Choi v Dr Ong

HIS HONOUR: Lillian Choi was born in September 2011. She is accordingly 9 years of age. She is currently in Year 4 at Hurstville South Public School.

When Lillian was only 5 months old, her parents planned a trip to Vietnam to visit their family. In contemplation of doing so, they sought medical advice from their general practitioner, Dr Bar Ong. In particular, Lillian’s parents were concerned to know whether or not Lillian required vaccinations before leaving and generally regarding any health issues associated with travelling to Vietnam with an infant. Lillian’s parents were concerned, among other things, to receive advice about whether a Bacille Calmette-Guérin vaccination would be required. It is alleged in these proceedings that Dr Ong advised Lillian’s parents that the BCG vaccination was not necessary.

Lillian and her parents travelled to Vietnam on 17 April 2012 and returned on 27 July 2012. The family travelled to Vietnam a second time in February 2013, but only stayed for a few weeks. In taking both trips, Lillian’s parents relied on Dr Ong’s advice that Lillian did not need the BCG vaccination before travelling. However, in the events that occurred, Lillian became severely ill and was admitted to hospital in Vietnam during their second visit. It is alleged in these proceedings that she contracted tuberculosis meningitis, presumably on the first trip, and that this would have been prevented if she had been vaccinated beforehand.

Lillian alleges that Dr Ong breached his duty of care in that he failed to provide any or any adequate advice or guidance concerning the risks of contracting tuberculosis in Vietnam and the benefits of, or the need for, appropriate vaccinations before travelling there.

Liability has not been admitted although Dr Ong has not served a report dealing with this issue. By his defence filed on 28 August 2015, Dr Ong maintains that his treatment of Lillian was competent and accorded with widely accepted practice in Australia, supported by professional peer opinion, in accordance with s 5O of the Civil Liability Act 2002. In the absence of any report from Dr Ong adverting to this issue, I am unable accurately to evaluate the strength of this part of his response to the statement of claim.

Lillian’s case on liability would appear to rely solely upon a report from Professor Dominic Fitzgerald dated 28 August 2014. His opinion given in response to some pertinent questions is as follows:

It will presumably be Lillian’s case if the matter proceeds that her parents would, if appropriately advised of the risks associated with travel to a country where tuberculosis was endemic, have instructed Dr Ong to administer the vaccine and that Lillian would not have contracted tuberculosis in the circumstances. Despite the fact that Dr Fitzgerald has indicated that a recommendation for administration of the vaccine was not routine, I am assuming in the absence so far of evidentiary statements from Lillian’s parents that they would have requested the vaccine if properly advised.

I am asked in these circumstances to approve a settlement of the proceedings upon the basis of a judgment for Lillian for $210,000 plus costs. There are no solicitor and client costs. I am told that there may be some $15,000 in future treatment expenses but they have not been specified or described.

As the result of her infection, Lillian continues to suffer from the medical and physical issues described in her father’s affidavit sworn on 21 October 2020 as follows:

In the course of the application, I raised the issue of Lillian’s school reports and whether there was anything useful that could be gleaned from the way in which she was progressing at school. In 2018, when Lillian was in Year 1, she was reported to be working “below expected stage outcomes” in English and maths although “has made some progress… and with additional support is working towards achieving her goals”. Lillian was similarly reported to be working below the expected grade levels in 2020 in maths in both semesters in Year 3, and below grade expectations in English in the second semester. Her overall achievement levels have varied between basic and sound. Lillian’s school reports for Year 2 in 2019 are for present purposes to the same effect.

In referring to these reports and the comments they contain, I acknowledge that one should not draw any final conclusions and that a pattern of a child’s academic progress needs to be considered, rather than isolated assessments in a small range of school years. However, Professor Fitzgerald has indicated “TB meningitis may have neuro-cognitive sequelae manifesting with learning difficulties, cognitive impairment, hearing deficit, motor/co-ordination problems, seizures, cranial nerve palsies, hydrocephalus and cerebral palsy”. Professor Fitzgerald has quoted a study suggesting that there is “a 36.7% chance of survival without neurological sequelae in children developing tuberculosis meningitis”. He observed that Lillian had “extensive parenchymal disease without seizures and persisting but stable hydrocephalus”. Lillian has “extensive left temporal lobe disease”. He recommended that “her neuro-cognitive status” should be reviewed “in the light of her academic performance in school” involving “an annual review by a paediatrician/paediatric neurologist/developmental paediatrician [as appropriate] with neuro-cognitive testing as dictated by her clinical course”.

Lillian’s father told Professor Scheinberg in 2015 that he and his wife continued then to have concerns with regard to Lillian’s speech and language development. They had previously been concerned about her physical development but reported that they considered Lillian had made good progress and that her fine motor skills were “only mildly affected”. Professor Scheinberg referred to the following relevant matters in his 6 November 2015 report:

In accordance with the recommendations, Lillian was referred for a psychological and cognitive functioning assessment to Professor Richard Mattick who reported on 28 December 2019. Professor Mattick was also provided with Lillian’s school reports. His summary of conclusions and findings in that report is as follows:

In assessing the application for approval of the proposed settlement, I must have regard to whether or not it is in Lillian’s best interests. The matters of present concern, as with all similar cases involving young plaintiffs whose conditions have arguably not yet settled, or about whose final prognosis there must necessarily remain some doubt, is that an unforeseen or unexpected change might occur so that the amount agreed upon turns out to be inadequate. My ability to judge these possibilities must ultimately be guided by professional expert opinion. The relatively recent views of Professor Mattick suggest that Lillian’s condition has settled and that her long-term prognosis is equivalent to that of a child who has not suffered the infection sustained by her in this case. In other words, the adequacy of the settlement sum can be considered upon the basis that Lillian’s condition will not change and that predictions, such as those offered by Professor Mattick, are reliable.

Lillian has fortunately if not somewhat remarkably emerged from her meningitis with limited problems, none of them major or disabling. Her squint does not appear to be a matter of great concern either to her or to her parents, whose opinion about their daughter’s progress I take to be of considerable importance. The amount of the settlement has factored into it a sum for future economic loss. That would appear to be an overly conservative, and hence generous, provision in the circumstances. I have also given consideration to what Lillian might expect to recover for non-economic loss as a percentage of a most extreme case. The settlement amount more than sufficiently takes account of both these heads of loss.

The proposed settlement would appear also to make a modest allowance for the prospect that Lillian will fail to establish any entitlement to damages. I consider that a small discount for the possibility that she might lose is appropriate.

Finally, Lillian’s parents have expressed a strong view that they are in favour of the proposed settlement of the proceedings. While I understand that view in the present circumstances, it is not a matter to which I can have particular regard here. This is not a case where the continuation of the proceedings is likely to have a detrimental effect upon Lillian directly, or vicariously because of stresses inflicted upon her parents.

I am satisfied on balance that the proposed settlement is in the best interests of the infant plaintiff and I propose to approve it. I therefore make the following orders: