Molnar v Kumar [2012] NSWDC 66

District Court New South Wales

Medium Neutral Citation: Molnar v Kumar [2012] NSWDC 66 Hearing dates: 20/04/2012 Decision date: 30 April 2012 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Notice of motion dismissed. 2. Plaintiff's costs be costs in the proceedings. Catchwords: Procedure - application seeking dismissal of proceedings under UCPR r 31.36 - content of experts' reports in professional negligence claims - whether plaintiff complied with r 31.36 - requirement that expert's report "support" plaintiff's case Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Fan v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 123 Salzke v Khoury [2009] NSWCA 195 Category: Interlocutory applications Parties: Shirin Molnar (plaintiff) Dr Damodaran Prem Kumar (defendant) Representation: Mr R Weinstein SC (plaintiff) Mr M Hutchings (defendant) Carroll & O'Dea Lawyers (plaintiff) McCabe Terrill Lawyers (defendant) File Number(s): 2011/382033 Publication restriction: No

Judgment

A. Introduction 1These proceedings involve a claim for medical negligence. The defendant has filed an application seeking dismissal of the proceedings. He relies on rule 31.36 of the Uniform Civil Procedure Rules 2005 ("UCPR").

B. Background 2The plaintiff developed a wound infection following a tubal ligation and removal of an intra-uterine device by a medical practitioner in March 2007. Further operations related to the wound infection followed: two by the same doctor then three more operations by the defendant, four by a third doctor, and finally one by a fourth practitioner, eleven operations in all. 3In paragraph 30 of the statement of claim the plaintiff alleges that the defendant was negligent in six respects: (a)Prior to performing a surgery on the plaintiff, failing to order a CT scan of the plaintiff's abdomen with contrast, a barium follow-through study, virtual colonoscopy or sonogram; (b)Prior to the Fourth Operation; failing to diagnose an entero-cutaneous fistula in June 2007 by ordering a CT scan of the plaintiff's abdomen with contrast, a barium follow-through study, virtual colonoscopy or sonogram; (c)Prior to the Fourth Operation, failing to institute conservative management for an entero-cutaneous fistula in June 2007 in the form of nil by mouth, total parenteral nutrition and antibiotics until such time as the fistula closed; (d)In the event of failure of conservative management after six weeks to eradicate the entero-cutaneous fistula, failing to perform a laparotomy to excise the entero-cutaneous fistula; (e)Failing to record the fact that he had perforated the small bowel during the Sixth Operation; (f)Failing to diagnose and excise an entero-cutaneous fistula during the Sixth Operation. 4The plaintiff alleges in paragraph 31 of the statement of claim that this breach of duty caused damages particularised as follows: (a)The Fourth Operation; (b)The Fifth Operation; (c)The Sixth Operation; (d)The Seventh Operation; (e)The Eighth Operation; (f)The Ninth Operation; (g)The Tenth Operation; (h)The Eleventh Operation; (i)Incisional hernia; (j)Entero-cutaneous fistula of the nature and extent it had reached when finally diagnosed on 6 February 2008; (k)Intra-abdominal and pelvic adhesions of the nature and extent they had reached when the entero-cutaneous fistula was finally diagnosed on 6 February 2008; (l)Small bowel obstruction; (m)Disfigurement and scarring; (n)Anxiety; (o)Depression; (p)Adjustment disorder. 5The plaintiff has filed and served two reports of Professor David L Morris ("Morris Reports") that contain expert opinion in relation to the plaintiff's treatment and injuries. These reports were contained in an affidavit of Jonathan Patrick Newby sworn 14 March 2012, which was read on the application. 6The defendant asserts that the Morris Reports do not support the plaintiff's claim in the manner required by UCPR 31.36.