Porter v Le

1. [1]

   HIS HONOUR: These proceedings commenced in 2007. They are listed for hearing commencing on 22 August 2016 with an estimate of five weeks. Notwithstanding the age of the proceedings and the impending hearing, the plaintiff has sought by notice of motion dated 20 July 2016 to amend his statement of claim for a second time. That course is opposed by the defendant. Moreover, the defendant seeks to vacate the hearing with concerns about the possibility that the plaintiff will seek to rely on late served evidence, whatever might be the outcome of the application to amend. There is a relationship between the terms of the amendment and the defendant’s application.

2. [2]

   The plaintiff originally consulted the defendant on 24 July 2004. The defendant’s diagnosis was that the plaintiff was suffering from acute bacterial rhinosinusitis for which he was prescribed an antibiotic Augmentin Duo Forte and a corticosteroid Panafcort. On 31 July 2004 the plaintiff suffered a haemorrhage from his right adrenal gland secondary to septicaemia. As a consequence of the retroperitoneal haemorrhage, the plaintiff developed an acute abdomen and shock, and was admitted to Westmead Hospital. Between 31 July 2004 and 13 August 2004 the plaintiff underwent a series of operations. During the course of his admission to hospital the plaintiff was diagnosed with septicaemia caused by Klebsiella pneumoniae, multiple cerebral and cerebellar abscesses, suffered acute renal failure and developed bilateral infective emboli of the arteries to his eyes.

3. [3]

   The plaintiff alleges that at the time when Panafcort was prescribed by the defendant there were not insignificant associated risks that included the masking of signs and symptoms such as deterioration and progression of, and febrile response to, the existing underlying Klebsiella pneumonia bacterial infection from which the plaintiff was then in fact suffering. The plaintiff also alleges that in such circumstances there was a risk that he would become immunosuppressed, would succumb to the overwhelming generalised bacterial infection and that his immune system, including his adrenal function, would be affected and compromised. In the events that occurred, this is what happened.

4. [4]

   The significant proposed amendments to the statement of claim are to be found in the particulars of the defendant’s alleged breach of duty. The plaintiff now wishes to proceed to trial based upon the following allegations of breach of duty:

   1. (1)

      Failing to consider the risks before advising the prescription of Panafcort.

   2. (2)

      Prescribing Panafcort when he knew or ought to have known of the risks.

   3. (3)

      Prescribing Panafcort when there was no indication for doing so.

   4. (4)

      Considering that it was reasonable to prescribe Panafcort for acute bacterial rhinosinusitis:

   5. (5)

      Wrongly considering that the plaintiff suffered from chronic rhinosinusitis.

   6. (6)

      Failing to prescribe antibiotics only, and to advise the plaintiff to return for review if his symptoms did not improve within 48 hours.

5. [5]

   The plaintiff also wishes to plead that his loss and damage were caused by these breaches in the following ways:

   1. (1)

      Had the plaintiff not been prescribed or taken Panafcort his acute rhinosinusitis would have been eradicated and he would not have developed Klebsiella pneumoniae septicaemia, a right adrenal gland haemorrhage, multiple cerebral and cerebellar abscesses or any other complications caused by the Klebsiella pneumonia septicaemia.

   2. (2)

      Alternatively, had the plaintiff not been prescribed Panafcort:

6. [6]

   On 23 June 2016 I made certain orders concerning the conduct of the hearing, including the taking of expert evidence in concurrent session and the service of medical reports: Porter v Le [2016] NSWSC 849. I granted leave to the plaintiff to rely upon the report of Professor Havas. I made no orders with respect to any fresh evidence of other experts.

7. [7]

   However, on 14 July 2016, the plaintiff served a supplementary report of Dr B Hudson, a microbiologist, who provided an opinion on the course of the plaintiff’s alleged infection in the hypothetical situation where he did not take Panafcort. His new report canvasses matters of general practice and radiology, as well as microbiology. This, among other things, prompted the following letter dated 14 July 2016 from the defendant’s solicitors:

8. [8]

   A follow up letter was sent the next day. It foreshadowed that the matter would be listed before me on 22 July 2016. In the events that occurred, the matter returned to me on 21 July 2016.

9. [9]

   By letter dated 19 July 2016 the plaintiff’s solicitors served a supplementary report of Dr J Jeong and letters of instruction to him. Another letter of the same date was also sent in the following terms:

10. [10]

    That letter would appear to have prompted four further letters from the defendant’s solicitors, one of which was as follows:

11. [11]

    Correspondence between the solicitors on 19 July 2016 would appear blissfully to have come to an end on that day with the following letter from the plaintiff’s solicitors:

12. [12]

    A copy of the plaintiff’s proposed second amended statement of claim was sent to the defendant’s solicitors on 20 July 2016 seeking consent to its filing.

13. [13]

    When the matter came before me on 21 July 2016, the defendant read two affidavits of Natalie Aprea affirmed on 20 July 2016. The larger affidavit deposed to the matters to which I have already referred. The second merely annexed a copy of an email from Associate Professor Richard Lee, one of the experts retained by the defendant in these proceedings. His email is relevantly in the following terms:

14. [14]

    The plaintiff read two affidavits of Rebecca Tidswell also affirmed on 20 July 2016. One of them annexed correspondence to which I have already referred. The other affidavit deposed to matters that included the following:

15. [15]

    The parties made very helpful oral submissions that are accurately recorded in the transcript of the proceedings before me on 21 July 2016. It is unnecessary for present purposes to record those submissions in detail in these reasons.

Consideration

1. [16]

   In my opinion, the plaintiff should be given leave further to amend his statement of claim. The hearing should not be vacated. This is for the following reasons.

2. [17]

   The proposed amendments do not raise a new case. They are directed to the issue of what might reasonably have been the plaintiff’s condition if he had not taken the Panafcort. That inquiry is merely the obverse of the case that his symptoms were masked by that drug. That has always been the plaintiff’s contention in this litigation. The very concept that the plaintiff’s underlying condition could or might have been masked or disguised by the effects of the Panafcort prescribed by the defendant necessarily raises the question of what his condition would or might have been but for its ingestion. The plaintiff’s clinical presentation is a function of whatever infection he may have been suffering from and the medical strategies and pharmacological measures that may have been taken to correct it. I am unable to accept that the alleged disruption to the case and to the defendant’s preparation for the hearing could not and should not have been anticipated having regard to the way in which these proceedings have been conducted for some time. The amendments to the pleadings do not appear to me to do any more than formalise or regularise that fact.

3. [18]

   The further evidence upon which the plaintiff should be entitled to rely is in a slightly different category. I made orders about that evidence on 26 July 2016. The plaintiff has not sought any formal variation of those orders. It has not otherwise been suggested to me that a variation is necessary. The defendant is entitled to proceed upon the reasonable assumption that the trial judge will apply my orders concerning the scope and extent of the plaintiff’s evidence unless or until she or he is otherwise persuaded upon application that some different approach is warranted.

4. [19]

   It will be evident that the prejudice to which counsel for the defendant referred at length during submissions appears to me to be more apparent than real. Sight should not be lost of the fact that this case has managed to assemble a very large group of very eminent specialist medical experts. I strongly suspect that the presenting factual context out of which these proceedings arise, including the so-called counter factual of recent importance, is not the most complicated diagnostic problem ever confronted by these practitioners. The Uniform Civil Procedure Rules and the imperatives of the Civil Procedure Act 2005 need to be applied practically and realistically. The literal application of these provisions should not produce an overly rigid or inflexible response to problems or situations that can be accommodated and solved with a modicum of common sense and reasonable goodwill. Adversary litigation should also not be permitted to disguise or obliterate the fact that the Court and the wider community have an interest in the efficient disposition of litigation. The particular sensitivities of the litigants are not always the best or only benchmarks by reference to which it is appropriate to arrive at a just result. This is a matter in which the parties are very well served by eminently qualified experts, so that the appropriate assistance will undoubtedly be provided to the Court when the matter is heard. To the extent that the defendant prays some particular accommodation to meet a prejudice that I may have too quickly brushed aside, it is inevitable that the trial judge will be made aware of it and be able at the appropriate time to make some proper allowance for it if required.

Order

1. [20]

   In the circumstances I make the following orders:

   1. (1)

      Grant leave to the plaintiff to amend his statement of claim in the form attached to the letter dated 20 July 2016 annexed to the affidavit of Natalie Aprea affirmed 20 July 2016 and marked “O”.

   2. (2)

      The defendant’s application to vacate the hearing scheduled to commence on 22 August 2016 is dismissed.