Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651

Supreme Court New South Wales

Medium Neutral Citation: Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651 Hearing dates: 14 June 2019 Date of orders: 14 June 2019 Decision date: 14 June 2019 Jurisdiction: Common Law Before: Fagan J Decision: 1. The proceedings are stood over to 26 Jul 2019 at 9.30am. 2. The plaintiff is directed to file an expert medical report complying with rule 31.36 of the Uniform Civil Procedure Rules no later than 5pm on Friday 19 July 2019. 3. If order 2 is not complied with then on Friday 26 July 2019 the plaintiff will be required to show cause why her statement of claim should not be dismissed. 4. Costs of the hearing of the notices of motion and of the proceedings to date are reserved. Legislation Cited: Health Services Act 1997 (NSW) Category: Procedural and other rulings Parties: Ayan Abdi Hassan (plaintiff) Royal Prince Alfred Hospital (defendant) Representation: Counsel: N/A B Bradley (defendant)

Solicitors: Plaintiff self-represented Makinson d'Apice Lawyers File Number(s): 2018/00114499

Judgment 1. The plaintiff filed on 5 April 2018 a statement of claim for damages for alleged negligent provision of medical care by the Royal Prince Alfred Hospital. The named defendant in the proceedings is Royal Prince Alfred Hospital ("RPAH". The proper defendant would be the Sydney Local Area Health District, being a body constituted under s 17(1) of the Health Services Act 1997 (NSW). If the proceedings continue the plaintiff will be required to file an amended statement of claim naming the correct defendant. 2. Before the Court is a notice of motion filed by the defendant on 8 October 2018 seeking dismissal of the proceedings pursuant to r 31.36(3) of the UCPR on the ground that there has not been filed with the statement of claim an expert's report supporting essential elements of the plaintiff's alleged cause of action in negligence. 3. Three notices of motion filed by the plaintiff on 6 July 2018, 20 December 2018 and 15 April 2019 must also be determined. Those notices of motion seek a variety of orders for the discovery and production of documents, for the setting aside of directions made on 7 December 2018 and for supplementary discovery. During the hearing on 14 June 2019 the plaintiff also applied orally for leave to issue a subpoena in the form of a document which was marked exhibit A. The substantive claim 1. The plaintiff is self-represented and appeared in person on the hearing of the notices of motion. I have relied upon documents produced by the defendant to ascertain in broad terms the circumstances in which the negligence claim has been made. During 2014 the plaintiff's general practitioner Dr Kwok of Auburn referred her to Dr Teychenne who apparently has some expertise in neurology. The plaintiff had presented over the preceding two years with proximal muscle wasting of the lower and upper limbs associated with muscle weakness. Doctor Teychenne found her symptoms consistent with myopathy and/or dystrophy. 2. On 14 October 2014 he referred her to Dr Judith Spies at the RPAH neuromuscular section for consideration of a muscle biopsy and genetic studies. The plaintiff was duly seen by Dr Spies on 11 February 2015. Also attending the consultation with the plaintiff on that occasion were Dr Tracey Jankelowitz and Dr Evans, of the hospital's Institute of Clinical Neurosciences. 3. In Dr Spies' report of 11 February 2015 addressed to Dr Teychenne reference was made to extensive testing that had been carried out on the plaintiff. The report concluded as follows: At this point the diagnosis is unclear, although non-inflammatory myopathy or dystrophy appear likely. We have taken the liberty of arranging an MRI of the thigh and calves, repeated EMG and nerve conduction studies on the right side, electrocardiogram and transthoracic echo cardiogram and a muscle biopsy of the left deltoid and vastus lateralis. We look forward to following her [up] when the above investigations are available. 1. On 13 February 2015 Dr Evans on behalf of Dr Spies issued a written request to the RPAH's neurology laboratory (the staff of which included Dr Pamphlett) for "muscle biopsy deltoid + L vastus, histopathology." A letter of referral was also issued by Dr Evans, on behalf of Dr Spies, to Dr Stalley, an orthopaedic surgeon. The referral was for "muscle biopsy of left deltoid + vastus." This document is undated but it is reasonable to infer it was issued on about 13 February 2015. The biopsy, involving removal of muscle tissue, would have to be carried out under some form of anaesthetic. 2. On 23 March 2015, a pre-admission medical-anaesthetic assessment was carried out by Dr McKay and a form recording the result of the assessment was completed. This form described the proposed procedure as "muscle biopsy left deltoid [additional word not clear]". The quoted entry was handwritten. The additional word may be "+ vastus", which would be consistent with Dr Evans' referral documents. The plaintiff asserts that the word is "transtenes" which, so far as I am aware, and so far as the evidence shows, has no medical or other meaning. 3. On 23 March 2015 there was also completed a document entitled "IRO Admission and Discharge Planning Information". IRO stands for Institute of Rheumatology and Orthopaedics, which is a clinical service of the RPAH. The plaintiff asserts that it is a separate hospital. This document contained a block for insertion of "planned operation as stated by patient (if different from RFA discuss with VMO)". Handwritten words were inserted in that block as follows: "Biopsy left deltoid". 4. On 4 April 2015 Dr Afik Snir completed the fields in a "discharge referral power point" which was evidently an electronic or soft copy pro forma document. This was headed "Preliminary Report". It identified the plaintiff's general practitioner as Edward Lurie of George Street, Sydney. The defendant does not contend that Dr Lurie had anything to do with the plaintiff's care. It says that this entry is simply an administrative error in a preliminary document prepared in advance of the plaintiff's anticipated surgery. The evidence does not show which of the fields in this document were completed by Dr Snir. The "presenting problem" has been inserted in type "Muscle BX [biopsy] left deltoid transtenes". The defendant contends that the word "transtenes" must have been typed into this document as a transcription of the unclear writing on the pre-admission medical-anaesthetic assessment, to which I have earlier referred. The defendant says that this involved a misreading of that writing, which should have been transcribed as "+ vastus", not "transtenes". 5. An in-patient election form from the RPAH records contains the following typed election under which there appears the plaintiff's signature and the date, 7 April 2015. That was the date of the plaintiff's admission for surgery to have the muscle biopsy performed. The election as signed reads as follows: I elect to be admitted as public patient. I understand that I will be treated by a doctor(s) nominated by the hospital and will not be charged for hospital accommodation, medical services (clinical and diagnostic) and if applicable other services such as surgically implanted prostheses. 1. This document is counter-signed by a hospital employee, whose identity is not apparent on the evidence before the court. 2. Below the patient election, again signed by the plaintiff and dated 7 April 2015, is an entry which includes the following wording: I have received the in-patient election information sheet which provides information on my election decision. I have read and understood this election form and the in-patient election information sheet which explains how my election decision will affect me. I have also been provided the opportunity to ask questions of hospital staff concerning the in-patient election information sheet to assist with my understanding. 1. The plaintiff asserts that she only signed the portions of the inpatient election form as referred to in the preceding paragraph after her operation and whilst recovering from a general anaesthetic. 2. On 7 April 2015, Dr Afik Snir completed a request/consent for medical procedure/treatment which included the following: I, Dr Afik Snir, have discussed with this patient the various ways of treating the patient's present condition, including the following proposed procedure/treatment. Biopsy L deltoid + vastus muscles. I have informed this patient of the matters as detailed, including the nature, likely results and material risks of the proposed procedure or treatment. (The words in bold are handwritten) 1. That entry was signed by Dr Snir and dated by him. Below it, there appears in type-written form a full consent to the procedure referred to, including the following words: The above doctor and I have discussed my present condition and the various ways in which it might be treated, including the above procedural treatment...I request and consent to the procedure/treatment described above for me. I consent to anaesthetics, medicines or other treatments which could be related to this procedure/treatment...I consent to such tissue being used and/or stored for any medical, therapeutic or scientific purposes, in addition to purposes related to the diagnosis or management of my condition. I have had the opportunity to ask questions and I am satisfied with the explanation and answers to my questions. I understand that I may withdraw my consent. 1. This has been signed by the plaintiff and dated, apparently, by her. 2. Clinical notes made and signed by Dr Snir record that this document was completed by him and signed by the plaintiff at or shortly after 9.00am on 7 April 2015. The plaintiff alleges that she only signed it after the operation whilst feeling unwell. The operating suite nurse's report records that the plaintiff underwent her operation between 12.02pm and 12.30pm on 7 April 2015. 3. The theatre nurse's note also records that Dr Paul Stalley was the surgeon in charge, Dr Gkikas was the operating surgeon, the senior anaesthetist was Dr Jones (or James) and the assistant anaesthetist was Dr Allenby. The theatre nurse's report describes the operation performed as "muscle biopsy left deltoid and left vastus". The report states that specimens were sent out at 12.15pm having been taken from the left deltoid and left quadriceps. 4. There are other reports amongst the records produced by the defendant describing the operation as a muscle biopsy of the left deltoid and left quadriceps and confirming that Dr Paul Stalley was in charge and Dr Gkikas carried out the procedure. There are at least two anomalies in these records. One of them refers to a Dr David Goltsman as the operating surgeon. This is contradicted elsewhere. One record also gave the item numbers for the procedure as 5203 and 5206 which concern the removal of bone tumours. The defendant contends that these are administrative errors that have been subsequently corrected and that the procedure carried out was in fact a muscle biopsy from the deltoid and thigh. 5. On 16 April 2015 Dr Pamphlett reported to Dr Spies concerning the plaintiff, following his examination of "two pieces of fresh tissue received in two separate containers labelled as 'left deltoid' and 'left quadriceps'". In this report Dr Pamphlett expressed the following conclusion from his examination of the specimens: The features seen are mild and non-specific. No microscopic abnormalities are present in this muscle that can explain this patient's symptoms or signs. 1. On 23 April 2015 Dr Barton of the RPAH's Institute of Clinical Neurosciences reported, on behalf of himself and Dr Jankelowitz, to Dr Teychenne. A copy of the report was sent to the plaintiff herself and another copy was sent to Dr Kwok Chung Wan of Auburn. The report concluded as follows: Following discussion with Dr Jankelowitz we have explained to Ms Hassan there is no evidence of an inflammatory myopathy nor a myopathy that would respond to medical intervention. It is likely this is a genetic myopathy and we have requested dystrophins as previously mentioned. I asked Ms Hassan to find a GP in Canberra and to attend for physiotherapy for increased exercise and about education about safe movements. 1. On 15 April 2015, the department of radiology of the RPAH carried out an ultrasound examination of the plaintiff's left and right shoulders. Reports at that date, from Dr Schatz addressed to Dr Spies, contain the following conclusion with respect to the left shoulder: The rotator cuff tendons are intact and normal in appearance with no tear or significant tendinosis. There is no subacromial bursitis. 1. With respect to the right shoulder, it was reported: Mild subacromial bursitis. Rotator cuff tendons intact. Mild DJD right acromioclavicular joint.