Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2017] NSWSC 1512

Supreme Court New South Wales

Medium Neutral Citation: Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2017] NSWSC 1512 Hearing dates: 3 November 2017 Date of orders: 07 November 2017 Decision date: 07 November 2017 Jurisdiction: Common Law Before: Harrison J Decision: (1) The plaintiff's notice of motion should be dismissed. (2) The costs of the motion should be the costs in the proceedings. Catchwords: PRACTICE AND PROCEDURE – plaintiff's motion to administer further interrogatories – where plaintiff wishes to avoid an evidentiary hiatus – whether further interrogatories are necessary or justified under UCPR 22.1 – where defendant's position obviates the need for the proposed interrogatories Legislation Cited: Uniform Civil Procedure Rules Category: Procedural and other rulings Parties: Phillip Coffey by his tutor Kathleen Amanda Coffey (Plaintiff) Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service (Defendant) Representation: Counsel: A J Bartley SC with JA Hillier (Plaintiff) R Cheney SC with J Downing (Defendant)

Solicitors: Commins Hendriks Pty Ltd (Plaintiff) Curwoods Legal Services Pty Ltd (Defendant) File Number(s): 2011/108788 Publication restriction: Nil

Judgment 1. HIS HONOUR: The plaintiff was born prematurely at Wagga Wagga Base Hospital on 19 January 2004. He alleges that certain serious problems that now afflict him resulted from a failure by the defendant to transfer his mother to a tertiary hospital in Canberra for appropriate antenatal management before this occurred. His mother had been an inpatient at the hospital since 4 January 2004. She was seen at the defendant's antenatal clinic on 14 January 2004. 2. These proceedings were commenced on 31 March 2011. They are now listed for hearing commencing on 20 November 2017 with a ten day estimate. 3. The proceedings were previously listed to commence on 26 October 2015. However, on the plaintiff's application, that date was vacated by Wilson J, who also granted leave to the plaintiff to interrogate the defendant about certain matters, including Drs Bunting and Follett concerning their consultations, if any, with a visiting medical officer or other senior doctor and any consideration that may have been given to transferring Ms Coffey to the Canberra Hospital. 4. Since then the parties have conducted this litigation industriously, with a view to having the proceedings litigated as a contested matter on all issues. This is apparent from the terms of the affidavit of Ms Jacqueline Anne Marie Fox sworn 3 November 2017 and the considerable material exhibited to it. The latest step in the proceedings would appear to have been the convening of the joint conference of obstetric experts on 23 October 2017. The experts' report from that conference is not yet available. For all relevant intents and purposes, the proceedings are otherwise ready for hearing. 5. However, by letter dated 16 October 2017, Ms Cassandra Hanlon, the solicitor for the plaintiff, wrote to Ms Fox enclosing "by way of service" proposed further interrogatories. She inquired whether the defendant consented to the administration of the interrogatories. The short answer was no. The plaintiff's motion to administer the further interrogatories therefore came before me on 3 November 2017. 6. The burden of the plaintiff's concerns centres around the question of whether or not the defendant conformed to what he asserts was an applicable protocol for referral to a tertiary hospital in circumstances similar to those that applied to his mother in January 2004. Ms Coffey had had several prior successful pregnancies that did not go to full term so that premature delivery was anticipated. The plaintiff contends that the defendant should have followed a NSW Health Department publication entitled Protocols for Administration of Tocolytic Agents (Intravenous Salbutamol or Oral Nifedipine) for Threatened Preterm Labour. The aim of tocolysis is described in that document in the following terms: "The aim of tocolysis is to delay preterm delivery to allow time for maternal administration of corticosteroids and in-utero transfer to a tertiary perinatal centre, thereby reducing neonatal morbidity and mortality. In other circumstances tocolysis should be used only rarely and for periods not exceeding 48 hours, as there is no clear evidence that prophylactic or maintenance drugs improve outcome following threatened preterm labour." 1. It would appear not to be in issue that the defendant administered the tocolytic agents in accordance with the protocol. The plaintiff complains that in the period that followed, when labour had apparently been temporarily forestalled or delayed, the defendant did not also transfer his mother to the Canberra Hospital as it should have done. That alleged failure lies at the heart of the plaintiff's complaints of antenatal mismanagement by the defendant in these proceedings. 2. The defendant has served a further supplementary statement of Dr Michael Bunting dated 15 September 2017. Dr Bunting has made two earlier statements on 11 August 2015 and 10 December 2015. Paragraphs 14 and 15 of the supplementary statement are in these terms: "14. Prior to January 2004, when working as an RMO, and in 2007 when working as a registrar, at Wagga Wagga Base Hospital, I from time to time had to telephone The Canberra Hospital to request that a patient be accepted for transfer. Typically such calls were fielded by a registrar at The Canberra Hospital. Some transfers that I requested were not accepted because the registrar or more senior clinicians at The Canberra Hospital did not agree that there was a clinical need for transfer. 15. During my three years as a registrar at The Canberra Hospital (to which I refer in paragraphs 64 and 65 of my first statement) I fielded numerous calls from regional hospitals, including Wagga Wagga Base Hospital, seeking to transfer obstetric patients to The Canberra Hospital. On many such occasions the patient was not accepted for transfer, either because I, or the consultant with whom I discussed the request, was not satisfied there was a clinical necessity." 1. Very shortly after receipt of that supplementary statement, on 21 September 2017, the plaintiff's solicitor wrote to the defendant's solicitor in the following relevant terms: "In relation to the statement of Dr Michael Bunting dated 15 September 2017 we are instructed to request detailed particulars of the patient request transfers and where relevant the reason for non-acceptance of the transfer by the Canberra Hospital as referred to in paragraphs 14 and 15 of [that statement]." 1. Ms Fox replied to that request by letter dated 16 October 2017 in the following way: "We refer to your letter of 21 September 2017 and my response of 25 September 2017. We apologise for our delay in responding. In the recent flurry of correspondence in this matter, the issue unfortunately escaped our attention. In view of the passage of time, Dr Bunting is unable to recall the specific instances when he (while working at Wagga Wagga Base Hospital) sought transfer to the Canberra Hospital but such transfer was not accepted. Dr Bunting cannot now recall the reasons for non-acceptance in those instances. Similarly, in view of the passage of time, Dr Bunting is unable to recall the specific instances when he (while working at the Canberra Hospital) received calls from regional hospitals seeking possible transfer, but such transfer was not accepted. Dr Bunting cannot now recall the reasons for non-acceptance in those circumstances." 1. Having regard to Dr Bunting's statement concerning this particular issue, and to Ms Fox's letter providing particulars as requested, the plaintiff perceives that there remains a potential evidentiary hiatus that he wishes to avoid by the administration of further questions. The defendant has opposed this course upon the basis that the plaintiff has already administered interrogatories and that he has not demonstrated that an order for further interrogatories is necessary or that special reasons exist that justify the making of the order as required by UCPR 22.1. 2. The particulars of negligence pleaded by the plaintiff include allegations that the defendant failed properly or adequately to assess his mother during the course of her pregnancy, failed to have proper or adequate systems, guidelines or protocols in place in relation to the treatment of women in premature labour and that it failed to transfer her to a tertiary hospital once contractions commenced on 4 January 2004. Those allegations have been in play since the original statement of claim was filed on 31 March 2011. 3. In statements now served by the defendant from Drs Bunting, Follett, Currie and Stewart, each of whom played an important role in the assessment and management of the plaintiff's mother's antenatal care at the relevant time, each doctor says specifically that it is and remains their opinion that transfer of the plaintiff's mother to the Canberra Hospital (or its equivalent) was not indicated. I take those statements of opinion to mean that Ms Coffey's condition, and that of her unborn child, were not such as to indicate or to require the removal of her to a tertiary institution for medical or other care or attention that could not be provided to her at the time by the Wagga Wagga Base Hospital. It follows, upon my understanding of those statements, that an affirmative decision not to transfer Ms Coffey to the Canberra Hospital was taken by one or other of these doctors and that decision was never altered before the plaintiff's birth. 4. The proposed interrogatories direct attention to whether transfer to a tertiary hospital was considered in January 2004. For example, interrogatory 3 asks whether any request was made by the defendant to a tertiary hospital for transfer and consultation regarding management of Ms Coffey between 4 January 2004 and 19 January 2004. Interrogatory 7, to similar effect, asks whether arrangements were made or sought to be made, for the in-utero transfer of Ms Coffey [sic] to a tertiary perinatal centre following the administration of Adalat and Celestone on 4 and 5 January 2004. Interrogatory 9 asks whether any requests were made for the transfer of Ms Coffey to a tertiary perinatal centre. Several other proposed interrogatories are to a like or similar effect. 5. As will be apparent, the defendant has indicated that in the opinion of its specialist medical officers, referral to a tertiary hospital was not called for in this case. Whether that opinion ultimately carries the day, having regard to the competing medical opinions in this case, remains to be seen. The defendant has also indicated that Drs Bunting, Follett, Currie and Stewart have been required for cross-examination and, by necessary implication in the present context, that their statements will be relied upon at the hearing. In that sense the defendant has placed all of its eggs in the basket of whether the decision not to refer Ms Coffey to the Canberra Hospital was or was not clinically correct or medically indicated, and by implication that an available choice to request a transfer to the Canberra Hospital was not made. In those circumstances it becomes completely irrelevant, and so is entirely beside the point, whether Dr Bunting, or anyone else for that matter, had had experience with the Canberra Hospital when requests for transfer of patients had been rejected. The defendant's position on this application, indicating clearly that a decision not to transfer Ms Coffey to the Canberra Hospital was made by the medical specialists in Wagga Wagga at the time, renders the material in paragraphs 14 and 15 of Dr Bunting's further supplementary statement of 15 September 2017 entirely inadmissible: it does not go to a remaining issue in the proceedings. 6. For the same reasons, the proposed interrogatories are not of any utility. The evidence reveals that the defendant knew about the possibility of transfer of certain obstetric patients to a tertiary institution in appropriate cases. The defendant says this was not such a case. The questions of whether that decision was correct, and the consequences for the plaintiff's case if it was not, remain issues for the trial. The defendant's unqualified disavowal of the need to transfer Ms Coffey to Canberra entirely obviates the need for the proposed interrogatories. 7. It follows in my opinion that the plaintiff's notice of motion should be dismissed. The costs of the motion should be the costs in the proceedings.