Mahoney by her Tutor Patrick Mahoney v Healthscope t/as Campbelltown Private Hospital [2015] NSWSC 1255

Supreme Court New South Wales

Medium Neutral Citation: Mahoney by her Tutor Patrick Mahoney v Healthscope t/as Campbelltown Private Hospital [2015] NSWSC 1255 Hearing dates: 26 & 27 August 2015 Date of orders: 28 August 2015 Decision date: 28 August 2015 Jurisdiction: Common Law Before: McCallum J Decision: Leave granted to plaintiff to amend her statement of claim in the form annexed to the orders Catchwords: PRACTICE AND PROCEDURE - amendment of pleadings – where hearing date fixed – complex medical issue – whether plaintiff delayed bringing application for tactical reasons – whether delay adequately explained Legislation Cited: Civil Procedure Act 2010 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175 Category: Procedural and other rulings Parties: Mary Mahony (plaintiff) Healthscope Ltd t/as Campbelltown Private Hospital (first defendant) Dr Bruce Ager (second defendant) Dr Maureen Qureshi (third defendant) Representation: Counsel: I Butcher (plaintiff) M Windsor (first defendant) E Muston (second defendant) MJ Walsh (third defendant)

Solicitors: MD Di Re (plaintiff) Kennedys (first defendant) Tress Cox Lawyers (second defendant) Norton Rose Australia (third defendant) File Number(s): 2013/00133065 Publication restriction: None

Judgment 1. HER HONOUR: These are proceedings for medical negligence commenced by statement of claim filed on 30 April 2013. The proceedings are listed for hearing with an estimate of ten days commencing on 30 November of this year. 2. On Wednesday there came before me as duty judge an application by the plaintiff to amend her statement of claim. Owing to a combination of the case load of the duty list that day and the endearing practice of barristers in this city to under-estimate the time required for argument, the hearing continued yesterday. 3. In light of the approaching hearing date, I consider it appropriate to determine the application with a measure of urgency and these reasons will accordingly be relatively brief. For the following reasons I have determined that the application should be granted. 4. There was also an application in respect of interrogatories which had in the main been resolved by agreement during the hearing of the application to amend. There potentially remains further contest as between the plaintiff and the first defendant in respect of the interrogatories which may be determined upon re-listing the proceedings exercising liberty to restore. 5. The proceedings arise out of a catastrophic event following bilateral knee replacement surgery undergone by the plaintiff at Campbelltown Private Hospital in August 2010. The surgery was performed by Dr Ireland. He is not a defendant to the proceedings. Following the surgery, the plaintiff was transferred to a recovery ward and thereafter to the high dependency unit at the hospital. It is alleged that, during that period of time, she became hypovolaemic, hypotensive and that as a result she suffered global hypoxic brain damage. She has not regained consciousness and remains in a vegetative state. 6. There are three defendants to the action. The first is the proprietor of the hospital. The second is the anaesthetist, Dr Ager. The third is a medical officer employed by the hospital, Dr Qureshi. Only the first defendant opposes the amendment application. 7. The plaintiff has, until seeking the amendment, conducted the case on the premise of a theory that the brain damage referred to in the statement of claim was caused by what might be referred to in layman's terms as inadequate fluid being administered to her following the operation. 8. In August of last year, the first defendant served a report of Dr Spira which pointed to an alternative theory as to the causation of the brain damage suffered by the plaintiff. Following the surgery, the plaintiff had her own blood reinfused through what is known as a Stryker drain. Dr Spira noted that infusion from the Stryker drains had occurred prior to the plaintiff's deterioration, raising the possibility: "that a faulty drain or erroneous reinfusion technique may have allowed thrombus or air to gain access to the venous side of the circulation." 1. In December of last year, the second defendant served a report of Dr Watson, neurologist, who was asked to answer what caused the plaintiff's loss of consciousness at about 14.05 on 9 August 2010. His opinion was: "Mrs Mahony's sudden loss of consciousness was as a result of a catastrophic shower of cerebral fat emboli peri-operatively in relation to her bilateral knee replacement that day." 1. He cited an article entitled "Cerebral Fat Embolism Syndrome After Simultaneous Bilateral Total Knee Arthroplasty". The article studied the cases of 2,345 patients who had undergone the same operation as the plaintiff. The overall incidence of cerebral fat embolism syndrome was 0.17%, representing four patients in the study, all of whom made a complete recovery. Mrs Mahony has made no recovery whatsoever and, as already noted, has remained in a vegetative state since the day of the operation. 2. On paper it is clear enough, as submitted by Mr Windsor on behalf of the first defendant, that the issue of fat embolism, to the extent that it was raised in the reports to which I have referred, was never pleaded against the first defendant. Mr Windsor submitted that if the plaintiff wished to embrace the fat embolism theory as an alternative theory of causation, she should have done that a long time ago or else must accept that she has put herself at risk of losing the current hearing date. 3. An important plank of the first defendant's opposition to the amendment is that it is ready to meet on the hearing date in November the case as currently pleaded, but that there is a real risk of its not being ready to meet the new case. In particular, in his careful submissions, Mr Windsor listed a series of further steps which will or may have to be undertaken by the first defendant to meet the new case. Mr Windsor described those steps as investigations that up to this point in time have been unnecessary. It may be accepted that the list of further steps there set out indicates the prospect of a good deal of catch-up work to be undertaken on behalf of the first defendant if the amendment is allowed. 4. The application is governed by the well-known principles stated by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175. As a preliminary point, having regard to the principles stated in that case, it may be observed that there is not any real doubt in the present case that the question of causation of the harm suffered by the plaintiff is a real issue in the proceedings, as that term is comprehended within the provisions of the Civil Procedure Act 2005 (NSW). The difficulty in the present case is that the issue of causation is medically complex. It may be said against the plaintiff that those representing her have been slow to embrace a causation theory that emerged on paper in the reports of the two experts to which I have referred as early as August last year. 5. Mr Butcher, who appears for the plaintiff, gave what I accept to be a sincere and sensible explanation for the thinking within the plaintiff's camp on that issue. The critical event which appears to have prompted the plaintiff (contrary to the approach taken at earlier stages of the proceedings) now to embrace the fat embolism causation theory is the service by the second defendant on 22 April 2015 of an expert report of Dr Geoffrey Parker, a neuro-radiologist. More recently the plaintiff herself served a report of Dr Keenan on 28 July 2015. Each of those reports indicated that neuro-radiological abnormalities in the plaintiff are due to embolism. 6. The plaintiff had, shortly before the service of Dr Keenan's report, foreshadowed the prospect of a change in the causation theory by letter dated 1 July 2015 (exhibit C on the application). The plaintiff's solicitor said: "As you are aware, Dr Paul J Spira, whose report dated 11 August 2014 has been served by you, has noted the temporal link between the reinfusion of the drainage blood and the deterioration. He believes there was embolism and has raised the possibility of erroneous reperfusion technique. The combination of Dr Spira's and Dr Parker's opinions means that the reperfusion of the drainage blood will inevitably be a significant issue in the case." 1. That letter was probably not sufficient to put the first defendant on notice of the amendment application, which was not made until August, the notice of motion being dated 19 August 2015, but it is a factor which takes the case out of the category of the kind of application considered in Aon, where a whole new cause of action was sought to be added after the commencement of a four week hearing. Mr Windsor noted the remarks of the Chief Justice in Aon at [4] to the effect that the Court, in granting an amendment, should not take "an unduly permissive approach". The full paragraph of his Honour's judgment reads: Save for the dissenting judgment of Lander J in the Court of Appeal, the history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so. In such circumstances, the party making the application bears a heavy burden to show why, under a proper reading of the applicable Rules of Court, leave should be granted. 1. Whether an approach is "unduly permissive" of course calls for an evaluative judgment having regard to the mandatory considerations in the Civil Procedure Act and in particular the requirement of the Court to determine such applications by reference to the dictates of justice. The remarks of the Chief Justice set out above focus on the need for an adequate explanation for a late application, consideration of the lateness of the application and consideration as to whether the application necessitates the vacation or adjournment of dates set down for trial. 2. His Honour also referred to whether there has been a deliberate tactical decision not to raise a claim at an earlier point. The decision of the plaintiff in the present case may be said to have been deliberate in the sense that careful consideration was given to the competing theories. Those advising the plaintiff evidently determined to pursue her original case theory, notwithstanding evidence to support a competing theory. That is perhaps not an unnatural instinct in such a case, particularly in the context of the adversarial nature of civil litigation in this jurisdiction. 3. I should note, however, that I do not accept the submission put on behalf of the first defendant, if it was intended to be understood in this way, that the decision was a deliberate tactical one in the sense of there being any sharp practice or deliberate concealment of the claim ultimately intended to be brought. On the contrary, I accept that the complexity of the medical issues and the natural tendency for a legal representative to back his or her initial judgment combined to produce what may have been a slow change of thinking but one which, once crystallised, was (in my view) brought forward appropriately. 4. In my view, the lateness of the application is adequately explained. I am not persuaded that it will necessarily precipitate the vacation of the hearing dates, although I accept that there will be a considerable amount of work to be done. The issue is not entirely new. In all the circumstances, in my view, the plaintiff has discharged the burden of showing why leave to amend should be granted. 5. In particular, I have placed considerable weight on the fact that the causation of the damage is a critical element of the plaintiff's claim. If there are respectable competing medical theories on that issue that can properly be met at trial, then the dictates of justice demand that the plaintiff be allowed to take that course notwithstanding the inconvenience that would be imposed in permitting that to occur at this stage. 6. For those reasons the plaintiff's application is granted.