Delaney v Hunter New England Area Health Service [2011] NSWSC 1240

Supreme Court New South Wales

Medium Neutral Citation: Delaney v Hunter New England Area Health Service [2011] NSWSC 1240 Hearing dates: 7, 14 October 2011 Decision date: 20 October 2011 Before: McCallum J Decision: Plaintiff granted leave to serve further expert evidence; rulings on disputes as to groups of experts to be directed to confer and prepare joint reports Catchwords: PROCEDURE - medical negligence - expert evidence - directions as to groups of expert witnesses to confer and prepare joint report Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Interlocutory applications Parties: Leonie Delaney (plaintiff) Hunter New England Area Health Service (defendant) Representation: Counsel E Romaniuk and later S Maybury (plaintiff) S A Woods (defendant) Solicitors Edwards Michael Lawyers (plaintiff) GILD Insurance Litigation Pty Ltd (defendant) File Number(s): 2009/338734 Publication restriction: None

Judgment 1These are proceedings for medical negligence arising from the contention that the plaintiff suffered compression of the spinal cord and related physical and psychological injuries as a result of the alleged negligence of staff and medical practitioners of a hospital conducted by the defendant during the performance of a colonoscopy on the plaintiff. 2The proceedings were referred to me as Duty Judge after the plaintiff exercised liberty to apply for directions in relation to expert conclaves directed by the Registrar. The reason for the exercise of the liberty to apply was the plaintiff's anticipation that she would not be in a position to comply with the Registrar's directions due to a forensic decision by her legal representatives to seek further expert reports. 3Orders previously made by the Registrar had contemplated that the evidence would be closed by 1 July 2011. It was in those circumstances that the Registrar made directions on 22 July 2011 requiring the parties' experts to attend joint conclave by 30 September 2011 and standing the proceedings over for a further directions hearing on 12 October 2011 to be allocated a hearing date. 4The defendant initially opposed the grant of leave to the plaintiff to serve any further expert evidence. The defendant's opposition to that course was not unreasonable. The plaintiff had, until the argument before me, refused (on the grounds of client legal privilege) to identify the proposed further expert evidence in respect of which leave was sought. However, upon my indicating that I would find it difficult to assess the plaintiff's application without that information, the plaintiff outlined the nature of the further evidence proposed to be sought. In the face of that information, the defendant consented to the making of a direction granting a further six weeks for the service by the plaintiff of any further expert reports. A direction in those terms will be made. 5There remains a series of disputes as to when directions should be made for conferences between experts and as to which experts should be directed to confer with each other. This judgment determines those disputes. 6It was submitted on behalf of the plaintiff that, in light of the fact that further expert evidence is to be served, it would be premature to make directions requiring any expert witnesses to confer and prepare joint reports. I disagree. In my view, the information that has been provided to the Court affords an adequate basis to identify which groups of experts should be directed to confer. Further, it is appropriate to make those orders now (albeit in terms that accommodate the possibility of the service of further evidence of the kind identified in argument) in aid of the efficient and expeditious preparation of the proceedings for trial. 7On that premise, the parties have put forward competing proposals as to the groups of experts that should confer (to be marked MFI 2). The assessment of those competing contentions requires some understanding of the way in which the plaintiff's case is put. 8The plaintiff's case (as outlined in argument) is that, for the purpose of the colonoscopy procedure, she was initially only sedated. During the procedure, however, she started coughing, with the result that she had to be intubated so as to be put under general anaesthetic. When she awoke, she felt the symptoms of what was subsequently diagnosed as compression of the spinal cord. 9On her own case, the plaintiff was either heavily sedated or unconscious at all relevant times. Her claim accordingly rests heavily on the expert report of Dr Eyers, who reasons from the medical outcome that the plaintiff must have been moved (negligently) during the procedure in such a way as to cause the spinal injuries sustained. 10The defendant has taken the view that, while Dr Eyers is a colorectal surgeon, the reasoning underlying his opinion invites response from experts with other expertise. Dr Eyers states, in short, that the temporal connection between the symptoms experienced by the plaintiff immediately following her regaining consciousness after the procedure, taken together with the fact that those symptoms were caused by the pathology in her spine, point to the conclusion that that pathology advanced during the course of the colonoscopy procedure. He attributes the causal relationship to the repositioning of the plaintiff, responsibility for which he assigns to the anaesthetist. 11The defendant denies that the plaintiff was repositioned during the procedure and apparently contends in the alternative that, if she was moved, she was moved in accordance with the hospital's policy for manual handling. 12In those circumstances, the defendant has responded to the report of Dr Eyers with a number of expert reports relating to breach of duty of care. The defendant contends that the following experts should confer as to breach of duty: (a) Dr Eyers on behalf of the plaintiff; (b) on behalf of the defendant, Ms Whitby (ergonomist), Dr Hugh (general surgeon), Dr Byrnes (gastroenterologist) and Dr Stenning (general surgeon). 13The first objection raised on behalf of the plaintiff to the grouping proposed by the defendant relates to whether Ms Whitby should be included in the conference. She was asked to assume that the plaintiff was not moved manually during the procedure. However, she was asked to address the alternative (hypothetical) assumption that, if the plaintiff was moved, she was moved in accordance with the hospital's policy for manual handling technique. On that alternative assumption, she expresses the opinion (based on her expertise) that the hospital employed "best practice patient handling" and was not negligent. 14On the basis of matters put on behalf of the plaintiff during argument, Mr Woods, who appeared for the defendant, accepted that Ms Whitby could appropriately be excluded from the conference on breach of duty on the basis that it has been stated unequivocally on behalf of the plaintiff that she does not intend to adduce any further evidence as to the appropriateness of the hospital's policy. On that basis, I do not propose to direct her to attend the conference. 15The second objection raised on behalf of the plaintiff to the grouping proposed by the defendant is the multiplicity of experts addressing the same issues. Mr Maybury, who appeared for the plaintiff, noted that, for historical reasons, the report of Dr Byrnes appears to have been prepared at the request of separate lawyers retained on behalf of the surgeon involved in the colonoscopy, who is not a party to the proceedings. Mr Maybury submitted that, in the event, the defendant has served reports of three surgeons practising effectively in the same specialty (for present purposes) and addressing the same issues. 16Mr Woods responded, with some ingenuity, that the inclusion of three experts on behalf of the defendant in the joint conference would in fact be beneficial to the plaintiff. He noted that, in the way in which the rules are framed, an expert who participates in a conference will not be permitted to give evidence at the trial departing from matters agreed during the conference. He submitted that, in that circumstance, if only a limited number were allowed to attend the conference, the defendant could then call a different expert who was not at the conference to give different evidence. 17In my view, that is precisely the kind of risk sought to be forfended by the rules and the terms of practice note SC Gen 11, which plainly stand as an encouragement to judges to eliminate duplication (and complication) of expert evidence, including by confining a party to a single expert in an appropriate case. 18Mr Woods did not otherwise identify any reason peculiar to the facts of the case for including more than one expert within the field of general or colorectal surgery to express an opinion on the issue of breach of duty of care. Nothing in the reports appears to commend that course. In my view, the defendant should elect between Dr Hugh, Dr Byrnes and Dr Stenning. In reaching that conclusion, I do not of course mean to tie the hand of the trial judge. Plainly, any application to adduce evidence from any other expert will have to be considered on its merits according to the issues between the parties at that time. 19For the same reasons, an election should be made for the purpose of the proposed conference relating to causation, as to which the same objection was taken. 20The third objection raised on behalf of the plaintiff to the grouping proposed by the defendant relates to the inclusion of Dr Slezak in the proposed damages conference. Mr Maybury submitted that, since Dr Slezak deals only with the issue of life expectancy, there should be a separate conference on that issue and that otherwise the conference as to damages should proceed without him. However, the timing of service of the reports in question reveals that he may have been asked to address other matters and he may approach them from a different perspective. Accordingly, in my view, he should be included in the damages conference. 21Mr Maybury submitted that he should first prepare a further report if appropriate. I think it would be cheaper and more efficient to adopt the approach of including him in the conference. 22I direct the defendant to bring in short minutes in accordance with these reasons.