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. Plaintiff's claims 1. From the plaintiff's statement of claim, I can discern only the following allegations of breach of duty of care on the part of the defendant: (1) That although she signed a consent for biopsy of only the left deltoid, to be carried out by a general surgeon under local anaesthetic, a biopsy was done of both the left deltoid and the left quadriceps and was carried out other than by a general surgeon and under only local anaesthetic. (2) That she was asked to sign the consent for the muscle biopsy referring to both the left deltoid and left vastus only after the operation had been conducted and whilst she was under the influence of general anaesthetic and when her husband was absent from the ward on which she was recovering. (3) That her surgical wounds were not properly sutured or dressed or treated, and that she suffered a nerve injury to her left leg consequent upon the procedure carried out in respect of the left vastus. 1. In the course of the hearing, the plaintiff informed the Court that she wished to expand her particulars of negligence. She gave the following list which overlaps to some extent with what already appears in the statement of claim: (1) She consented to a muscle biopsy of her left deltoid only and gave no consent for the biopsy of the left quadriceps which the RPAH says it carried out. (2) She consented only to local anaesthetic but a general anaesthetic was administered. (3) The procedure was done by Dr Gkikas, Dr Snir and Dr Goltsman, and the anaesthesia was administered by Dr Allenby, all of whom, the plaintiff alleges, were not qualified doctors but medical students. (4) The RPAH failed to suture the plaintiff's surgical wounds or to provide adequate preoperative or postoperative care to avert infection of those wounds. (5) Instead of a muscle biopsy being performed on her left deltoid, open surgery on her left rotator cuff tendons was carried out. (6) The procedures on her left arm and left leg were not merely muscle biopsies, but were procedures for removal of bone tumours and the RPAH fabricated a false referral to itself from Dr Edward Lurie for the performance of the bone tumour removal procedure. (7) The RPAH failed to diagnose the plaintiff's condition. (8) RPAH permitted tissue extracted from the plaintiff to be used for research by Professor Barnett, Professor Pamphlett, Dr Salemajar, Professor Ng and Professor Kapoor without having advised the plaintiff that this would occur without having obtained her consent. Plaintiff's claim for discovery and/or leave to issue a subpoena 1. During an interlocutory hearing before R A Hulme J on 7 December 2018, the plaintiff asserted that she was unable to provide any medical expert report in support of her case as required by rule 31.36 in the absence of a complete copy of the defendant's records relating to her treatment and care. In those circumstances, directions were made by his Honour on 7 December 2018, amongst others, as follows: (1) Defendant to serve on the plaintiff in accordance with UCPR rule 21.3 a verified list of all documents in possession, custody or control falling within the categories of documents identified at paragraphs 5, 6 and 7 of the plaintiff's notice of motion by 21 December 2018. (2) Plaintiff to file and serve an expert report in accordance with UCPR rule 31.36 by 15 March 2019. 1. The defendant has supplied what it says are copies of all of its records. These have been exhibited to affidavits read on the hearing of the notices of motion and they appear complete. There are no indications of omissions, such as documents containing cross-references to others that have not been produced, or an absence of categories of documents that one would expect to see. A sworn affidavit verifying the discovery has been provided by the defendant. What has been produced provides a full understanding of what the defendant recorded as having occurred in the treatment of the plaintiff. The defendant says that its case will be that these documents are accurate as to the events, subject to some anomalies of record-keeping, to which reference has already been made. The defendant says that the anomalies can be explained and that, broadly, the records describe what occurred in the procedure performed upon the plaintiff. 2. For reasons I will give shortly, I do not consider that any further provision of documents by discovery or under subpoena is necessary in order for the plaintiff to be able to provide a report under rule 31.36 as she should have done at the time of filing her statement of claim. Such a report must now be given if the proceedings are to continue either on the existing statement of claim or on any amended pleading that may incorporate the expanded particulars of negligence, to which I have referred. Defendant's notice of motion 1. Rule 31.36 provides as follows: (1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting: (a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and (b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and (c) the causal relationship alleged between such breach of duty or obligation and the damage alleged. (2) In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert's report or experts' reports supporting the claim. (3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate. (4) Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial. (5) Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion. (6) Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence: (a) has been filed and served under subrule (1) or (2), or (b) has been served pursuant to directions given under subrule (4). 1. Referring to the plaintiff's expanded list of particulars of negligence and retaining the numbering of those particulars as already given, a medical expert could, on the available material, at least, express opinions on the following matters: 1. Assuming that there were carried out muscle biopsies on both the left deltoid and the left thigh, would performance of the biopsy on the left thigh cause any damage or detriment to the plaintiff and are there any indications on examination of her that any such damage or detriment was in fact sustained? Would the performance of a muscle biopsy on the left thigh in addition to the left deltoid be desirable in the interests of securing adequate tissue samples for the purpose of testing in order to attempt to diagnose the signs and symptoms of which the plaintiff was complaining? 2. On the assumption that the plaintiff only consented to a local anaesthetic, could a muscle biopsy satisfactorily be performed with anaesthesia limited to that form? On the assumption that in fact the plaintiff was administered a general anaesthetic, has she suffered any damage or detriment in consequence? 3. It is not apparent that any expert could express an admissible opinion on the status of staff employed by the RPAH as either qualified doctors or students. 4. From examination of the plaintiff, is there any indication that there was a failure to suture or otherwise close the surgical wounds that resulted from whatever procedures were carried out on 7 April 2015? Is there any evidence that the plaintiff has suffered any damage or detriment as a result of a failure adequately to suture the wounds? Is there any indication from examination of the plaintiff or from taking her history that she sustained infection or other damage and that this was as a result of inadequate pre-or post-surgical care? 5. On examination of the plaintiff, does it appear that in fact there was carried out on her left shoulder open surgery of the left rotator cuff? Does it appear that there was any procedure carried out on the left upper arm or shoulder of any nature different from or additional to a muscle biopsy of the deltoid? In either case, has the plaintiff suffered any physical damage and if so what? 6. Is there any evidence from physical examination of the plaintiff that the operation on either her left upper arm or her left upper leg included a bone tumour removal? 7. From such diagnostic information as is available from the RPAH records and/or from examination of the plaintiff, what diagnosis of her condition can be made at present and what diagnosis can it be inferred was open and should have been arrived at as at April 2015 or shortly thereafter? Is there any indication that RPAH failed to arrive at the appropriate or correct diagnosis and/or that it fell short of reasonable medical care in that respect? 8. It does not appear that a medical expert could contribute any relevant opinion to the question of whether consent was or was not given for the use of the plaintiff's tissue in research or whether that in fact this occurred. 1. From the above list, it is in my view apparent that an expert could give a material opinion for the purpose of satisfying r 31.36 on the basis of the material as presently available. The plaintiff's insistence that such a report could only be obtained if she were to acquire more documents from the defendant is erroneous. 2. At the conclusion of submissions I pressed the plaintiff to tell me whether, on the assumption that I would not order the defendant to produce any more documents or grant leave to issue a subpoena, she would ask for time within which to obtain the medical report required by r 31.36. The plaintiff, obstinately maintained that this would be impossible without further documents as she has sought. I impressed upon her my own view that that was not so and that it would be essential for her to obtain and serve such a report in order to comply with r 31.36. I further informed her that the proceedings would be dismissed if such a report should not be obtained. I took this position because it appears to me, on the face of the documents, that the particulars of negligence that the plaintiff wishes to maintain are certainly not self-evident and may be said to be at the least contestable. 3. There appear to me to be numerous documents which corroborate and reinforce that what was carried out on 7 April 2015 was muscle biopsy of the left deltoid and left thigh and that this was what was always proposed from the time of Dr Evans' referral to Dr Stalley on 11 February 2015. The documents tend to show that the intent to carry out a biopsy of the left deltoid and vastus was never wavered from. 4. The report of the operating suite nurse recording the nature of the procedure that was carried out is, prima facie, strong evidence of what was done. The fact that she refers to specimens transmitted from the operating theatre to the laboratory, during the course of the operation, at 12.15pm on 7 April 2014, and that Dr Pamphlett reported upon samples which he recorded as having been taken from the muscles of the deltoid and vastus all indicate that that is what occurred. Of course, it is always possible that such records may be completely erroneous. This will be a matter of fact to be determined on the whole of the evidence, if the proceedings go ahead. 5. It is not apparent to me how the plaintiff would disprove the weight of these documents. But, assuming that it is a possibility, there remains the question of what, if any, damage has been caused by whatever procedure was carried out. There is also the question of whether there is any substantiation of the plaintiff's allegations that there were carried out quite considerably more invasive procedures than merely two muscle biopsies. That is, her claims that she involuntarily underwent open surgery of the left rotator cuff tendons and procedures for removal of bone tumours. 6. In view of the stark contrast between the plaintiff's allegations and the state of the defendant's records, in my view this is a case in which the requirement of a medical report under r 31.36 is particularly important. Where a litigant in person is conducting such proceedings it is most important that medical professionals and a hospital should not be subjected to the protracted conduct of a dispute unless there can be shown at the outset some medical opinion to support the claim that is being made. 7. The plaintiff having indicated that she wishes to expand her particulars of negligence, in other circumstances the Court would usually be willing to allow an amendment. However, it would be futile to grant leave to amend if the plaintiff is not going to produce a report under r 31.36 which would support the statement of claim with the more expanded list of particulars. If the plaintiff should adhere to her position that she simply cannot and will not produce an expert's report, in circumstances where I have indicated that I will not order the provision of any further documents, then the appropriate course would be to strike the proceedings out. Despite the plaintiff's obstinate insistence about this, I have determined that it will be best to allow her a further 5 weeks within which to obtain an expert's report under the rule. 8. These reasons are given orally at the conclusion of the hearing and will be revised and distributed to the parties within the next few days. The plaintiff is urged to read the reasons carefully. It is evident from the documents she has filed that she has, at some stage in preparation for this case, had some measure of legal advice. If she intends to obtain further legal advice with respect to her claim this would be the time to obtain it. She has been urged to obtain such advice repeatedly. It is apparent that she is entirely out of her depth in attempting to conduct this case and that has been pointed out to her. 9. The purpose of allowing a further five weeks is to give a clear four weeks from when the plaintiff has a settled copy of the reasons. This will facilitate her taking legal advice, if she sees fit, on whether to obtain a report which would satisfy the requirements of r 31.36 and to proceed to get such a report if she is so minded to do so. 10. Again with great obstinacy, the plaintiff has pressed for more time than five weeks. She has asked for three months within which to file a report. That has been refused. This case has been on foot for over a year and has, effectively, made no progress. The defendant has been unable to file a defence and has not been required to do so in the absence of a report under r 31.36. It has been made very clear to the plaintiff on numerous occasions that this report is essential and that the rule must be complied with. She has had plenty of time within which to satisfy the requirement. An extension of another five weeks is a considerable indulgence to her; no more will be allowed. 11. If no report satisfying the rule is received within the five weeks then I propose to re-list the matter and hear anything that the plaintiff may seek to argue as to why the proceedings should not be struck out. If such a report is filed then, on the re-listing of the matter, I will hear any argument as to time for the provision of an amended statement of claim. If the plaintiff wishes to seek leave for amendment and should that occur, I will give any other directions as required. I propose to case manage the proceedings from this point. Orders 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 5.00pm 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. ********** 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 November 2019