Ahmad v South Western Sydney Local Health District

1. [1]

   On 16 December 2014 the plaintiff underwent a laparoscopic cholecystectomy at Bankstown Lidcombe Hospital. On 19 December 2014, following the detection of a bile leak, the plaintiff was again taken to theatre where it was ascertained that his common bile duct had been transected during the earlier operation. A Roux-en-Y loop was constructed and hepaticojejunostomy to the common hepatic duct was performed.

2. [2]

   The plaintiff commenced proceedings against the Hospital by a statement of claim filed on 14 March 2017. The particulars of negligence were said to be these:

3. [3]

   A medical report from Professor Arthur Richardson dated 23 March 2016, and presumably served to comply with r 31.36 Uniform Civil Procedure Rules 2005 (NSW), made a number of comments in relation to the inadequacies of the Hospital notes both as to the identity of the doctors who made the notes, the time of making the notes and to what transpired during the operation.

4. [4]

   A report served on behalf of the Hospital by Professor Michael Cox made similar remarks.

5. [5]

   Although the defendant admits in the defence that the common bile duct was transected, the way in which that occurred does not appear in the Hospital notes. Further, the operation report is reasonably brief and it is not apparent if the appropriate way of performing the operation as set out in the reports of Professor Richardson and Professor Cox was followed.

6. [6]

   It is in those circumstances that the Registrar granted leave to the plaintiff to administer interrogatories. The plaintiff served a Notice to Answer Interrogatories under cover of a letter dated 15 January 2018.

7. [7]

   The solicitors for the Hospital replied on 27 February 2018 listing the interrogatories that they objected to answering and the basis for the objections. The letter concluded by indicating the questions they consented to answer, but without providing the answers. However, that letter did not entirely accord with the Statement in Answer to Interrogatories dated considerably later than the letter on 23 August 2018.

8. [8]

   I was not provided with the Statement in Answer to Interrogatories until during the course of the hearing, and it was only then that it became apparent that the letter from the Hospital’s solicitors of 27 February 2018 did not accurately represent the position that the hospital was taking with respect to the interrogatories. I was also then provided with an amended form of the Interrogatories, although the amendments made were relatively minor. I will mark that document as Exhibit A on the application.

9. [9]

   The dispute between the parties in relation to the Interrogatories led the plaintiff to file a notice of motion of 17 April 2018 seeking that the defendant answer Interrogatories served by the plaintiff in January 2018. It is that notice of motion with which this judgment is concerned.

Legal principles

1. [10]

   Rule 22.1 UCPR provides:

2. [11]

   Rule 22.2 provides:

3. [12]

   Since this is a claim for damages for personal injury the plaintiff must show in accordance with r 22.1(3) that there are special reasons why interrogatories should be allowed and must show that it is necessary for the order to be made.

4. [13]

   In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498 Garling J said:

5. [14]

   In Edwards v Hornsby Shire Council [2014] NSWSC 600, a case where personal injury damages were claimed, Schmidt J said:

The interrogatories

1. [15]

   It is convenient first to set out the interrogatories to which answers have been given.

2. [16]

   Dr Lim was the doctor who carried out the surgery. Dr Kourtesis was the consultant surgeon under whose care the plaintiff was admitted to the hospital. Dr Ooi was the doctor to whom Dr Lim spoke during the operation before it was converted to an open cholecystectomy via a right upper quadrant incision.

3. [17]

   One other matter should be mentioned before proceeding to discuss the disputed interrogatories. As I have noted, the statement of claim asserted, and the defence agreed, that the common bile duct had been transected. However, both Professor Cox and Professor Richardson refer at various places in their reports to the common hepatic duct being transected. Similarly, the particulars assert that the common hepatic duct was transected. The assertion in the statement of claim derived from Professor Merrett’s notes of the operation he carried out on 19 December 2014 involving the construction of a Roux-en-Y loop and the hepatico-jejunostomy.

4. [18]

   Mr Butcher of counsel explained the anatomy to me in this way:

5. [19]

   Although Mr Butcher said that the parties would need to sort out what were perhaps semantic differences (but maybe not, given the anatomy) between the doctors the matter did not directly affect the interrogatories. However, it resulted in amendments to questions 5(e), 6, 7 and 8. Further, question 5(e) asked if the surgeon transected the common hepatic duct, and the defendant agreed that she did.

The disputed interrogatories

1. [20]

   It should first be said that I consider that special reasons exist for the administering of interrogatories generally in this case. The matters referred to in sub-paragraphs [51] (a), (c) and (d) of Ahmed El Hayek all have relevance in the present case. I have also had regard, in reaching the views set out below, to what Hall J said in Keating v South East Sydney Illawarra Area Health Service (Supreme Court (NSW), Hall J, 7 July 2006, unrep) at [13] to [18] concerning the importance of having information at an early stage, especially in medical negligence cases, to ensure a level playing field and for minimising costs.

2. [21]

   Where I have concluded that an interrogatory should be answered, I have done so bearing in mind what Schmidt J said in Edwards regarding the interrogatory being necessary.

3. [22]

   I will now deal with each of the disputed interrogatories in turn, using the amended form put forward at the hearing of the motion.

4. [23]

   In my opinion, the objection taken is not a proper one. A party may only object to answering an interrogatory on one of the three grounds set out in r 22.2. Further, in In the matter of Gerard Cassegrain & Co Pty Ltd - Cassegrain v Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241, Ward J (as her Honour then was) said:

5. [24]

   It is also clear that particulars (a), (b) and (c) allege a failure to provide appropriate advice prior to the operation. The defendant, in its written submissions, says that it is oppressive to answer that question because of the width of the enquiries that would need to be made, and difficulties with recollecting events that occurred so long ago. However, the proceedings were brought within time, and the need for the question arises by virtue of the absence of adequate notes made at the time, as the experts have observed.

6. [25]

   In my opinion, this question should be answered.

7. [26]

   In his report of 23 May 2016 Professor Richardson said (at p.10):

8. [27]

   Those comments of Professor Richardson make highly relevant the experience of Dr Lim in carrying out the procedures identified in the interrogatories. Simply knowing, as interrogatory 2A(b) discloses, that Dr Lim was a Senior Registrar with FRACS in her first year post fellowship does not give the sort of information that Professor Richardson clearly needs to provide an opinion about whether it was appropriate for Dr Lim to continue with this operation in the absence of either a more experienced surgeon, or a sub-speciality surgeon, being present. When there is no dispute that Dr Lim transected the common bile duct, the answers to these interrogatories are necessary and should be provided.

9. [28]

   In his report dated 23 May 2016 Professor Richardson said (at p.13):

10. [29]

    It is difficult to accept the defendant’s objections. The significant matters in the extract above are the lack of evidence from the operation report about what was done. That is a critical matter for determining whether or not the duct was transected with or without negligence. The expert report makes those matters relevant. Since there is a defence pleaded in reliance on s 5O of the Civil Liability Act 2002 (NSW), I must assume the defendant will lead evidence. The way the operation was performed will have to be disclosed. It is hard to see, in those circumstances, how it is oppressive to do it now.

11. [30]

    This interrogatory should be answered.

12. [31]

    I do not understand the basis for the asking of these questions. As far as I can understand the procedure, what was being dissected was the gallbladder. There is no suggestion that any of the specifically identifiable parts such as the cystic duct, the cystic artery, the hepatic duct or the common bile duct should be dissected. In that way, any answers to these questions would not provide any information that was useful for determining the question of negligence.

13. [32]

    I do not understand where this question leads. It seems inconceivable that Dr Lim would have considered that she may have transected the common bile duct when nothing appears in the operation notes to that effect, nor is there any evidence that she acted in any way that would suggest she did consider that she had done that. If she had so considered, I would have expected either that a more experienced surgeon would have been called in or she would have attempted to rectify the situation herself. There is no assertion that she deliberately covered up any such error that she made. I would disallow this interrogatory.

14. [33]

    In his report of 23 May 2016 Professor Richardson said (at p11):

15. [34]

    The only particular of negligence relevant to these interrogatories is particular (d) which asserts a failure to undertake an operative cholangiogram. The defendant correctly asserts as the reason for not answering question 9 that there is no pleading of a failure to consider using intraoperative cholangiography. Indeed, it is difficult to see where an answer to that question would lead. The correct enquiry is the one that question 10 asks, namely, for what clinical reasons was intraoperative cholangiography not performed.

16. [35]

    That question is a reasonable one because Professor Richardson seems to suggest that it is not done routinely in all hospitals and it is controversial as to whether it prevents bile duct injuries. It is possible that there was some clinical reason or reasons for not using it. An answer to this question is likely to limit the issues in dispute because if some clinical reason is offered, that may be accepted by the experts as a sufficient justification. For these reasons I disallow question 9, but question 10 should be answered.

17. [36]

    The defendant’s objection is that the discussions between the doctors are irrelevant to the standard of care or the appropriate operative steps required during the operation. In circumstances where it is the Hospital that is being sued and not the operating surgeon, the whole issue of appropriate supervision by senior medical staff is a relevant issue in relation to the carrying out of the operation. The fact that Dr Lim needed to seek advice from Dr Ooi in the middle of the operation suggests that she needed some expert assistance about what to do at the stage the operation had reached and, possibly, how then to proceed. Where the experts have indicated that an open cholecystectomy in these circumstances is a difficult operation, what was asked by Dr Lim and what was said by Dr Ooi is most relevant to the standard of care being provided by the Hospital.

18. [37]

    Any discussions are also likely to be relevant to the s 5O defence. In the first place, Dr Lim was probably acting entirely in accordance with proper professional practice in seeking advice from a more senior colleague. But what was asked and what advice was given may also be determinative of that defence, partly because the operation was being performed on the hospital’s behalf by Dr Lim, and partly because the hospital is the defendant in the proceedings, and the arrangements it has in place between professional staff is relevant to that defence.

19. [38]

    This interrogatory should be answered.

20. [39]

    For similar reasons to those I gave with respect to question 12, Dr Ooi’s experience in carrying out the procedures listed is relevant to the standard of care that was provided to the plaintiff at the Hospital. That is particularly so where Professor Richardson has said that Bankstown Hospital has experienced sub-speciality surgeons in hepato-biliary surgery who could have been called on for assistance. Dr Ooi’s experience is therefore a relevant consideration when he was the doctor approached by Dr Lim during the operation. This interrogatory should be answered.

Conclusion

1. [40]

   Accordingly, I make the following orders:

   1. (1)

      The document headed “Proposed Interrogatories Amended” will be marked Exhibit A.

   2. (2)

      Interrogatories 6, 7, 8 and 9 in Exhibit A are disallowed.

   3. (3)

      The plaintiff is to serve an Amended Notice to Answer Interrogatories in accordance with this judgment by 6 September 2018.

   4. (4)

      The defendant is to answer the Amended Notice to Answer Interrogatories by 4 October 2018.