Cerulli v South Western Sydney Local Health District

1. [1]

   HIS HONOUR: Ernestina Cerulli died on 14 November 2020 of causes legally unrelated to any issue in these proceedings. However, in their capacity as her executors, the plaintiffs have commenced the present proceedings alleging that when the deceased was an inpatient at the defendant’s hospital in January and February 2020, it inappropriately administered, or failed properly to administer, her Candesartan medication for the maintenance of her blood pressure. The plaintiffs allege that her blood pressure rose to dangerous levels as a result and that she suffered a small left thalamic intra-axial bleed. Her injuries and disabilities are specified in a statement of particulars filed on 22 October 2020 with the statement of claim.

2. [2]

   The defendant has denied that it was negligent in its treatment of the deceased.

3. [3]

   The plaintiffs have served a list of interrogatories upon the defendant to which, with one caveat, the defendant does not object. The plaintiffs maintain that the defendant should be required to answer these interrogatories now. The defendant maintains that it should not be required to do so until further things happen. This is explained below.

4. [4]

   The plaintiffs’ proposed interrogatories are as follows:

5. [5]

   The defendant perceives that these questions suggest that the plaintiffs propose to dispute the integrity of the defendant’s medical records and amount in substance to an allegation of dishonesty or conduct amounting to fraud. The statement of claim contains no suggestion of this type. The plaintiffs have, however, foreshadowed that they propose to obtain the opinion of an expert forensic document examiner to support their suspicions. The plaintiffs contend that they should be provided with the defendant’s answers to the interrogatories before that occurs in order that their expert can take those answers into account in expressing his or her view on the authenticity of the medical entries.

6. [6]

   The defendant, on the other hand, submits that it should not be required to do so before or until the expert examiner’s report, if any, is to hand. The defendant submits that if that approach is adopted, and the report raises no issue about the authenticity or integrity of the medical records in question, the answers to the interrogatories could then be provided “relatively quickly”. However, if the expert report questions the authenticity or integrity of the medical records, then the fraud alleged will need to be pleaded so that the answers to the interrogatories may be provided with full knowledge and appreciation of any alleged wrongdoing.

Disposition

1. [7]

   I do not think that the defendant’s contentions are correct.

2. [8]

   The pleadings are closed. The plaintiffs do not allege fraud in their statement of claim. That is unsurprising. In order to attempt to prove their case, the plaintiffs have sought and have been provided with medical records that deal with the deceased’s treatment by the defendant. So much is uncontroversial. However, having been provided with the medical records, and having examined them in the light (presumably) of what they presently understand occurred in January and February 2020, the plaintiffs have concerns about whether the medical records are, or may be, in all respects an accurate record of what occurred. Without wishing to make allegations that may be without substance, the plaintiffs have sought to interrogate the defendant on the limited issue of the accuracy of its medical records. They wish to instruct their expert document examiner with the benefit of that more detailed information before finalising their position concerning the documents. Even assuming that the expert in due course were to express a doubt about the authenticity or reliability of the medical records, that would not appear to me to be something that would necessarily generate the need further to amend the statement of claim so as to plead fraud or indeed to amend it for any reason at all.

3. [9]

   The burden of the defendant’s position is that it anticipates that there is or may be some unfairness in the course proposed by the plaintiffs in as much as the requirement that it answer the interrogatories without, or before, knowing precisely what the plaintiffs may allege has the potential to expose the deponents to some forensic or other disadvantage. I do not think that is correct.

4. [10]

   The defendant has agreed to answer the plaintiffs’ interrogatories. Those answers must be truthful. They must be truthful whatever the plaintiffs presently allege, or may later allege. It is entirely beside the point that the plaintiffs contend, if they do, that the medical records, to the integrity or reliability of which the interrogatories are directed, have suspicious entries or may have been improperly altered or amended.

5. [11]

   In short, having agreed to answer the interrogatories served by the plaintiffs, the defendant should answer them now. Whatever course the plaintiffs may take upon receipt of the answers is not, and should not be, the standard against which, or the context in which, the defendant’s answers are to be formulated.

Orders

1. [12]

   Having regard to the parties’ competing proposals for the further conduct of the proceedings that were circulated pending my determination of this issue, I will make the following orders:

   1. (1)

      Note the defendant on 27 January 2022 consented to respond to the plaintiffs’ Notice of Interrogatories dated 13 January 2022.

   2. (2)

      Defendant to produce answers to the plaintiffs’ interrogatories by 11 March 2022.

   3. (3)

      Plaintiffs to serve any forensic document expert reports within 7 days of receipt of answers to interrogatories.

   4. (4)

      Parties to arrange and attend a mediation or ISC by 27 May 2022.

   5. (5)

      Matter listed for PNL directions on 10 June 2022.