Gray bhnf Salasovicova v St Vincent’s Health Australia t/as Mater Hospital Sydney [2019] NSWSC 1740

Supreme Court New South Wales

Medium Neutral Citation: Gray bhnf Salasovicova v St Vincent's Health Australia t/as Mater Hospital Sydney [2019] NSWSC 1740 Hearing dates: 4 December 2019 Date of orders: 06 December 2019 Decision date: 06 December 2019 Jurisdiction: Common Law Before: Harrison J Decision: Settlement approved Catchwords: TORTS – negligence – medical negligence - application for approval of proposed settlement in favour of infant plaintiff – whether settlement is in the best interests of the plaintiff – where immediate needs of plaintiff are to be assessed by reference to life expectancy and longevity of the settled fund Category: Procedural and other rulings Parties: Amalia Gray by her tutor Katerina Salasovicova (Plaintiff) St Vincent's Health Australia Limited trading as Mater Hospital Sydney (First Defendant) Dr Michele Batey (Second Defendant) Representation: Counsel: M Cranitch SC with A Campbell (Plaintiff) M Fordham SC (First and Second Defendants)

Solicitors: Gerard Malouf & Partners (Plaintiff) Minter Ellison (First Defendant) Avant Law Pty Limited (Second Defendant) File Number(s): 2017/191608 Publication restriction: Nil

Judgment 1. HIS HONOUR: This is an application for approval of a settlement of proceedings commenced by Amalia Gray by her tutor Katarina Salasovicova. Amalia was born in April 2013 and is now 6 years of age. I previously declined to approve a settlement of the proceedings proposed earlier: see Gray bhnf Salasovicova v St Vincent's Health Australia t/as Mater Hospital Sydney [2019] NSWSC 1402. In dealing with that application I said this: "[1] This is an application for approval of a proposed settlement in favour of the plaintiff who was born in April 2013 with what was shortly thereafter diagnosed as dystonic quadriplegic cerebral palsy. It is alleged that between approximately 10.30am and 4.58pm, when the plaintiff was delivered, that she suffered a series of foetal heart rate variations, descending into severe incidents of bradycardia at 12.30pm and more significantly at 3.30pm to which those charged with her mother's antenatal care did not adequately respond. The plaintiff alleges that despite these two significant instances of bradycardia, no attempts were made to deliver her by Caesarean section or within a short time thereafter but that the birth was permitted to continue to a vaginal delivery in the normal course. [2] As the result of her presentation with a Group B streptococcus infection, the plaintiff's mother had been administered an intravenous dose of penicillin at 10.30am on the morning of delivery that arguably caused her blood pressure to drop. The plaintiff contends that the risks for her associated with maternal hypotension dictated early delivery in the circumstances of this case. The risk of harm to a foetus caused by maternal hypotension and associated hypoxic ischaemia is alleged to have been foreseeable and a risk to which the defendants in this case did not properly or adequately respond. Professor Colditz has opined that the plaintiff's dystonic cerebral palsy is most likely to have been caused by maternal hypotension resulting from an anaphylactic reaction to penicillin administered to her mother. He was critical of the time taken to deal with the plaintiff's bradycardia. [3] I am aware that there is a medical dispute in these proceedings about whether the plaintiff's mother in fact suffered an anaphylactic reaction to the antibiotic or instead suffered merely from a vasovagal syncope. The defendants have raised the issue of whether or not the plaintiff can establish that they should have operated upon the basis that the bradycardia was a function of the former rather than the latter. There is an additional medical controversy about whether or not the administration of adrenalin, which did not occur in this case, would have reversed the anaphylaxis, if that is what it was, without harming the plaintiff in utero or whether the administration of adrenalin in fact carried its own risks of foetal compromise by adversely affecting foeto-placental circulation. [4] The first defendant has admitted a breach of duty of care. The second defendant has put all matters in issue. [5] The plaintiff is severely disabled and even with the aid of walking devices, she will require a wheelchair and accessible living accommodation for the rest of her life. The plaintiff's life expectancy has been reduced but competing opinions on this issue range between twenty eight and seventy seven extra years. [6] I was initially attracted to the reasonableness of the settlement when the matter was before me on 6 September 2019. I have since had an opportunity to consider the medical material in some greater detail. Senior and junior counsel for the plaintiff have provided me with a helpful confidential memorandum of advice, part of which refers to the fact that the plaintiff's disabilities will not fully manifest themselves until she is in her teenage years. It is not a foregone conclusion, however, that the plaintiff would be required to proceed to a hearing before her condition had settled. [7] An additional inspiration for the settlement is the fact that the plaintiff's parents are concerned about the uncertainties of litigation and are disinclined, if possible, to continue with the litigation in such an atmosphere. This is understandably so if there is even the possibility of an adverse outcome. Moreover, the amount being offered is said to be not outside the range of possible verdicts and, having regard to the plaintiff's parents' economic and emotional resources, the plaintiff's future care is likely to be significantly augmented by them." 1. The parties have now agreed to increase the amount of the proposed settlement. The application is also supported by further evidence from the plaintiff's mother, in the form of an affidavit affirmed on 3 December 2019. Ms Salasovicova's evidence is important and is relevantly as follows: "1. I am the tutor for the plaintiff in these proceedings and her mother. 2. I refer and affirm my earlier affidavit of the 12th of August 2019. 3. Following the judgment of his Honour Justice Harrison given on the 8th of November 2019, the parties have entered into further settlement discussions. 4. The proposed settlement is an increase over the previous proposal of $9,000,000 being $9,500,000 plus costs to be agreed or assessed. 5. I understand that this settlement is a full and final settlement for Amalia. For the reasons set out in this affidavit, I believe that the matter is best settled now and I have provided instructions to my solicitor to seek the Court's approval. Accordingly, I request the Court to approve the settlement on the terms provided. 6. The reason I believe it is in my daughter's best interest to settle now arises from my discussions with the Cerebral Palsy Alliance and the specialists that Amalia attends. 7. They have consistently stressed that early intervention is the key to Amalia's improvement. In order to ensure that she continues to improve, she needs a substantial input of money at this point of time. 8. I have been advised that Amalia will get maximum benefit from her treatment if she has it now, and that further treatment would be of no benefit to her if delayed for a substantial period of time. 9. I have been advised and believe that Amalia requires three sessions of physiotherapy, at a cost of $250.00 per session 3 days per week. 10. Amalia requires speech pathology for a minimum of three times a week at a cost of $250.00 per session 3 days per week. 11. Amalia requires occupational therapy for fine motor skills at a cost of $250.00 per session, 3 days per week. 12. After receiving intensive physiotherapy, occupational therapy and intensive sessions with a speech therapist we have seen Amalia make significant gains. We used the 'Better Start Funding Grant' of $12,000 when Amalia was one year old as well as her entire NDIS funding money for this purpose. 13. Currently Amalia receives $23,000 from NDIS and this leaves a significant gap in funding for services that she needs. 14. In addition to the therapy referred to above, Amalia requires three social interaction classes conducted over a period of three weeks three times per annum. These are expensive at $30,000, but we believe she will benefit significantly if she can commence soon. 15. Additionally, Amalia requires a power wheelchair which she is able to operate by manipulating her head. This requires an immediate payment of $50,000 and an allowance of $1,000 per annum maintenance. 16. In order to transport her, we now need a vehicle to accommodate a wheelchair. A suitable vehicle can be bought at a cost of $100,000 and this will require maintenance. This will make it easier for us to take her to medical appointments as well as outings so as to enable her to socialise and develop cognitively. 17. Amalia also requires a hydrotherapy pool in order to enable supple movements of her body including arms and legs. The cost of this pool we estimate to be about $100,000 and it needs to be heated in order to be effective. This will be an additional cost if it is not possible to get the required heat by way of a solar installation. 18. As Amalia gets older, she has become very difficult for me to manage by myself. I need a day time carer to assist me with her management. Including on costs, I estimate this would cost up to $100,000 per annum. 19. The house in which we currently live is becoming more difficult in terms of accommodating the needs of Amalia. We need to provide an extension to the family home to accommodate her needs so that she is able to live downstairs rather than try and negotiate the stairs in the house which are becoming increasingly difficult as she gets older. We estimate the costs of setting up the downstairs to accommodate her in the vicinity of $400,000 which would include a special room, disability bathroom and a hoist throughout the downstairs area so that she can be accommodated with greater ease as she gets older and bigger. It is important that this work commence immediately, as it is becoming very difficult to manage in our present house. 20. I would like to take Amalia to see my family overseas, and we all need a holiday as a family. With assistance and appropriate travel arrangements I estimate that we need a substantial sum of money to enable us to travel over and above the ordinary costs of travel. 21. I have not yet estimated the cost of such travel as it is somewhat remote compared to our present needs. 22. Amalia needs regular sessions with a psychologist as she gets older in order to assist her in coping and dealing with her emotions and disappointment and frustration at not being able to perform to the level of her peers. I estimate that the cost of these sessions is likely to be in the vicinity of $13,000 per annum. 23. Amalia has a very short attention span and has difficulty in concentrating. She would benefit from a qualified private tutor for literacy and numeracy and would require one on one tutoring at our house. We envisage that this will take place at least three times weekly after school, over the weekend and during the school holidays. We have costed a tutor at $85 to $100 per session. 24. In order to assist her communication, Amalia requires an Eyegaze Communication device. With this device she will be able to communicate her needs at home and interact with her peers, therapist and teachers in the classroom. It is a computer which she navigates with her eyes and it is also an important device to enable her to develop her literacy skills. The capital cost of such a device is $10,000. In addition, she needs to be trained with an Eyegaze specialist for a number of weeks, and I believe that she needs at least one session per week during this interval. I am informed that the cost is likely to be $250 per session. Annexed hereto and marked with the letter 'A' is literature provided by the Cerebral Palsy Alliance regarding early intervention. Although it refers to children aged 0 to 6, it clearly applies, it seems with an ever-decreasing effectiveness, to children older than that. I also annex and mark with the letter 'B' an article pertaining to early physiotherapy intervention for children with cerebral palsy which I forwarded to my solicitor on the 27th of November 2019. 25. Whilst we accept the Court's view that the matter might best await Amalia's coming of age, to delay treatment now in favour of this more conservative approach is something we believe will be detrimental to Amalia. 26. Although our counsel believed the amount originally offered was acceptable albeit parsimonious, we are firmly of the view that money utilised now will be of greater benefit to Amalia than a possibly larger outcome some years down the track. 27. Accordingly, we ask that the Court approve the settlement so that Amalia may receive the benefit of the earliest possible intervention in the manner set forth in this my affidavit." 1. I should indicate that, notwithstanding Ms Salasovicova's reference to it in paragraph 25 of her affidavit, it has never been my view that settlement of the proceedings should await what is there referred to as the plaintiff's "coming of age". 2. I note again that the first defendant has admitted a breach of its duty of care. That does not foreclose the plaintiff's difficulties with the issues of causation that are common to the response that both defendants' have made to the plaintiff's claim. Clearly enough, the assessment of the reasonableness of a sum offered by way of settlement is a function of a number of matters including the plaintiff's prospects of success and the realistic calculation of the undiscounted amount of damages that could be awarded. I am not presently satisfied that the sum of $9.5M is a proper indicator of the plaintiff's chances of success, when applied as a risk sensitive percentage of the damages she could possibly recover if she were to succeed entirely. 3. However, as Ms Salasovicova's evidence somewhat starkly reveals, the plaintiff's need for financial assistance in her early years may well be a consideration equally as important as, if not more important than, the uncertain assessment of whether her damages will remain intact as a viable income producing fund to provide for her needs for the whole of her anticipated life. Ms Salasovicova's concern is that Amalia's current treatment needs ought not to be disregarded, or discounted in significance, by reason of the apparent force of a less nuanced concern about whether the money might actually run out in Amalia's lifetime. Put bluntly, consideration of what is or is not in the best interests of an infant plaintiff must necessarily take account of what can be done for her in the short term no less so than what might be required to provide for her in the long term. That is particularly so if access to treatment now might produce enduring improvement in her condition and enjoyment of life that could be lost or that later intervention might not necessarily provide. Assessment of a plaintiff's best interests is not merely an actuarial calculation involving the product of the projected lifetime earnings of the contracting fund and the best (necessarily problematic) estimate of the remaining years. In that last respect I note that competing life expectancy calculations vary in the present proceedings by as much as twenty years. 4. I have raised the prospect of an interim payment as a possible solution to the short term unavailability of funds to meet the expenses identified in Ms Salasovicova's affidavit. Senior counsel for the plaintiff did not show any particular enthusiasm for the suggestion and senior counsel for the defendants was not armed with instructions to indicate what attitude they would take to it. I note in any respect that senior counsel for the plaintiff endorses the settlement and due respect must be accorded to the views of an experienced practitioner with an intimate knowledge of the plaintiff's case. 5. In all of the circumstances, despite misgivings about whether or not the amount proposed is in the best interests of the plaintiff, in the sense that she might well achieve a better dollar result if the proceedings went to trial, I have reluctantly concluded that she may well benefit now or in the near future from the immediate receipt of, and access to, a settled fund in ways that will offset the risk that she may well outlive the life of the fund. The plaintiff's parents are also intelligent and resourceful people in whose care the plaintiff will fare better than comparable cases where generous and unqualified assistance from family members cannot be expected or assumed. 6. I will therefore make the following orders: 1. I approve the settlement pursuant to s 76(4) of the Civil Procedure Act 2005. 2. I make orders in accordance with paragraphs 1 to 13 inclusive of consent judgment dated 4 December 2019 and signed by the legal representatives of the parties. 3. I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the combined sum of $9.5M referred to in paragraphs 2 and 3 of the consent judgment, less any authorised deductions for which the consent judgment specifically or by necessary implication provides, be paid into Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application made pursuant to s 77(3) of the Act otherwise direct.