a timely way. In particular, the plaintiffs say that the defendant breached its duty of care by failing to perform a Caesarean section instead of a vaginal delivery, permitted the second stage of labour to be prolonged, or failed to perform a Caesarean delivery when it knew or ought to have known that the delivery was likely to be obstructed. 3 The plaintiffs allege that as a result of the defendant's breach of duty the first plaintiff suffered an increased risk of cerebral vascular problems and suffered a left middle cerebral artery infarct leading to permanent right hemiplegia. The plaintiffs claim that as a result of these events the first plaintiff will need extensive medical treatment, including rehabilitation and the ongoing need for care. The plaintiffs contend that the first plaintiff has also sustained a reduction in his earning capacity. Associated losses are also claimed. Consideration 4 By notice of motion filed on 18 November 2009 the plaintiffs seek leave to file an amended statement of claim. That application is supported by an affidavit of Christine Beshay sworn 18 November 2009. Among other things Ms Beshay annexes a copy of a report from Dr Geoffrey Parker dated 29 December 2008 which Ms Beshay says "raises the possibility of a finding of the 'loss of chance' of a better outcome" and that it is in the circumstances "desirable that the possibility be expressly pleaded even though it is not the plaintiff [sic] or the defendants [sic] primary case". 5 Dr Parker is a neuroradiologist. The plaintiffs would appear to have been in possession of his report since shortly after the date that it bears. In response to a request to provide an expert's opinion "on cause and timing of the plaintiff's cerebral infarct", Dr Parker proffered the following opinion: "Up to 25% of cases of neonatal stroke are said to be idiopathic, although some cases of idiopathic stroke have been attributed to a thromboembolic event with the source of embolus unknown …