Supreme Court New South Wales Medium Neutral Citation: John v Henderson (No.1) [2013] NSWSC 1435 Hearing dates: 22/08/2013 Decision date: 11 September 2013 Jurisdiction: Common Law Before: Garling J Decision: Neither of the forms of questions proposed by the parties is appropriate but rather, the list of questions including the introductory material which is annexed to this judgment will be the appropriate issues to be put to the experts. Catchwords: EVIDENCE - Professional Negligence List - Application of Practice Note SC CL 7 - expert evidence to be given concurrently - no agreement on issues to be considered by experts - whether proposed questions for experts appropriate PROCEDURE - issues to be considered by experts to be determined by the Court - speedy determination of issues - Application of ss 58 and 61 of the Civil Procedure Act (2005). Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Botany Bay Council v Rethman Australia Environmental Services Pty Limited [2004] NSWCA 414 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 Category: Interlocutory applications Parties: Kerrie Anne John (P) Dr Peter Henderson (D) Representation: Counsel: D Graham SC (P) V Thomas (D) Solicitors: Carroll & O'Dea Lawyers (Sydney) (P) Ashurst Australia (D) File Number(s): 2010/00268509 Judgment 1In 2007, Kerrie Anne John, the plaintiff, consulted Dr Peter Henderson, a specialist gynaecologist, for advice and treatment in relation to a possible vaginal prolapse. During the course of the consultation, Dr Henderson provided Ms John with information and advice about the proposed surgery. Ms John consented to the surgery and on 16 August 2007, underwent a vaginal hysterectomy with an anterior and posterior vaginal prolapse repair using PROLIFT® Mesh. 2Complications followed which necessitated the plaintiff undergoing a second operation at the hands of Dr Henderson on 20 November 2007, and two further operative procedures in August 2008 and April 2009 which were carried out by different surgeons, one a urogynaecologist, and the other a colorectal surgeon. 3Proceedings were commenced in 2010 by the plaintiff in which she claims damages from Dr Henderson. The plaintiff's claim relies upon two principal causes of action. The first cause of action is in negligence and alleges that Dr Henderson was in breach of his duty of care to Ms John because he failed to provide sufficient information and warnings or adequate advice about the risks and benefits of the operation which he undertook, what the alternative operative procedures were, and what were the comparative risks and benefits of each operative procedure. 4In addition, the plaintiff pleads that Dr Henderson owed her a fiduciary obligation and that he was in breach of that fiduciary obligation because of the undisclosed relationship which he had with the manufacturer and/or distributor of the mesh used in the surgery and because he used, albeit without identification, clinical details of the plaintiff for an audit or study which he was undertaking with respect to the procedure. The plaintiff claims that but for the breach of either the Common Law duty or else the fiduciary duty by the defendant, she would not have undergone the particular surgery which she did, and as a consequence, would not have sustained significant ongoing physical disabilities of the kind set out in her pleading. 5Shortly put, the plaintiff claims that she had inadequate advice or information to enable her to make an informed choice of two forms of surgery, one which she says is the more conventional type, and the second, which she underwent, or else, to undertake no surgery at all. 6She claims that the benefits of the surgery which she underwent were overstated, and that had they been properly described to her in a balanced fashion which would have enabled her to compare the two forms of surgery by reference to their risks and benefits, as well as the alternative of not undergoing any surgery, she would not have elected to undergo this form of surgery. She does not claim that the surgery itself was undertaken negligently, but claims that he she would not have undergone the surgery at all. Hence, all of the surgery itself, and the complications which she has sustained as a consequence of it, including the three further operations, would not have occurred. She claims that the totality of these, therefore constitute an injury. 7Dr Henderson denies the allegations of negligence and breach of fiduciary duty. Dr Henderson says that he, in fact, provided considerable information and material to the plaintiff, that the information was in both written and oral form, the plaintiff was invited to read the written material carefully and to consider it, including taking the written material home and further, that the advice which he gave the plaintiff was correct and adequate. 8Proceedings are fixed for hearing on 25 November 2013. In the course of the preparation of the proceedings for hearing, the Court made orders that the experts on liability, namely, four gynaecologists should meet in joint conference and prepare a joint report. As well, the Court made orders that the evidence of these experts be given concurrently. The parties have been unable to agree on the questions or issues about which the joint conference of experts ought be asked for a joint opinion. As a consequence, it has fallen to the Court to resolve the differences between the parties. 9In proceedings in the Professional Negligence List, as this matter is, cl 34 of Practice Note SC cl 7 requires, that unless otherwise directed by the Court, that all expert evidence be given concurrently. Rule 31.20(2)(h) and r 31.24 of the Uniform Civil Procedure Rules ("UCPR") are of relevance to the directions which the Court may give regarding expert witnesses and for the conference between expert witnesses. The end result of a joint conference between expert witnesses is the production of the joint report. Rule 31.26 of the UCPR deals with any such joint report. 10The relevant rules are: "31.20 Court may give directions regarding expert witnesses (1) ... (2) Directions under this rule may include any of the following: (a) ... ..., (h) a direction requiring experts in relation to the same issue to confer, either before or after preparing experts' reports in relation to a specified issue," .... 31.24 Conference between expert witnesses ... (1) The court may direct expert witnesses: (a) to confer, either generally or in relation to specified matters, and (b) to endeavour to reach agreement on any matters in issue, and (c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and (d) to base any joint report on specified facts or assumptions of fact, and may do so at any time, whether before or after the expert witnesses have furnished their experts' reports. (2) The court may direct that a conference be held: (a) with or without the attendance of the parties affected or their legal representatives, or (b) with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or (c) with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue). (3) An expert witness so directed may apply to the court for further directions to assist the expert witness in the performance of his or her functions in any respect. (4) Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought. (5) An expert witness who makes such an application must send a copy of the request to the other expert witnesses and to the parties affected. (6) Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing. ... 31.26 Joint report arising from conference between expert witnesses ... (1) This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1) (c). (2) The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement. (3) The joint report may be tendered at the trial as evidence of any matters agreed. (4) In relation to any matters not agreed, 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. (5) Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report." 11The giving of concurrent evidence is a form of procedure where evidence is given by all of the experts together at the same time. It resembles a discussion in which a co-operative endeavour is engaged to identify the relevant issues and where possible, arrive at an agreed resolution of them. To the extent appropriate, the joint evidence is subject to judicial control, much like the control by a chair of a meeting, although all necessary formality is observed. In cases involving concurrent evidence, at least where a judge sits without a jury, there is no reason for a judge not to "intervene to control, to clarify or to make known a provisional view" in the course of the expert's evidence: see Botany Bay Council v Rethman Australia Environmental Services Pty Limited [2004] NSWCA 414 per Tobias JA, (Spigelman CJ and Santow JA agreeing) at [46]. 12The parties are expected to agree upon the issues to be considered by the experts at a joint conference prior to the conference commencing. Such issues according to the common practice, then become, where necessary, the issues covered by the joint expert evidence. In effect, the list of issues becomes an agenda which is the sequence followed in the concurrent evidence session. As the UCPR provides, the joint conference is a forum, without the presence of lawyers for the parties, at which the experts consistently with the expert Code of Conduct, discuss the issues and attempt to reach agreement on those issues where possible. If agreement is not possible, then the joint report requires that the fact of their non-agreement be set out and that it be accompanied by a short expression of the basis of their non-agreement. 13It is ordinarily to be expected that the process of joint conferencing will reduce the number of issues in dispute between the parties and will have the consequential effect of reducing the time spent by the experts in court and accordingly, the costs to the parties. The giving of evidence jointly is a process which is more informal than the typical adversarial process of a witness giving evidence. That is because inevitably, experts will comment on answers given by fellow experts or on opinions expressed by them. As well subject to proper control and management, experts are permitted to ask questions of each other. Experience demonstrates that these questions are often more incisive and of greater assistance in eliciting the real difference in the basis of the opinions of the experts. 14These proceedings have come before the Court for directions because prior to the joint conference of the liability experts and the preparation of the joint report, the parties are unable to agree on the list of issues which ought be provided to the expert, and the way in which those issues ought be worded. In considering and determining the dispute between the parties, the Court is obliged to give such directions as it thinks fit "for the speedy determination of the real issues between the parties in the proceedings": see s 61 of the Civil Procedure Act 2005. 15Further, the Court is obliged to act in accordance with "the dictates of justice", see: s 58 of the Civil Procedure Act. This includes giving effect to the over-riding purpose of the Civil Procedure Act and the UCPR in their application to civil proceedings, which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": see s 56 Civil Procedure Act. 16I will bear these matters in mind in determining the issues which are to be put before the experts in this case. A number of questions or issues which are to be put before the experts are agreed between the parties. The parties are in disagreement about a series of matters which affect the way in which the balance of the issues are to be put before the experts. 17Broadly speaking, the differences between the parties deal with whether first, certain issues are properly matters for the Court or for the experts, and secondly, the relevant standard which the experts are being asked to address and the words which are being used to describe that standard; and thirdly, the broad subject matters upon which the experts are being asked to address their opinions. 18It is necessary to deal with this in turn. The most convenient approach is that the Court has considered the questions provided and has, with the assistance of the parties, formulated the questions which the Court will permit to be put to the experts. The way in which this list of questions has been formulated is to attempt to simplify the wording so that common definitions are used which necessarily reduce the size of each issue being posed, and secondly, not to ask closed questions but rather, to invite the experts to consider questions which are phrased in a more open manner. 19In my view, for proceedings in the Professional Negligence List, it is undesirable to frame questions as though they were interrogatories being asked of the experts, and to frame questions in a way which invites the experts to confine themselves to a single word answer such as "yes" or "no". Experience suggests that obtaining agreement to questions framed in this way is likely to be very different. 20In my view, this process is more akin to the delivery of joint interrogatories than a process to which I have earlier referred which is to enable the experts in a joint conference to express their opinions, and by mutual discussion, determine whether the opinions on various issues are the same or can be agreed or whether there is a fundamental difference between them leading to their non-agreement on one or more issue. 21It is not generally appropriate, in my view, to ask direct questions of the experts which are matters of law which are appropriate for a judge. 22Here, except in cases where the parties are agreed, the questions have been framed to invite discursive answers, and answers which it is hoped will elicit the real difference in the opinions between the experts retained by the parties. 23One matter of substance which was debated between the parties was whether, given that this is a case with respect to the claim for breach of the common law duty of the provision of information, advice or warnings, was whether the opinion of the experts and common practice as that term is understood, is relevant for the experts to express an opinion on. 24Senior counsel for the plaintiff pointed to the terms of the judgment of the High Court of Australia in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 and submitted that the adequacy of advice or information provided to the plaintiff is a matter solely for the determination by the Court and not one in the resolution of which expert opinion has any role to play. 25Counsel for the defendant submitted by reference to the judgment of Gleeson CJ in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, that whilst expert opinion in this area of discourse was not determinative of the issue, it was nevertheless relevant. It seems to me that it cannot be said, at this stage of the management of these proceedings, that the opinion of these experts on those questions is wholly irrelevant, and necessarily therefore, inadmissible. I am reluctant in the absence of forming such a firm conclusion by a determination at this early stage of the proceedings, to fundamentally affect the final course of the proceedings. 26It seems to me that the appropriate course to follow where I am not positively persuaded that such evidence is wholly irrelevant is to permit the questions to be asked, in the form on which I have settled, of the experts, to note that the plaintiff objects to the evidence being admitted, and to reserve to the trial judge the question of whether any expert evidence on those issues is or is not admissible. Of course, what the experts say may affect that question of admissibility. 27After all, as the rules provide, if experts are in disagreement about particular issues, then their joint report on those issues is not necessarily admissible, however, I wish to make it plain in this judgment I am specifically reserving that question for determination by the trial judge. 28In those circumstances, it is appropriate that the experts are asked to express an opinion on those matters and the questions have been formulated in a way which will permit that to happen. It is unnecessary for me, in giving these reasons, to deliver a lengthy excursus on the way in which questions or issues in particular ought be framed. It is sufficient for the parties to observe from the annexure to this judgment, which will be the settled questions, the views which I take on how those questions should be framed. In short, questions should be framed as simply as is possible in an open-ended manner and targeted to issues raised by pleadings. 29For those reasons, I have concluded that neither of the forms of questions proposed by the parties is appropriate but rather, the list of questions including the introductory material which is annexed to this judgment will be the appropriate issues to be put to the experts. An order will be made to give effect to this judgment. ****** ANNEXURE A QUESTIONS FOR GYNAECOLOGY EXPERTS Attendees Professor Andrew Korda Professor Hans Peter Dietz Dr Marcus Carey Associate Professor Malcolm Frazer Directions for experts - joint conference Please see: the Supreme Court of NSW Expert Code of Conduct (at tab 2 of your brief of documents); the Supreme Court of NSW Practice Note (SC Gen 11) dealing with the conduct of joint conferences for experts (at tab 3 of your brief of documents). Factual disputes There are a number of factual issues between the Plaintiff and the Defendant. The Plaintiff and the Defendant have each prepared a statement of factual assumptions (Assumptions) (tabs 6 and 7 respectively of your brief of documents). The different factual positions taken by each party are in the Assumptions. A number of the questions require you to consider the alternative Assumptions and provide answers based on each. The Court will resolve those factual issues on the evidence before it and then have the benefit of your answers based on the alternative Assumptions. Questions and Answers A typist will be available on the day of the conference to assist you to record your answers to these questions. Please answer each question setting out matters which are: agreed upon; and not agreed between you. Please provide reasons for any matters which are not agreed between you. Where relevant, you are asked to provide alternative answers each based on one (alternative) set of Assumptions. Completed report Please forward the completed joint report to each of the parties' solicitors at the following addresses: [Names and addresses omitted] Thank you for participating in the joint conference and providing the joint report. Your contribution is appreciated. LIST OF QUESTIONS Definitions For the purposes of these issues, the following terms, used in the description of the issues have the expanded meanings which are specified below: The operation: The vaginal hysterectomy with anterior and posterior PROLIFT® repair. Alternative procedure: A conventional colporrhaphy for vaginal prolapse without mesh. Pleaded risks: Any one, or more, of the following risks of the operation: (a)Mesh erosion, extrusion or exposure; (b)Chronic pain; (c)Chronic dyspareunia or apareunia; (d)Failure of the operation and the requirement for subsequent surgery; (e)Vaginal narrowing; (f)That the mesh could erode into and damage the surrounding blood vessels, the bowel, bladder and nerves after the operation and may not be capable of removal; (g)Marked deterioration in the quality of life after the operation. Gynaecologist: A skilled and reasonable gynaecologist in the position of Dr Henderson in July 2007 Information: includes information, warnings, or advice given either orally, or in writing, or both. Acceptable practice: means that Dr Henderson conducted himself, as a skilled gynaecologist, in a way that (at the time the service was provided) was widely, but not necessarily universally, accepted by peer professional opinion, by a significant number of respected practitioners in the field of gynaecology, as competent professional practice. Question 1 [Sub-paragraphs 15(d)-(k) and 21(h) of 4ASOC] 1In July 2007, would a gynaecologist have known that any of the pleaded risks, and if so, which, were associated with: (a)the Operation; and/or (b)the alternative procedure. Questions 2 and 3 [Sub-paragraphs 15(d)-(k) and 21(h) of 4ASOC] 2In respect of each pleaded risk which was known to a gynaecologist, what opinion would a gynaecologist have formed about the likelihood (expressed as a percentage chance or incidence rate where possible) of that risk materialising in the case of the Plaintiff undergoing either the operation or alternative procedure? 3In respect of each pleaded risk which was known to a gynaecologist, what opinion would a gynaecologist have formed about the nature and severity of any complications that the Plaintiff would suffer if the risk materialised if she underwent either the operation or alternative procedure? Question 4 [Paragraph 15 (opening) and sub-paragraph 21(l) of 4ASOC] 4What information, whether a pleaded risk or not, if any, would a gynaecologist have provided or caused to be provided to the Plaintiff about the benefits and risks and/or advantages and disadvantages of: (a)the Operation; and/or (b)the alternative procedure; and/or (c)a comparison of the two procedures; and/or (d)having no operative treatment at all for her prolapse? Please provide two separate answers to this question: (i)one answer based on paragraphs 4 to 20 of the Plaintiff's Assumptions; (ii)one answer based on paragraphs 6 to 30 of the Defendant's Assumptions. Question 5 [Sub-paragraphs 15(d) and 21(h) of 4ASOC; See also sub-paragraphs 21(c), 21(d) and 21(j)] 5Did Dr Henderson depart from acceptable practice, in July 2007, in respect of the information, if any, which he provided or caused to be provided to the Plaintiff about each of the pleaded risks? Please provide two separate answers to this question: (i)one answer based on paragraphs 7 to 20 of the Plaintiff's Assumptions; (ii)one answer based on paragraphs 8 to 30 of the Defendant's Assumptions. Question 6 6In July 2007, did acceptable practice require that a gynaecologist personally explain the content of the following to the Plaintiff: (a)any, and if so, which of the information referred to in the answer to question 4 above; and/or (b)the Long Consent Form (at tab 25 of your brief of documents); and/or (c)the Documents (at tabs 17 to 27 of your brief of documents)? Question 7 [Sub-paragraphs 15(a) and 15(b) and 21(h) of 4ASOC] 7Did acceptable practice require a gynaecologist to provide information to a patient, in the position of the Plaintiff that: (a)the long term risks and benefits of PROLIFT® mesh repairs had not been evaluated and were uncertain; (b)the long term benefits and risks of PROLIFT® mesh repairs were still being investigated. Question 8 [Sub paragraphs 15(l) to 15(q), 15(v) and 15(w) and 21(h) of 4ASOC] 8Would a gynaecologist depart from acceptable practice by not informing a patient, in the position of the Plaintiff that: (a)the risks of anterior and posterior PROLIFT® mesh repair surgery were greater than those for conventional anterior and posterior colporrhaphy without mesh; (b)the risks and benefits of each part of the Operation (anterior PROLIFT® mesh repair, posterior PROLIFT® mesh repair and hysterectomy) were different; (c)the risks and benefits of each part of the Operation were separately known and could have been separately stated to the Plaintiff; (d)the risks and benefits of the Operation as a whole were different from the risks and benefits of an anterior PROLIFT® mesh repair performed on its own; (e)the risks and benefits of the Operation as a whole were different from the risks and benefits of an posterior PROLIFT® mesh repair performed on its own; (f)the risks and benefits of the Operation as a whole were different from the risks and benefits of a combined anterior and posterior mesh repair; (g)anterior vaginal prolapse repair with PROLIFT® mesh does not result in a better outcome and is associated with more risks than a conventional anterior colporrhaphy; (h)posterior vaginal prolapse repair with PROLIFT® mesh does not result in a better outcome and is associated with more risks than a conventional anterior colporrhaphy? Questions 9 and 10 [Sub-paragraphs 21(k) of 4ASOC] 9What information, if any, would a gynaecologist have provided or caused to be provided to his or her patient in the position of the Plaintiff, about an audit of the kind being conducted by Dr Henderson, being conducted by the gynaecologist? Please provide two separate answers to this question: (i)one answer based on paragraph 22 of the Plaintiff's Assumptions; (ii)one answer based on paragraph 39 and 41 of the Defendant's Assumptions. 10Was there an acceptable practice by a gynaecologist in respect of any information to be provided to a patient, in the position of the Plaintiff, about an audit of his operations? Please provide two separate answers to this question: (i)one answer based on paragraph 22 of the Plaintiff's Assumptions; (ii)one answer based on paragraphs 39 and 41 of the Defendant's Assumptions. Questions 11 - 13 [Sub-paragraphs 15(r), 15(s), 15(t), 15(u), 21(h) and 21(p)] 11Did acceptable practice require that a gynaecologist inform a patient in the position of the plaintiff that: (a)he had "a financial interest in the use and performance of PROLIFT® mesh in vaginal prolapse surgery"; (b)he "was paid by the manufacturer and/or distributor of PROLIFT® to promote its use to other surgeons and/or to train other surgeons in its use"; (c)he "would be using the Plaintiff's clinical information and outcomes in his own clinical audit and would be providing that information to the manufacturer and/or distributor of PROLIFT® in its ongoing study of the risks and benefits of PROLIFT® mesh repairs"; (d)he "had entered into, or intended to enter into, a licence agreement with the manufacturer and/or distributor of PROLIFT® in relation to a clinical registry database he had created for PROLIFT® patients"? Please provide two separate answers to this question: (i)one answer based on paragraphs 21 to 23 of the Plaintiff's Assumptions; (ii)one answer based on paragraphs 33 to 42 of the Defendant's Assumptions. [Paragraphs 14A, 21(n) and 21(p) of 4ASOC] 12Did acceptable practice require a gynaecologist in the position of the Dr Henderson to obtain the consent of a patient in the position of the plaintiff to participate in his clinical audit? 13Did acceptable practice require a gynaecologist in the position of Dr Henderson, to have obtained the consent of a patient in the position of the Plaintiff, to have her information used in the manufacturer and/or distributor of PROLIFT®'s clinical outcomes register or clinical registry database? Question 14 [Sub-paragraph 21(a) of 4ASOC] 14Did Dr Henderson depart from acceptable practice by recommending that the Plaintiff undergo the operation. Please provide two separate answers to this question: (i)one answer based on paragraphs 5 to 10 of the Plaintiff's Assumptions; (ii)one answer based on paragraphs 1 to 5 of the Defendant's Assumptions. Question 15 [Sub-paragraph 21(e) and 21(f) of 4ASOC] 15Did the Defendant depart from acceptable practice by recommending, and performing, as a part of the operation, a posterior PROLIFT® mesh repair on the Plaintiff? Please provide two separate answers to this question: (i)one answer based on paragraphs 5 to 10 of the Plaintiff's Assumptions; (ii)one answer based on paragraphs 1 to 5 and 31 of the Defendant's Assumptions. Question 16 [Paragraphs 25 and 26 of 4ASOC] 16On the balance of probabilities, does the Plaintiff suffer (or did the Plaintiff suffer) from any of the following injuries as a result of the PROLIFT® procedure performed by Dr Henderson? (a)damage to the urinary tract? (b)damage to the bowel? (c)pelvic adhesions? (d)chronic dyspareunia? (e)chronic, intractable pain? (f)damage to pelvic structures from retained PROLIFT® mesh? (g)mesh erosion/exposure? (h)mesh erosion/exposure into the rectum and surrounding structures? (i)vaginal narrowing? Question 17 [Paragraphs 16, 25 and 26 of 4ASOC] 17If the Plaintiff had not undergone the operation and had, instead, only undergone the alternative procedure, would she have more likely than not avoided the injuries listed in paragraph 26 of the fourth amended statement of claim (at tab 4 of your brief)? Question 18 [Paragraphs 16, 25 and 26 of 4ASOC] 18If the Plaintiff had not undergone an anterior and posterior PROLIFT® repair and had, instead, undergone a vaginal hysterectomy and an anterior and posterior colporrhaphy without mesh, would she have more likely than not avoided the injuries listed in paragraph 26 of the fourth amended statement of claim (at tab 4 of your brief)? Question 19 [Paragraphs 16, 25 and 26 of 4ASOC] 19What is likely to have occurred if the Plaintiff had not undergone any treatment for her prolapse? ********** 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. Decision last updated: 27 September 2013