Supreme Court New South Wales Medium Neutral Citation: Hassan v Sydney Local Health District [2019] NSWSC 1652 Hearing dates: 18 October 2019 Date of orders: 28 November 2019 Decision date: 28 November 2019 Jurisdiction: Common Law Before: Fagan J Decision: 1. Plaintiff's claim dismissed in part for non-compliance with r 31.36. 2. Order for separate determination of a question with respect to balance of proceedings and directions for service of evidence. Legislation Cited: Health Services Act 1997 (NSW) Cases Cited: Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651 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 Publication restriction: No Judgment 1. Before the Court is a notice of motion filed by the plaintiff on 10 October 2019 seeking leave "to issue subpoenas and then to amend the statement of claim". Leave is required under r 7.3(1) of the Uniform Civil Procedure Rules ("UCPR"). The substantive proceeding is a claim in medical negligence pursuant to a statement of claim filed on 5 April 2018. No draft of an amended statement of claim has been proffered by the plaintiff. The plaintiff has tendered a draft subpoena addressed to Dr R Jones, Medicolegal Section, Medical Records Department, Royal Prince Alfred Hospital and Institute of Rheumatology and Orthopaedics. 2. The plaintiff has been self-represented throughout the proceedings, with the exception of the period from 26 July 2019 to 27 September 2019, during which time she had a solicitor on the record. The plaintiff's present notice of motion contains submissions in support of the leave that she seeks, including references to statutes, rules and authorities. The notice of motion is supported by affidavits of the plaintiff affirmed on 10 October 2019 and 18 October 2019. 3. The Royal Prince Alfred Hospital ("the Hospital") is named in the plaintiff's pleading as defendant but it is not a legal entity against which an action in negligence can appropriately be brought. Pursuant to ss 7 and 17 of the Health Services Act 1997 (NSW) the statutory corporation that should be joined as defendant in proceedings alleging negligence in the provision of health care at the Royal Prince Alfred Hospital is the Sydney Local Health District. This has been pointed out to the plaintiff by the defendant and confirmed to her by the Court on a number of occasions. 4. The plaintiff has disregarded what she has been told in this respect and insists that not only the Royal Prince Alfred Hospital but also the Institute of Rheumatology and Orthopaedics should be named defendants. The Hospital is an enterprise operated in that name by the Sydney Local Health District and the Institute is a clinical service conducted by the Sydney Local Health District within the Hospital. On prior occasions when the proceedings have been before the Court the plaintiff has sought to have the Institute joined as defendant. That application is misconceived and has been rejected. In order to regularise the proceedings I will add the Sydney Local Health District as a defendant. 5. In conjunction with the plaintiff's present notice of motion there must be considered the plaintiff's ongoing non-compliance with r 31.36 of the UCPR. That rule requires that any claim in medical negligence must be supported by an expert's opinion that is filed and served along with the statement of claim. From the commencement of the proceedings the plaintiff has asserted that she cannot comply with r 31.36 unless she first obtains the Hospital's records. That is not correct but as a concession to the plaintiff the defendant consented to an order, made on 7 December 2018, that it provide a verified list of documents by 21 December 2018. The plaintiff was ordered to comply with r 31.36 by 15 March 2019. The verified list of documents was filed and served on 21 December 2018. By 14 June 2019 the plaintiff had still not served a report under r 31.36 and was still pressing for the defendant to provide more documents. 6. In Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651, handed down on 14 June 2019, I determined that the plaintiff had ample documents to enable her to comply with r 31.36 and I directed her to do so by 19 July 2019. In that judgment at [31] I set out in detail the points upon which medical opinion would be required in order to comply with the rule. I did so because the plaintiff was then unrepresented and it appeared that specifying the content of the report she was required to file would assist her in compliance. The proceedings were stood over to 26 July 2019 for the purpose of confirming that the plaintiff had complied with the order and, if she had not, to require the plaintiff to show cause why her statement of claim should not be dismissed. 7. On 26 July 2019 plaintiff appeared before me with a legal representative who had very recently been engaged. That representative sought an adjournment to 2 August 2019, to enable instructions to be obtained. The plaintiff had left it to the last possible moment to engage a solicitor however I granted the adjournment in the hope that, through legal advice, the plaintiff would come to understand the necessity of complying with r 31.36. When the matter was mentioned again on 2 August 2019 the Court was informed that appointments had been made for the plaintiff to be medically examined in order to procure a report and a further extension of time to 13 September 2019 was sought. That extension was granted and the proceedings were relisted for 18 October 2019. 8. The plaintiff has now obtained two medical reports. The first is from Professor David Morris, a professor of surgery at the University of New South Wales and St George Hospital, dated 19 August 2019. The second is from Dr Ali Kian Mehr of Medicolegal Express located in Kew, Victoria, dated 4 September 2019. In Hassan v Royal Prince Alfred Hospital at [26] I summarised the plaintiff's allegations of medical negligence. The opinions of Professor Morris and Dr Mehr can be considered by reference to that summary. 9. With respect to allegation (1), that the muscle biopsy of the left quadriceps was carried out without consent, the only relevant part of either medical opinion is the statement by Dr Mehr at p4 that: The size of the scar was 5.0 cm x 0.5 cm. There was allodynia in [sic] especially around the surgical scar. In the circumstances of this case medical opinion could not be expected, or required, to support the allegation that the procedure was performed without consent. That issue will turn upon the evidence of the plaintiff and of the doctor who completed her consent form and obtained her signature. However, so far as the plaintiff's case on allegation (1) requires medical opinion to establish that some damage has been occasioned by the allegedly unauthorised procedure, Dr Mehr's report does so in the passage quoted. 1. With respect to allegation (2), that the general anaesthetic was administered when only local anaesthetic had been consented to, the medical reports now served provide no support for a case that damage was occasioned by the use of general anaesthetic or that the procedure to which the plaintiff consented could or should have been performed under local anaesthetic only. 2. Concerning allegation (3), that the muscle biopsy and the administration of anaesthetic were carried out by personnel who lacked medical qualifications, again medical opinion under r 31.36 would not be required to support this in any respect other than proof of damage. Unsurprisingly, neither of the medical reports purport to identify any damage caused as a result of the defendant having allegedly assigned personnel who lacked medical qualifications to carry out the procedures. 3. With respect to allegation (4), that the defendant failed to suture the plaintiff's surgical wounds and keep them free of infection, Professor Morris reported at par 12 that: On examination there is a wide scar on the anterior aspect of the left shoulder which is compatible with the wound having opened. 1. The professor has not expressed any opinion to the effect that the surgical wound to the shoulder actually did in fact open up or that, if it did, this resulted from negligence. Nor has he suggested that any damage was caused by any such interruption to the healing of the wound to its present state. At par 24 Professor Morris noted that "the nursing records indicated that the wounds were dry although clearly I am in no position to know this for sure". Similarly in answer to Question M, as posed by the plaintiff's solicitor, Professor Morris merely noted that the post-operative treatment of the surgical wounds is "an area of dispute" and that "the nursing records state that the wounds were dressed and that they were dry". The professor states that prophylactic antibiotics were not indicated as "it was a clean procedure". 2. Dr Mehr's report says nothing on the subject of allegation (4). Accordingly, neither of the medical reports provides any support for the elements of the alleged tort based upon this allegation; that is, breach of duty of care, extent of damage and causal relationship between breach and damage. Rule 31.36 has not been complied with in relation to this aspect of the plaintiff's case. 3. Allegation (5) is that, instead of a muscle biopsy sample being taken from the plaintiff's left deltoid, open surgery was carried out on her left rotator cuff tendons. Professor Morris' report contains the following passages concerning the nature of the surgical procedure at the plaintiff's left shoulder: 13. [The site of the left shoulder surgical wound] is a little surprising as it is anterior to the shoulder joint rather than over the belly of the deltoid muscle. 19. The problems with the left shoulder [which the professor does not specify] would probably best [be] addressed by the neurologist who first saw her who would have the ability to compare her current symptoms and signs with those prior to the biopsy. 20. The position of the biopsy of the left deltoid is I think unusual in that a biopsy is normally taken from the belly of the muscle and this biopsy site is anterior to the shoulder joint, however in terms of what harm this has done I would defer to the neurologist. 22. [Referring to the size of the specimens taken from the muscle biopsies:] I don't think this is very different from what is required and I don't think this can be regarded as being negligent. H. I don't think there was any technical negligence in the actual biopsy procedure. I don't think that excessive tissue was removed. I. The position chosen for the [deltoid] biopsy I would regard as being unusual and not ideal. J. Q: Whether the taking of the tissue sample could have resulted in damage to the rotator cuff muscle [sic] and the subsequent accumulation of fluid in the left shoulder. A: Yes. It is possible that the rotator cuff was influenced by this incision and it [is] quite likely that the accumulation of fluid in the left shoulder was due to this incision. N. The site of the left deltoid biopsy and the apparent misclaiming [sic] of Medicare Benefits would all be regarded as below the standard of care expected of a surgeon in this country. P. [The question whether the plaintiff's left shoulder condition has been aggravated by the biopsy] would be best answered by the neurologist. R. The problems with the left shoulder and left thigh will interfere with her return to work. I cannot say however whether these problems are due to the biopsies. 1. None of these opinions substantiates allegation (5), that the defendant carried out an operation on rotator cuff tendons rather than a deltoid biopsy. Nor do these parts of Professor Morris' report constitute any evidence that the biopsy was performed negligently except possibly the statement at "N" above, that the site of the incision was inappropriate. But even with respect to that the professor gives no opinion that taking of the biopsy from the anterior aspect of the deltoid rather than in the belly of the muscle has caused any damage. 2. Dr Mehr's report refers to ultrasound studies of the plaintiff's left shoulder dated 15 May 2015 and 11 July 2019. The former showed no significant tendinosis of the rotator cuff tendons and mild subacromial bursitis. The latter showed tendinosis of the supraspinatus tendon, a small partial thickness tear in the supraspinatus and moderate subdeltoid bursitis with marked impingement. Dr Mehr gives the following opinion regarding deterioration in the left shoulder: I believe that there certainly was a deterioration of the condition due to two different issues, one is post operation persistent pain on the scar and sensory disturbances around the scar. Also, the operation itself can cause supraspinatus tear. 1. Dr Mehr further states that "allodynia and post surgical scar pain is a consequence of the [biopsy] operation which causes limitation of the range of motions, can cause adhesive capsulitis in this age group" and that accumulation of fluid in the bursal space "can be related to the [biopsy] procedure". Like Professor Morris, Dr Mehr also states that the location of the biopsy incision on the deltoid was inappropriate and that it would usually be "on the lateral aspect of the shoulder and on bulk of the deltoid rather than anterior aspect". 2. Dr Mehr does not state that the location of the incision was negligent or that it caused any damage. In identifying that effects on the rotator cuff tendons and sensory symptoms around the scar may be attributable to the procedure, Dr Mehr does not suggest that negligence is indicated. Rather, he indicates that these are known side effects. Dr Mehr's report does not, either alone or in conjunction with that of Professor Morris, satisfy the requirements of r 31.36 with respect to allegation (5). 3. Allegation (6) is that instead of performing muscle biopsies the defendant removed bone tumours. Neither Professor Morris nor Dr Mehr offers any opinion that this occurred or, if it did, that any damage or injury was occasioned to the plaintiff. 4. Allegation (7), that the defendant failed to diagnose the plaintiff's condition, and allegation (8), that that her tissue samples were used for research without consent, are not supported in any respect by either of the medical reports. 5. As a result of protracted default by the plaintiff, followed by extensions of time granted by the Court on several occasions, the plaintiff has now had a more than generous opportunity to comply with r 31.36. The point has been reached where the Court can safely infer, as I do, that her claims in negligence are not supportable by medical opinion. Her persistence in the negligence allegations without supporting expert opinion does not give rise to a misgiving that the plaintiff may have a valid claim, obscured only by difficulty she may experience in articulating it. The plaintiff's tenacity in respect of the negligence claims is attributable to irrational fixation on her part. It remains to be seen whether the evidence will establish her case on lack of consent with respect to the vastus biopsy. 6. Allegations (2)-(8) as set out at [24] of the earlier judgment could only be sustained if supported by medical opinion. The failure of the plaintiff to provide medical reports under r 31.36 capable of sustaining essential elements of those allegations in negligence means that they are amenable to dismissal pursuant to subrule (3) of r 31.36. Having regard to the history of the proceedings I will exercise the Court's discretion under that subrule to dismiss the relevant parts of the claim, accordingly. 7. The single surviving claim is allegation (1), based upon the plaintiff's allegation that she did not consent to a biopsy of her left quadriceps. Liability in relation to that claim does not turn upon medical opinion as to negligence but upon a legal conclusion as to whether valid consent was given. So far as the claim will require proof of damage, which in turn would have to be supported by medical opinion regarding the effects of the procedure, the opinion expressed by Dr Mehr extracted at [9] above is sufficient to satisfy the requirements of r 31.36. The most efficient to advance the Court's determination of that allegation will be to order pursuant to r 28.2 that the question whether the plaintiff did or did not consent to a biopsy of the left vastus should be determined separately and before all other issues in the proceedings. I will so order. 8. The plaintiff has not shown any justification for a grant of leave to issue a subpoena as sought by her notice of motion filed 10 October 2019. Most of her statement of claim is to be dismissed for the reasons given above. The verified discovery that has already been made, by the affidavit of documents of Dr R Jones filed 21 December 2018, is ample to enable the plaintiff to litigate the issue which is now to be determined separately. 9. For these reasons orders to the following effect will be made: 1. The Sydney Local Health District is to be added as a defendant to the proceedings. 2. The plaintiff's claim is dismissed in so far as she makes the following allegations: (2) For the procedure carried out on 7 April 2015 the plaintiff consented only to a local anaesthetic but a general anaesthetic was administered. (3) The procedure was done by Dr Gkikas, Dr Snir and Dr Goltsman, and the anaesthetic was administered by Dr Allenby, all of whom were not qualified doctors but medical students. (4) The defendant 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 by the defendant on the plaintiff's left deltoid, open surgery on her left rotator cuff tendons was carried out. (6) The procedures on the plaintiff's left arm and left leg were not merely muscle biopsies, but were procedures for removal of bone tumours and the defendant fabricated a false referral to itself from Dr Edward Lurie for the performance of the bone tumour removal procedure. (7) The defendant failed to diagnose the plaintiff's condition. (8) The defendant 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. 1. Pursuant to r 28.2 of the UCPR there is to be determined separately and before all other questions in the proceedings the following question: "Whether the plaintiff gave a valid and effective consent for a muscle biopsy to be carried out by the defendant on her left vastus or quadriceps muscle prior to the defendant performing that procedure on 7 April 2015" 1. On or before 31 January 2020 the plaintiff is to file and serve evidentiary statements of herself and of any other witnesses whom she proposes to call at the hearing of the separate question referred to in order (3). 2. On or before 20 December 2019 the Sydney Local Health District is to file and serve evidentiary statements of any witnesses whom it proposes to call at the hearing of the separate question. 3. The plaintiff's notice of motion filed 10 October 2019 is dismissed. 4. The plaintiff is to pay the costs of the Sydney Local Health District of the notice of motion filed 10 October 2019. 5. The proceedings are listed before Fagan J at 9:15 am on 7 February 2020 for directions and for the appointment of a hearing date for the separate question. 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: 28 November 2019