Supreme Court New South Wales Medium Neutral Citation: Gary David Wood v Ali Ghoz and Ors [2017] NSWSC 1561 Hearing dates: 15 November 2017 Date of orders: 17 November 2017 Decision date: 17 November 2017 Jurisdiction: Common Law Before: Hamill J Decision: (1) Grant leave to the plaintiff to file an amended statement of claim provided that is in substantially the same form as the proposed amended statement of claim which is annexure D to the affidavit of Kenneth James Heasman sworn on 25 October 2017. (2) Pursuant to rule 21.12 Uniform Civil Procedure Rules, order that the third defendant comply with paragraph (2) of the Notice to Produce dated 22 August 2017 within 21 days of today. (3) Pursuant to rule 21.12 Uniform Civil Procedure Rules, the plaintiff has leave to serve a further Notice to Produce on the third defendant for (i) the third defendant's records for the surgical rosters of the first and second defendants on 25 March 2014 and (ii) records held by the third defendant relating to its decision to employ the first defendant including the first defendant's application for employment, his resume, qualifications and references. (4) The plaintiff is to pay the costs of the third defendant of and incidental to this notice of motion. Catchwords: CIVIL LAW – medical negligence – application to amend statement of claim – where no prejudice to the defendant – notice to produce – whether documents sought relevant to issues – "special reasons" – relevant considerations – whether amendment calculated to justify notice to produce – whether the tail is wagging the dog – costs – where success on notion dependant on amendment of statement of claim – where application to amend came after filing of notice of motion – where plaintiff largely succeeds on motion – in spite of success the plaintiff should bear the costs of the motion Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Haywood v Collaroy Services Beach Club [2005] NSWSC 1203 Jambrovic v Day [2017] NSWSC 1468 Keating v South East Sydney Illawarra Area Health Service, unreported Supreme Court New South Wales (Hall J) 7 July 2006 Priest v State of New South Wales [2006] NSWSC12 Category: Principal judgment Parties: Mr G Wood (Plaintiff) South Eastern Local Health District (Third Defendant/Respondent) Representation: Counsel: Mr A Lakeman (Plaintiff/Applicant) Mr S Kettle (Third Defendant/Respondent) Solicitors: Mr K Heasman (Plaintiff/Applicant) Curwoods Lawyers (Third Defendant/Respondent) File Number(s): 2017/00051141 Judgment 1. By notice of motion filed 28 September 2017 the plaintiff seeks: 1. An order pursuant to rule 21.12 Uniform Civil Procedure Rules (UCPR) compelling the third defendant to comply with a Notice to Produce dated 22 August 2017 within 21 days. 2. Leave pursuant to rule 21.1 UCPR for the plaintiff to serve a further Notice to Produce on the third defendant seeking the third defendant's records for the surgical roster of the first and second defendants on 25 March 2014. 1. The notice of motion also seeks such further orders as the circumstances of the case may require. In submissions, the plaintiff sought (under the umbrella of this general and standard order) leave to file and rely on an amended statement of claim. 2. The plaintiff's case is that he sustained bodily injury in the course of a hip replacement operation. He claims that the first, second and third defendants were negligent in the medical care they provided him and asserts that the physical injuries he suffered were caused by the defendants' negligence. The first and second defendants were the surgeons who performed the operation. The third defendant is the health service which runs the Prince of Wales Hospital where the operation was performed. The second defendant is a Visiting Medical Officer (VMO) at the hospital and was the more senior surgeon. The first defendant is also a qualified orthopaedic surgeon but was the more junior doctor and was under the supervision of the second defendant. The operation (to cut through the technical medical evidence) was in two parts. The first part of the operation was performed by the first defendant while the second part was performed by the second defendant. 3. There is a deal of evidence about the nature of the operation, and the two methods by which the first part of a hip replacement procedure may be undertaken. It is not necessary for present purposes to descend into very much detail about the surgical procedures involved. 4. The operation was performed on 25 March 2014 and very soon afterwards it became clear that the operation had not been a success. It seems not to be disputed that the sciatic nerve was lacerated and this caused some serious complications for the plaintiff. So much was clear very soon after the operation and there is a report from the second defendant dated 17 July 2014 explaining his opinion of what went wrong. Again, the detail is not significant but it is worth observing that the second defendant explained in his report that the problem occurred during the first part of the operation which was performed by the first defendant. The report included: "I advised [the plaintiff] that [the first defendant] was the orthopaedic hip fellow and was well skilled in hip replacement surgery having worked in the unit for the past nine months. I advised him that orthopaedic fellows at Prince of Wales are allowed to operate on patients provided they have the appropriate skills as was the case in [the first defendant]." 1. A number of expert reports were tendered as part of the evidence on the notice of motion including the report by second defendant and three reports prepared by the parties for the litigation in 2015, 2016 and 2017. 2. The Statement of Claim was filed on 17 February 2017. The particulars of negligence were pleaded as follows: 1. Failing to provide adequate information regarding the potential risks of the surgery. 2. Failing to explain or adequately explain the risks of the surgery. 3. Failing to advise the Plaintiff of the relative merits of the anterior and posterior approaches to hip surgery. 4. Failing to exercise due care and diligence in the surgery. 5. Failing to protect the Plaintiff's sciatic nerve during the surgery. 6. Failing to carry out the procedure in such a way as to protect the sciatic nerve during the osteotomising of the femoral neck. 7. Carrying out and permitting to be carried out the procedure by way of an osteotomy before dislocation the hip. 8. Failing to ensure during the surgery that the hip was sufficiently dislocated to allow the relaxation of the posterior capsule and the quadratus femoris muscle. 9. Failing to ensure during surgery that the posterior capsule and other soft tissues were protected by appropriate retractors. 10. Failing to carry out the surgery by way of the posterior procedure rather than the anterior procedure so as expose the sciatic nerve visual checking intraoperatively. 11. The Plaintiff relies on the doctrine of res ipsa loquitur. 1. There was no assertion in the statement of claim that the first defendant was not sufficiently experienced to perform the operation or that the second defendant failed to adequately supervise the second defendant. It is in that context that the third defendant refused to produce any documents in response to the Notice to Produce dated 22 August 2017 seeking: 1. All records of employment by you whether permanent, contractual or any other basis of Dr Ali Ghoz; and 2. All records of Dr Ghoz's qualifications, work experience and training from the date of his employment with you until the date of his resignation/termination. 1. The solicitor for the defendants indicated that the third defendant did not intend to comply with the Notice to Produce. The reasons were essentially twofold. First it was said that the material sought to be examined was not relevant to the proceedings. Second, it was asserted that there were no references to the documents in the originating process, pleadings, affidavits or witness statements. 2. On the basis of the case pleaded in the original statement of claim, that stance appeared to be justified. Rule 21.12 UCPR is in the following terms: "21.12 Personal injury claims In any proceedings on a common law claim: (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, a party is not required to comply with a notice to produce in relation to a document or thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party unless the court, for special reasons, orders otherwise." 1. It is correct, as asserted in the solicitor's letter, that the material sought to be produced formed no part of the pleadings or other material served to that point in the proceedings. It was also (at least) arguable that the material was not relevant to the issues as joined in the original pleadings. 2. However, the second defendant was originally represented by different solicitors and those solicitors sent a request for particulars on 19 April 2017. In responding to those particulars, the plaintiff asserted (amongst other things): 1. That the second defendant told him that he (the second defendant) performed the procedure "all the time" and that it was "no big deal". 2. That the consent form (which no doubt involved consent to a different surgeon performing some or all of the operation) was signed hurriedly shortly before the operation. 3. That he was not advised that a different doctor might carry out part of the procedure and believed that the second defendant would perform the surgery. 4. He was not advised that part of the operation wold be carried out "by an intern" or by "a junior doctor who would not have the [second defendant's] expertise." 5. That the second defendant "inadequately supervised" the first defendant's conduct of the operation. 1. It appears to have been in the context of these additional particulars that the defendants' medical experts provided their opinions. Those opinions included a report dated 16 May 2016 by Dr Ian Harris, a professor of orthopaedic surgery who said (relevantly): "The performance of the surgery by [the first defendant], the orthopaedic fellow, given his level of experience and the presence of Dr Solomon in the hospital, was reasonable and also reflected common practice." 1. Associate Professor James Sullivan provided two reports dated 7 and 18 August 2017. It set out the way in which a surgeon becomes "fully trained" in order that they might perform the operation independently. He described this as "a long and graded process". The report included observations such as: "If a Fellow in the unit has been in a unit for an adequate time and is considered adequately skilled and experienced to perform the femoral neck osteotomy unsupervised, then it is reasonable for the [second defendant] to join the operation for the bone preparation and implant placement …" (Emphasis added) "Provided that [the second defendant] was confident that the Fellow was fully instructed in the technique and had supervised him performing the section of the operation on a number of occasions and had satisfied himself that the Fellow was skilled and safe, I consider it was reasonable that Dr Solomon was not present at that stage of the procedure." "I note at the time in question [the first defendant] was a qualified orthopaedic Surgeon from the UK working as a Fellow with [the second defendant]. [The second defendant] states that [the first defendant] was a very competent surgeon and he was extremely happy for him to operate with limited supervision. [The first defendant] had previously performed a total hip replacement via the anterior approach competently without supervision the previous week." 1. The proposed amended statement of claim raises a number of additional allegations and particulars of negligence which were not included in the original statement of claim. The additional particulars are: "22. The First Defendant was not by his training and experience a surgeon suitable for the carrying out of the procedure upon the Plaintiff either under supervision or at all. Particulars The First Defendant had only been employed by the Third Defendant in its Orthopaedic Department for nine months The Defendant was an overseas graduate obtaining additional experience from Australian surgeons. 23. The further grounds of negligence and breach of retainer pleaded against the Second and Third Defendants are: The failure to advise the Plaintiff that the surgery would be carried out by a surgeon other the [sic] Second Defendant, Dr Solomon. Failure to obtain the Plaintiff's consent to be treated by the First Defendant Dr Ghoz. Failure by the Second and Third Defendants to ensure that visiting surgeons such as the First Defendant Dr Ghoz received supervision and were aware of the high standard of patient care which is required by the Australian health system. The failure of the Second Defendant to carry out the procedure personally after representing to the Plaintiff that he would perform the procedure." 1. In the course of submissions on the notice of motion, counsel for the defendants properly acknowledged that if those particulars formed part of the original statement of claim it would have been more difficult to resist the Notice to Produce. In my view, the documents in paragraph 2 of the Notice to Produce are relevant to the issues thrown up in the amended statement of claim. 2. The defendants submitted that the "tail was wagging the dog" in the sense that the amended statement of claim was calculated to justify the Notice to Produce. I am unable to accept that submission. The response to the request for particulars made by the second defendant's original lawyers predated the Notice to Produce by some months and clearly made allegations of a similar nature to those particularised in the proposed amended statement of claim. 3. The case has yet to be given a hearing date and the defendants could point to no particular prejudice arising from the amendment to the statement of claim apart from (i) the issue of cost and (ii) the fact that the first defendant, from whom instructions will need to be taken, now resides overseas. Counsel fairly acknowledged that in modern times communicating with a person overseas does not present any insurmountable obstacle to communication. 4. The parties are entitled to have all of the relevant issues ventilated in the proceedings. In the absence of any prejudice to the defendants, the plaintiff should have leave to file an amended statement of claim which raises the issue of the adequacy of the first defendant's qualifications to perform the surgery, the adequacy of the supervision by the second defendant of the first during the operation and the question of whether the plaintiff provided informed consent to a less experienced surgeon carrying out the procedure. It may be that the defendant is correct that the signed consent is a complete answer to the latter issue but that does not mean that the plaintiff should be prevented from litigating the issue. 5. Once it is accepted that the plaintiff should have leave to amend its pleading, its task in obtaining the first and second orders sought in the notice of motion – that is, orders compelling the third defendant to comply with the Notice to Produce dated 22 August 2017 and leave to serve a further Notice to Produce – becomes easier. The significant obstacle of relevance is removed. [1] However, the plaintiff must still establish that there are "special reasons" to require production of the documents. In personal injuries cases, the UCPR contains similar rules for both discovery and notices to produce. [2] In Keating v South East Sydney Illawarra Area Health Service, [3] Hall J made a number of relevant observations relating to interrogatories that had been served in a medical negligence case. I have considered what his Honour had to say and have also considered the helpful observations of Rothman J in Haywood v Collaroy Services Beach Club [4] and Johnson J in Priest v State of New South Wales. [5] 6. Subject to modification of paragraph 1 of the Notice to Produce, I am satisfied that special reasons exist for the orders sought for the following reasons. First, the case is a medical negligence case and, on the material I have seen, more complex than the average personal injuries case contemplated by the r 21.12. [6] I hasten to add that the pigeon holing of a matter as a "medical negligence case" does not have any automatic consequences in the operation of rules 21.8 or 21.12. Secondly, the material sought to be produced is largely or peculiarly within the knowledge of the third defendant. [7] Third, based on the material before the Court on the motion, the information and documents are likely to be relevant either to a conclave of experts or cross-examination of the experts when the matter proceeds to final hearing. Fourth, the material would be difficult for the plaintiff otherwise to obtain and becoming aware of it at the time of the final hearing may operate unfairly to him. Fifth, the "plaintiff should not be deprived of…important, relevant and potentially significant information" until the time of the trial. [8] 7. In making these determinations, I have considered the defendants' submission that, in the end, the question at trial will be whether or not the operation was performed with the skill expect of the reasonable orthopaedic surgeon. Even allowing for that, the material the plaintiff seeks is relevant to the issues to be contested at trial and there are special reasons why the he should have access to it. [9] 8. However, I accept the third defendant's submission that the first paragraph of the Notice to produce is too widely framed. The plaintiff acknowledge this and submitted that what was really being sought by that paragraph was the information available to the third defendant at the time it employed the first defendant – "his application, resume and other things he would have supplied to the hospital to convince them to put him on as a registrar". [10] I do not propose to enforce paragraph 1 of the Notice to Produce but I will expand the order sought in prayer 2 of the notice of motion to encapsulate what seems to be a further important category of document that would only be held by the third (or, I suppose, first) defendant. 9. The final question concerns who should pay the costs of the notice of motion. The plaintiff suggested that the costs should be the costs in the cause. However, while the plaintiff has succeeded in respect of most matters litigated on the Notice of Motion, that success was predicated on the success of its application to amend the statement of claim. That amendment was not foreshadowed before the Notice to Produce was filed and was not one of the orders originally sort in the Notice of Motion. Counsel for the third defendant adopted a reasonable and principled stance when asked whether the Notice to Produce should be enforced if the amended statement of claim was allowed. It may be that the Notice of Motion would not have proceeded at all had the plaintiff sought to amend the statement of claim first and then served the Notice to Produce. Certainly, the material upon which the plaintiff relies in seeking to amend the statement of claim was known long before the issues surrounding the Notice to Produce arose. In these circumstances, and in spite of his success on most issues argued before me, the plaintiff should bear the costs of the motion. 10. Accordingly I make the following orders: 1. Grant leave to the plaintiff to file an amended statement of claim provided that is in substantially the same form as the proposed amended statement of claim which is annexure D to the affidavit of Kenneth James Heasman sworn on 25 October 2017. 2. Pursuant to rule 21.12 Uniform Civil Procedure Rules, order that the third defendant comply with paragraph (2) of the Notice to Produce dated 22 August 2017 within 21 days of today. 3. Pursuant to rule 21.12 Uniform Civil Procedure Rules, the plaintiff has leave to serve a further Notice to Produce on the third defendant for (i) the third defendant's records for the surgical rosters of the first and second defendants on 25 March 2014 and (ii) records held by the third defendant relating to its decision to employ the first defendant including the first defendant's application for employment, his resume, qualifications and references his resume, references and similar documents. 4. The plaintiff is to pay the costs of the third defendant of and incidental to this notice of motion. ********** Endnotes 1. As to the relevance of the first defendant's skill and experience, see for example Jambrovic v Day [2017] NSWSC 1468. 2. Compare UCPR r 21.8 and 21.12. 3. Keating v South East Sydney Illawarra Area Health Service, unreported Supreme Court New South Wales (Hall J) 7 July 2006. 4. Haywood v Collaroy Services Beach Club [2005] NSWSC 1203. 5. Priest v State of New South Wales [2006] NSWSC12. 6. Keating at [28]. 7. Haywood at [15]. 8. Keating at [17] 9. Again, see Jambrovic v Day. 10. Transcript p 25. 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: 17 April 2018