McMeekin v Prince of Wales Private Hospital

1. [1]

   HER HONOUR: By notice of motion filed 18 October 2018, the plaintiff now seeks that leave be granted to administer to the first defendant 21 interrogatories (“the interrogatories”) (Annexure T, Aff Australy Milo 18/10/2018), and that costs of this motion are costs in the cause.

2. [2]

   The plaintiff is Vivian Susan McMeekin. The first defendant is Prince of Wales Private Hospital. The third defendant is Dr Surya Krishnan. The plaintiff relied upon the affidavit of Australy Milo dated 18 October 2018.

3. [3]

   On 15 November 2018, the second further amended statement of claim (“2FASC”) was filed and served. Counsel for the plaintiff has indicated that she will seek to further amend her 2FASC as set out in Ex B. The plaintiff was served with the first defendant’s defence to the 2FASC at the commencement of this hearing.

Background

1. [4]

   The plaintiff alleges there was a failure to correctly manage and diagnose her when she attended the first defendant hospital (“the hospital”) on the morning of 16 September 2012 at about 11:00 am. She was at the time 26 weeks pregnant with her first child, and it is not in contest that she was suffering from pre-eclampsia. The plaintiff alleges that at around 1:50pm, an employee of the hospital, senior midwife Bronwyn Ashley, had a conversation with Dr Krishnan. This conversation is the subject of the interrogatories. There is a handwritten progress note of the plaintiff’s admission to hospital that details her symptoms, clinical examination, tests conducted and their results.

2. [5]

   All that is noted in this file note that relates to the conversation is:

3. [6]

   It is only the plaintiff’s first attendance at the hospital that forms the basis of her claim. The plaintiff was under the care of Dr Sacks. Dr Sacks was not on duty on the occasion and was being covered by his colleague, the second defendant, Dr Krishnan.

4. [7]

   Shortly after that conversation, the plaintiff was discharged home. Following discharge she developed worsening headache, vomiting and viscal scintillations.

5. [8]

   At 6.15 pm on 16 September 2012, the plaintiff presented again at the hospital with a history which included having been discharged home earlier that day, and reporting a general decline in wellbeing with feelings of unwellness. Dr Krishnan was notified.

6. [9]

   At about 7:40 pm, the plaintiff was transferred to the Royal Hospital for Women. The next day, on 17 September 2012, the plaintiff underwent an emergency caesarean and gave birth to a baby boy.

7. [10]

   The plaintiff alleges that the hospital and Dr Krishnan breached their duty of care to her, and that she has suffered injury as a result, including fulminant pre-eclampsia, posterior reversible encephalopathy syndrome, partial blindness, limb and facial oedema and a moderate to large intraparenchymal haemorrhage in the right occipital lobe.

8. [11]

   The medical evidence served by all parties opines that the plaintiff should not have been discharged on the first admission. The real issue in dispute in these proceedings is which, or both, of the defendants is at fault. This in turn depends substantially upon the terms of a conversation that occurred between the midwife (employed by the first defendant) and the second defendant, to which the plaintiff was not a party. More particularly, the issue depends upon the information provided by the midwife to the second defendant and any questions or response he may have made. The second defendant has provided his version of the conversation in his answers to the interrogatories (Ex C).

9. [12]

   Both defendants have cross claimed against the other, each asserting that the injury and damages claimed by the plaintiff were caused by the other party.

10. [13]

    In those cross claims, both defendants put in issue information that was passed by the midwife (employed by the first defendant) to the second defendant. The plaintiff submitted that both the 2FASC and the defences are less than fully informative as to what each party maintains was said in that conversation.

The pleadings

1. [14]

   The 2FASC at [17] pleads:

The first defence to the 2FASC

1. [15]

   The amended defence of the first defence to the 2FASC at [13] pleads:

The interrogatories

1. [16]

   In the interrogatories, the “first attendance” refers to the plaintiff’s first attendance at the first defendant’s hospital at about 11:00 am on 16 September 2012.

2. [17]

   The “subject conversation” refers to a conversation between a member of staff of the first defendant and the second defendant, which is the conversation referred to in p 13 of the first defendant’s defence filed 30 May 2017.

3. [18]

   The relevant interrogatories are as follows:

4. [19]

   Counsel for the first defendant submitted that after the 2FASC was filed, due to the amendments, interrogatories 17-21 are no longer relevant. The plaintiff is to redraft these interrogatories once a 3FASC is filed. In these circumstances, the first defendant is not obliged to answer interrogatories 17-21.

5. [20]

   There is no dispute between the parties as to the law in relation to interrogatories.

Legal principles

1. [21]

   Rule 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) relevantly reads:

2. [22]

   The plaintiff referred to Keating v South East Sydney lllawarra Area Health Service (NSWSC, 7 July 2006, unreported) (“Keating”) and a recent case of Ahmad v South Sydney Western Sydney Local Area Health District [2018] NSWSC 1327 (“Ahmad”). The first defendant referred to Venacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46 (“Venacom”). The plaintiff was unable to obtain the information other than by administering the interrogatories.

3. [23]

   In Keating, Hall J stated at [8] to [10]:

4. [24]

   His Honour continued at [16], [17], [20] and [23] to [25]:

5. [25]

   The plaintiff also referred to Ahmad, where Davies J stated at [13] and [14]:

6. [26]

   Davies J continued at [17] and [23]:

7. [27]

   In Venacom, Campbell J stated at [12]:

8. [28]

   Venacom was not a medical negligence case. It involved an allegation of fraud.

9. [29]

   In Keating, as is the position in the present case (Aff Milo 18/10/2018 at page 30), the hospital records did not provide adequate information on the relevant issue. The conversation that occurred between the midwife of the first defendant hospital and the second defendant in this case cannot be known to the plaintiff excepting from information supplied by the defendants. Nor can the plaintiff determine the events that occurred without such information, not only because she was not a party to the conversation or events that occurred outside of her hearing and the sparsity of the information in the hospital records, but also because of the sparse information contained in the pleadings of the defendants. As Hall J pointed out in Keating, the fact that the knowledge of these matters is particularly that of the defendants provides a proper basis for the order sought being made.

10. [30]

    Concerning interrogatories 1-8, the plaintiff submitted that the interrogatories sought to be raised go to the establishment of the possible liability of both defendants, because if there has been a failure on the part of the midwife to inform the second defendant as to the outcome of the pathology analysis of the urine, then clearly that would be an important factor in establishing a case against the first defendant. Conversely, if that information was imparted to the second defendant, the case against the second defendant is considerably strengthened. But this aspect of the matter does not end there. This is because the full exposing of the conversation may very well dictate the likelihood or otherwise of the asserted versions of the information said to have been imparted, and whether such information that was imparted may have properly put the second defendant in a position where he ought to have made further enquiries of the midwife. Further, the plaintiff does not know what is encompassed in the expression “inter-alia” used by the first defendant in paragraph [13(b)].

11. [31]

    On the facts of this case, the position of each of the defendants depends very much upon what was conveyed in the conversation that took place between the midwife and the second defendant. Equally, the plaintiff can only know from the defendants the extent to which each made a "diagnosis", and the reliance, if any, each of those persons placed on the other.

12. [32]

    It is not known what steps, if any, the midwife took to escalate her enquiries within the hospital in accordance with hospital policy. That policy has only recently been provided to the plaintiff. The proper analysis of the advice given by the second defendant and any “diagnosis” or “opinion” made or given by the midwife, can only be undertaken by the disclosure of the parties concerned.

13. [33]

    The first defendant, in a letter written on its behalf dated 30 November 2018, seeks to maintain the position that interrogatories 9, 10 and 11 (which go to the issue of whether the first defendant's staff made a diagnosis) are irrelevant. The first defendant maintains that the second defendant did make such a diagnosis (Def, 30/5/2017 at [13c]). The second defendant says that he was “advised by the midwife that in her opinion, the plaintiff had a urinary tract infection” (Def, 21/6/2017 at paragraph [13(d)]). It is submitted that it is pure sophistry to draw a distinction between the expression of that medical opinion as to the nature of the plaintiff’s condition and “a diagnosis”. The proper role of the midwife is set out in the report of Professor Maralyn Foureur of 24 May 2017.

14. [34]

    Moreover, there is an issue in this case concerning the possible failure of the midwife to escalate the matter. If, as the midwife may be maintaining, she fully disclosed all the symptoms and test results to the second defendant, then it will be argued that the evidence demonstrates that there ought to have been real concern that the second defendant did not properly respond to the circumstance, such that in accordance with the hospital protocol, she ought to have escalated the matter. Accordingly, first defendant’s submission that interrogatories 9 to 16 are irrelevant is unsustainable. The authorities make it clear that in such cases, the basis upon which any opinion is formed is relevant in such circumstances and as such, interrogatories seeking the basis of such opinions are allowable in appropriate circumstances such as the present.

15. [35]

    The true issues in this case can only be properly resolved (and the plaintiff not prejudiced) by the disclosure sought in the proposed interrogatories. This is particularly so when it is clear that the plaintiff was not accorded proper medical investigation, advice and treatment, and when the relevant parties, who as between them in one way or another were responsible for those circumstances, do not fully disclose the events that occurred between them. The plaintiff would be placed in a position of having to contend with a circumstance in which one or both of the defendants must be liable, but when there is not full disclosure as to what passed between them.

16. [36]

    For those reasons the plaintiff submitted that circumstances are such as to make the interrogatory "necessary". The accepted test of necessity is “what is reasonably necessary for the disposing fairly of the matter or necessary in the interests of a fair trial”: see Schutt v Queenan [2000] NSWCA 341 at [12], as quoted by Hall J in Keating at [18].

17. [37]

    The most recent statement of the principles applicable to all applications orders to answer is set forth in Ahmad, and concerns claims for damages arising out of injury, particularly in medical negligence cases. In that case, Davies J referred with apparent approval to the views expressed by Hall J in Keating concerning both the question of “necessary” and “special reasons”. In doing so, his Honour considered the special complexity and circumstances associated with medical negligence claims.

18. [38]

    This is a case having many of the hallmarks of the type of complexity one not uncommonly finds in medical negligence cases; the fact that such cases fall into such a category does not, as Hall J in Keating pointed out, detract from the case being one in which there are “special reasons”.

19. [39]

    It is clear that the plaintiff would be at some real disadvantage if the interrogatories are not answered.

20. [40]

    Davies J in Ahmad also drew attention to the statement made by Ward J in Cassegrain, in which her Honour adopted the words of the Lord Chancellor in Lyell v Kennedy (1883) 8 App Cas 217 where his Lordship said at [228], “[I]t is no sufficient objection that the plaintiff may have, and to some extent (on his own shewing) has, other means of proving facts enquired after”. That reason alone suggests that leave should be granted, not to mention the requirement, the relevance which Hall J made clear in Keating, to achieve a just, quick and cheap resolution of the real issues. Accordingly, it is no answer for the first defendant to assert that the answers may be revealed at trial.

21. [41]

    The plaintiff submitted that the experts will have to address both versions of the conversation, and this may have to be done by way of supplementary reports. Then the experts will be in a position to include their view in the joint report. Further, it should be borne in mind what was said by Hall J in Keating at [17] about the level playing field, in that the plaintiff will have the opportunity to have his or her proceedings decided fairly, so that the proceedings can be fairly disposed of.

22. [42]

    The first defendant submitted that leave should not be given to administer the interrogatories.

23. [43]

    The first defendant submitted that where there is the probability of directions being made for the filing of affidavits and/or witness statements, it ordinarily is difficult to satisfy the Court that a proposed interrogatory is “necessary”: see Venacom at [12].

24. [44]

    Secondly, as a general proposition, it will only be necessary to administer interrogatories if they relate to matters in issue on the pleadings.

25. [45]

    Thirdly, as a general rule, it is not proper to interrogate for the purpose of obtaining details about the manner in which a party intends to prove their case (see West v Conway (1923) 23 SR (NSW) 344 at 347), or as to witnesses to be called: see Knapp v Harvey [1911] 2 KB 725 at 732.

26. [46]

    As a preliminary point to the points of substance, the interrogatories themselves are misleading and confusing. They refer to “the subject conversation” being the conversation being referred to in paragraph [13] of the Hospital’s defence filed 30 May 2017. Those interrogatories could not be said to be necessary at the time the order is made, because of the fact that the plaintiff has now filed the 2FASC.

27. [47]

    The plaintiff has made it clear (2FASC at [17]) that she is in a position to make detailed and precise allegations about “the subject conversation”. Not only is the plaintiff presently in a position to make detailed allegations of fact about “the subject conversation” in paragraph 17, she also is in a position (2FASC at [30]) to make detailed and serious allegations of negligence against the hospital arising from the allegations arising from “the subject conversation”.

28. [48]

    Thirdly, the interrogatories plainly offend the general principle that interrogatories should not be ordered with respect to the manner in which a party will prove their case.

29. [49]

    Fourthly, the interrogatories offend the principle that leave should generally not be granted in circumstances where there is the possibility that evidence sought by the interrogatory may be available in any event: see Venacom. These proceedings are in the professional negligence list, and there will be an order that the parties serve affidavits or witness statements.

30. [50]

    Additionally, the interrogatories are unnecessary at this time, as the case has been moving on for years and they will delay it being fixed for trial. There are costs considerations that also weigh against the plaintiff (T18.42-49). Contrary to s 56 of the Civil Procedure Act 2005 (NSW) (“CPA”), the administering of interrogatories will incur more expense to the parties, as they will have to obtain supplementary reports from their experts in relation to the answers to the interrogatories. The experts will need to consider what their opinions will be if the first defendant’s version is accepted. At trial, it may be that some of each defendant’s version may be accepted. This will also delay the hearing.

31. [51]

    Finally, it is submitted that interrogatories cannot go to state of mind, and are therefore impermissible (see Venacom at [12]) (T20.3-7).

Conclusion

1. [52]

   This is a medical negligence case. The conversation is peculiarly within the knowledge of the defendants. It would be difficult for the plaintiff to prove or obtain this evidence.

2. [53]

   I agree that the first defendant has made a considerable effort to plead what it alleges to be “the conversation”. The plaintiff was not present when the conversation took place, and there is a serious dispute between the first and second defendants as to the contents of that crucial conversation. The second defendant has provided his version of the conversation in his answers to interrogatories. The first defendant has not.

3. [54]

   In regard to s 56 of the CPA, there will be delay and expense incurred whether or not the interrogatories are allowed. To my mind, so far as expense, delay and justice are concerned, the better approach is to administer interrogatories to the first defendant, and have the experts provide a supplementary report covering both versions of the conversation. That way, the experts can discuss the ramifications of both versions of the conversation in preparing their joint reports. With respect to the midwife’s state of mind, she allegedly expressed an opinion. In other words, it goes not so much to her state of mind, but rather to the information she articulated to the second defendant.

4. [55]

   The plaintiff should not be deprived of having relevant and potentially significant (if unrecorded) information, and be kept waiting until trial to learn what these matters may be. The question is what is necessary, and are there special reasons that will ensure there is an even playing field. That is, the plaintiff will have the opportunity to have her proceedings decided fairly, so that they can be fairly disposed of. There is no doubt that the midwife’s version of the conversation goes to a critical issue in dispute between the parties.

5. [56]

   In my view, interrogatories 1-16 addressed to the first defendant are necessary at this time. There are special reasons, as defined earlier, as to why the plaintiff should be permitted to administer them. I grant leave to the plaintiff to administer interrogatories 1-16 to the first defendant.

6. [57]

   The appropriate order for costs is that costs be costs in the cause.