Supreme Court New South Wales Medium Neutral Citation: Porter v Le [2016] NSWSC 1030 Hearing dates: 21 July 2016 Date of orders: 26 July 2016 Decision date: 26 July 2016 Jurisdiction: Common Law Before: Harrison J Decision: (1) Grant leave to the plaintiff to amend his statement of claim in the form attached to the letter dated 20 July 2016 annexed to the affidavit of Natalie Aprea affirmed 20 July 2016 and marked "O". (2) Defendant's application to vacate the hearing scheduled to commence on 22 August 2016 is dismissed. Catchwords: PRACTICE & PROCEDURE – amendment – late amendment – whether proposed amendments create new case or regularise approach taken by parties and upon which expert witnesses have reported in conclave – whether plaintiff entitled to rely on further evidence not previously permitted by order of the court Category: Procedural and other rulings Parties: Arthur George Porter (Plaintiff) Phong Le (Defendant) Representation: Counsel: D E Graham SC (Plaintiff) J M Morris SC (Defendant) Solicitor: Carroll & O'Dea (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2007/265150 Publication restriction: Nil Judgment 1. HIS HONOUR: These proceedings commenced in 2007. They are listed for hearing commencing on 22 August 2016 with an estimate of five weeks. Notwithstanding the age of the proceedings and the impending hearing, the plaintiff has sought by notice of motion dated 20 July 2016 to amend his statement of claim for a second time. That course is opposed by the defendant. Moreover, the defendant seeks to vacate the hearing with concerns about the possibility that the plaintiff will seek to rely on late served evidence, whatever might be the outcome of the application to amend. There is a relationship between the terms of the amendment and the defendant's application. 2. The plaintiff originally consulted the defendant on 24 July 2004. The defendant's diagnosis was that the plaintiff was suffering from acute bacterial rhinosinusitis for which he was prescribed an antibiotic Augmentin Duo Forte and a corticosteroid Panafcort. On 31 July 2004 the plaintiff suffered a haemorrhage from his right adrenal gland secondary to septicaemia. As a consequence of the retroperitoneal haemorrhage, the plaintiff developed an acute abdomen and shock, and was admitted to Westmead Hospital. Between 31 July 2004 and 13 August 2004 the plaintiff underwent a series of operations. During the course of his admission to hospital the plaintiff was diagnosed with septicaemia caused by Klebsiella pneumoniae, multiple cerebral and cerebellar abscesses, suffered acute renal failure and developed bilateral infective emboli of the arteries to his eyes. 3. The plaintiff alleges that at the time when Panafcort was prescribed by the defendant there were not insignificant associated risks that included the masking of signs and symptoms such as deterioration and progression of, and febrile response to, the existing underlying Klebsiella pneumonia bacterial infection from which the plaintiff was then in fact suffering. The plaintiff also alleges that in such circumstances there was a risk that he would become immunosuppressed, would succumb to the overwhelming generalised bacterial infection and that his immune system, including his adrenal function, would be affected and compromised. In the events that occurred, this is what happened. 4. The significant proposed amendments to the statement of claim are to be found in the particulars of the defendant's alleged breach of duty. The plaintiff now wishes to proceed to trial based upon the following allegations of breach of duty: 1. Failing to consider the risks before advising the prescription of Panafcort. 2. Prescribing Panafcort when he knew or ought to have known of the risks. 3. Prescribing Panafcort when there was no indication for doing so. 4. Considering that it was reasonable to prescribe Panafcort for acute bacterial rhinosinusitis: 1. Without first treating the plaintiff with decongestants, antibiotics and nasal douches; 2. When the plaintiff did not have facial pain; 3. Without first ordering a CT scan of the plaintiff's sinuses and head. 1. Wrongly considering that the plaintiff suffered from chronic rhinosinusitis. 2. Failing to prescribe antibiotics only, and to advise the plaintiff to return for review if his symptoms did not improve within 48 hours. 1. The plaintiff also wishes to plead that his loss and damage were caused by these breaches in the following ways: 1. Had the plaintiff not been prescribed or taken Panafcort his acute rhinosinusitis would have been eradicated and he would not have developed Klebsiella pneumoniae septicaemia, a right adrenal gland haemorrhage, multiple cerebral and cerebellar abscesses or any other complications caused by the Klebsiella pneumonia septicaemia. 2. Alternatively, had the plaintiff not been prescribed Panafcort: 1. The infection from which he was suffering would between 26 and 31 July 2004 have manifested in worsening signs and symptoms, including high fever, rigors, sweats, chills, lethargy, malaise, increasing and severe headache, muscle and joint aches, increasing facial pain, increasing mucopurulent rhinorrhea or postnasal drip/drainage, anorexia, peri-orbital pain, swelling and redness, pressure around the cheeks, nose or forehead, confusion, double vision, neck stiffness, ear pressure, reduced sense of smell and taste (among other things); 2. Such worsening signs and symptoms would have been sufficiently severe to have prompted the plaintiff to re-present to the defendant or to attend a hospital emergency department; 3. Had the plaintiff done so between 26 and 31 July 2004, with some or all of the said signs and symptoms, an ordinary skilled general practitioner would have referred him to a hospital emergency department; 4. Had the plaintiff presented to a hospital emergency department during that period he would have undergone appropriate investigations and treatment, including the administration of intravenous antibiotics sensitive to Klebsiella pneumoniae; 5. Had the plaintiff received that treatment, during that period, the development and progression of the pathology that led to the right adrenal gland haemorrhage and the multiple abscesses would have been avoided. 1. On 23 June 2016 I made certain orders concerning the conduct of the hearing, including the taking of expert evidence in concurrent session and the service of medical reports: Porter v Le [2016] NSWSC 849. I granted leave to the plaintiff to rely upon the report of Professor Havas. I made no orders with respect to any fresh evidence of other experts. 2. However, on 14 July 2016, the plaintiff served a supplementary report of Dr B Hudson, a microbiologist, who provided an opinion on the course of the plaintiff's alleged infection in the hypothetical situation where he did not take Panafcort. His new report canvasses matters of general practice and radiology, as well as microbiology. This, among other things, prompted the following letter dated 14 July 2016 from the defendant's solicitors: "We refer to your recent service of the reports of Associate Professor Havas and Dr Hudson…in regards [sic] to the plaintiff's new counter factual. Clearly you have conferred with a number of the experts who are being called to give evidence at the hearing of this matter commencing 22 August 2016 with respect to the new counter factual. As it currently stands, we do not know the experts with whom you have conferred, nor do we know what those experts intend to say on this issue. As a matter of urgency, please confirm which experts you have briefed in regards [sic] to the counter factual and provide copies of all letters of instruction to those experts, indexes of all briefing material, and copies of your conference notes with respect to each conference had with those experts on this counter factual issue. We reserve the right to tender this letter, and any response from you, on any issue in these proceedings, including on the issue of costs. We look forward to hearing from you as a matter of urgency." 1. A follow up letter was sent the next day. It foreshadowed that the matter would be listed before me on 22 July 2016. In the events that occurred, the matter returned to me on 21 July 2016. 2. By letter dated 19 July 2016 the plaintiff's solicitors served a supplementary report of Dr J Jeong and letters of instruction to him. Another letter of the same date was also sent in the following terms: "We refer to your letters of 13 and 14 July 2016 concerning the evidence relied upon by the plaintiff in regards to what you describe as the 'counter factual'. We confirm that the plaintiff relies upon and has served the following: 1. Report of Associate Professor John Raftos dated 12 June 2016 (letter of instruction dated 27 May 2016). 2. Supplementary report of Professor Havas dated 9 June 2016 (letter of instruction dated 7 June 2016). 3. Supplementary report of Professor Hudson dated 14 July 2016 (letter of instruction dated 27 May 2016). 4. Supplementary report of Dr Jeong dated 19 July 2016 (letters of instruction dated 12 and 18 July 2016). We do not consider that you are entitled to receive copies of our conference notes with respect to each expert as those notes are privileged." 1. That letter would appear to have prompted four further letters from the defendant's solicitors, one of which was as follows: "We refer to your letter dated 19 July 2016 concerning the evidence relied upon by your client in regards to this recent issue. We now need to understand your client's case against Dr Le. These recent reports change the allegations against the defendant and also raise questions about complex factual matters which, at the moment, have not been particularised. We require this level of detail in order to not be taken by surprise at the hearing of this matter. Once again, we invite you to send a proposed further amended statement of claim as a matter of urgency, so that we can know the case our client is required to meet. We reserve the right to tender this letter, and any response from you, on any issue in the proceedings, including on the issue of costs." 1. Correspondence between the solicitors on 19 July 2016 would appear blissfully to have come to an end on that day with the following letter from the plaintiff's solicitors: "We refer to your letters dated 19 July 2016. First letter: We confirm that we have not sought a report from any other expert in regards to this counter factual issue apart from those reports served by Prof Havas, Prof Hudson, Dr Raftos and Dr Jeong. Second letter: We have sent you a copy of the unsigned copy of Dr Jeong's report given the impending court appearance this Thursday. A signed copy has been sent, along with annexures, by mail. We will email it to you immediately upon receipt. Third letter: The report of Dr Raftos is dated 12 June 2016, not 12 July 2016. We enclose a further copy of that report along with our letters of instruction dated 27 May 2016 and 3 June 2016." 1. A copy of the plaintiff's proposed second amended statement of claim was sent to the defendant's solicitors on 20 July 2016 seeking consent to its filing. 2. When the matter came before me on 21 July 2016, the defendant read two affidavits of Natalie Aprea affirmed on 20 July 2016. The larger affidavit deposed to the matters to which I have already referred. The second merely annexed a copy of an email from Associate Professor Richard Lee, one of the experts retained by the defendant in these proceedings. His email is relevantly in the following terms: "Further to your request for another report and response to the multiple, recent new or supplementary reports received from Dr Havas, Dr Hudson, Dr Raftos, [and] Dr Jeong. I have a busy clinical load at present and over the next few weeks in ICU and cannot guarantee completion of a report for at least 3-4 weeks. I do feel that the issues raised require unsatisfactory assumptions or have previously been addressed in the conclave and a further supplementary report would require a detailed review of all the clinical material previously addressed and inclusion of further supporting literature. I stand by my opinions previously expressed in my reports and in the reports of the expert conclaves. I will endeavour to provide answers to questions as soon as my clinical commitments permit." 1. The plaintiff read two affidavits of Rebecca Tidswell also affirmed on 20 July 2016. One of them annexed correspondence to which I have already referred. The other affidavit deposed to matters that included the following: "4 A conclave on the issue of causation was held on 24 February 2015. A joint report was prepared and signed by the various experts in June 2015. I received the joint report on 24 June 2015. 5 Question 1 raised in the joint report was as follows: '1. For the purposes of this question please assume that the plaintiff did administer to himself the Panafcort as prescribed by Dr Le. On the balance of probabilities, did the administration of Panafcort at a dose of 25 mg twice daily for 5 days without tapering from 26 July 2004 in conjunction with the administration of Augmentin Duo Forte 875mg/125mg 1 tablet twice daily over the same period, to Arthur Porter (who weighed approximately 90 kg), cause or materially contribute to the following effects: a. immunosuppression b. compromise of his immune response to infection c. suppression of his adrenal cortical function d. masking of any symptoms of deterioration or progression of infection e. an overwhelming bacterial infection including septicaemia f. masking of any febrile response to infection.' 6 A number of experts provided a response to that question dealing with the masking effects of Panafcort. The defendant's experts were of the opinion that the Panafcort did not mask any symptoms of deterioration or progression of the plaintiff's infection or that it affected his immune system in any way. They are of the view that the plaintiff's septicaemia arose after he was admitted to hospital on 31 July 2004 rather than beforehand. The plaintiff's case is that he developed a septicaemia from his bacterial rhinosinusitis on 26 July 2004 before 31 July 2004 and that the prescription of Panafcort was causally related to this outcome. I am unaware of any dispute between the parties about septicaemia causing spread of the bacteria to the plaintiff's brain, multiple abscesses and permanent brain damage. 7 In light of the responses of the experts to question 1, a causation issue arose as to the hypothetical course of events if Panafcort was not prescribed and any symptoms of deterioration or progression of the infection and febrile response were not masked. The issue is whether the plaintiff would have re-presented for treatment prior to 31 July 2004 and whether any treatment would have avoided his brain infection and permanent brain damage. 8 I acknowledge that this issue should have been acted upon and addressed by me earlier. I should have obtained expert reports about it earlier. The first time I requested a report on the issue was when I sent a letter of instructions to Associate Professor Hudson on 27 May 2016 and Associate Professor Raftos on 27 May 2016. 9 It has been necessary to serve further expert evidence on that issue. As envisaged in my affidavit dated 10 June 2016, a supplementary report has been served from an infectious diseases physician (Dr Hudson) and an otolaryngologist (Associate Professor Havas). A new report has been served from an emergency department physician (Dr Raftos). A supplementary report has also been served from a general practitioner (Dr Jeong)..." 1. The parties made very helpful oral submissions that are accurately recorded in the transcript of the proceedings before me on 21 July 2016. It is unnecessary for present purposes to record those submissions in detail in these reasons. Consideration 1. In my opinion, the plaintiff should be given leave further to amend his statement of claim. The hearing should not be vacated. This is for the following reasons. 2. The proposed amendments do not raise a new case. They are directed to the issue of what might reasonably have been the plaintiff's condition if he had not taken the Panafcort. That inquiry is merely the obverse of the case that his symptoms were masked by that drug. That has always been the plaintiff's contention in this litigation. The very concept that the plaintiff's underlying condition could or might have been masked or disguised by the effects of the Panafcort prescribed by the defendant necessarily raises the question of what his condition would or might have been but for its ingestion. The plaintiff's clinical presentation is a function of whatever infection he may have been suffering from and the medical strategies and pharmacological measures that may have been taken to correct it. I am unable to accept that the alleged disruption to the case and to the defendant's preparation for the hearing could not and should not have been anticipated having regard to the way in which these proceedings have been conducted for some time. The amendments to the pleadings do not appear to me to do any more than formalise or regularise that fact. 3. The further evidence upon which the plaintiff should be entitled to rely is in a slightly different category. I made orders about that evidence on 26 July 2016. The plaintiff has not sought any formal variation of those orders. It has not otherwise been suggested to me that a variation is necessary. The defendant is entitled to proceed upon the reasonable assumption that the trial judge will apply my orders concerning the scope and extent of the plaintiff's evidence unless or until she or he is otherwise persuaded upon application that some different approach is warranted. 4. It will be evident that the prejudice to which counsel for the defendant referred at length during submissions appears to me to be more apparent than real. Sight should not be lost of the fact that this case has managed to assemble a very large group of very eminent specialist medical experts. I strongly suspect that the presenting factual context out of which these proceedings arise, including the so-called counter factual of recent importance, is not the most complicated diagnostic problem ever confronted by these practitioners. The Uniform Civil Procedure Rules and the imperatives of the Civil Procedure Act 2005 need to be applied practically and realistically. The literal application of these provisions should not produce an overly rigid or inflexible response to problems or situations that can be accommodated and solved with a modicum of common sense and reasonable goodwill. Adversary litigation should also not be permitted to disguise or obliterate the fact that the Court and the wider community have an interest in the efficient disposition of litigation. The particular sensitivities of the litigants are not always the best or only benchmarks by reference to which it is appropriate to arrive at a just result. This is a matter in which the parties are very well served by eminently qualified experts, so that the appropriate assistance will undoubtedly be provided to the Court when the matter is heard. To the extent that the defendant prays some particular accommodation to meet a prejudice that I may have too quickly brushed aside, it is inevitable that the trial judge will be made aware of it and be able at the appropriate time to make some proper allowance for it if required. Order 1. In the circumstances I make the following orders: 1. Grant leave to the plaintiff to amend his statement of claim in the form attached to the letter dated 20 July 2016 annexed to the affidavit of Natalie Aprea affirmed 20 July 2016 and marked "O". 2. The defendant's application to vacate the hearing scheduled to commence on 22 August 2016 is dismissed. ********** 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: 26 July 2016