Irfan v Western Sydney Local Health District

1. [1]

   HIS HONOUR: On 21 July 2023, I rejected an application by Mr Irfan to rely upon the medical report of Professor Yan dated 22 March 2023: see Irfan v Western Sydney Local Health District [2023] NSWSC 845. A familiarity with that decision is assumed for present purposes.

2. [2]

   By an amended notice of motion filed on 18 November 2024, Mr Irfan (relevantly) seeks the following relief:

3. [3]

   The issue with respect to Dr Brooder has been resolved. These reasons therefore deal only with Mr Irfan’s concern that in the events that have occurred since my earlier decision, he should now be given leave to rely upon Professor Yan’s report. The burden of Mr Irfan’s concerns is that these proceedings give rise to a potential issue about the specialised neurosurgical issue of clot retrieval, in which it is accepted Professor Yan is a highly qualified expert, and that Dr Brooder’s reports, to the extent that they deal with that issue, are insufficient for Mr Irfan’s purposes. The defendants contend in response that Dr Brooder is eminently qualified to opine on that question and that Mr Irfan’s application offends the limitation concerning reliance upon more than one expert in a single area of specialty.

Background

1. [4]

   Professor Brew and Professor Yan are both trained neurologists: they are within the same field of specialty. However, unlike Professor Brew, Professor Yan has particular expertise in clot retrieval. That distinction is at the heart of the present application.

2. [5]

   In response to a series of questions, Professor Brew’s 25 July 2024 report provided the following answers:

3. [6]

   Since Mr Irfan’s earlier application, the first defendant has completed service of evidentiary statements, including the statement of Dr Andrew Martin, dated 20 October 2023. A relevant summary for present purposes of what happened on the day in question, taken from Dr Martin’s statement, is as follows.

4. [7]

   Dr Martin was employed as a Staff Specialist Neurologist at Blacktown Hospital at the time of the subject incident in May 2020. On Sundays, Blacktown Hospital is staffed by a 24 hour on-call consultant neurologist but there are no neurology staff on-site. On 17 May 2020, Dr Martin was the on-call neurologist for the hospital.

5. [8]

   At around 16.50 hours, he was contacted by the Emergency Department in relation to Mr Irfan. He reviewed Mr Irfan’s CT brain scan and CT angiogram remotely from home. Dr Martin says that without the CT brain scan and CT angiogram “I could not make a diagnosis or treatment plan”. At around 17.00 hours he called the Liverpool Network Hotline for clot retrievals and was put through to Dr Jason Wenderoth. Dr Martin describes Dr Wenderoth as an “interventionalist” [sic] at Liverpool Hospital.

6. [9]

   After reviewing the imaging, Dr Wenderoth told Dr Martin that he (Dr Wenderoth) had accepted Mr Irfan for clot retrieval at Liverpool Hospital and gave Dr Martin instructions in relation to his transfer. They also discussed whether Mr Irfan would derive benefit from thrombolysis. The clinical records reveal that the clot retrieval procedure was performed by interventionists at about 21.41 hours.

7. [10]

   Mr Irfan maintained that the following propositions emerge from this evidence of Dr Martin:

8. [11]

   Mr Irfan submitted that Dr Martin’s evidence is largely consistent with Professor Brew in relation to the distinction between the clinical practice and experience of an on-call neurologist as opposed to that of an interventionist. According to Professor Brew:

9. [12]

   The potential significance of the present dispute is also highlighted by Mr Irfan’s particulars of negligence which include the following:

10. [13]

    The defendants deny all particulars of negligence, including (l).

11. [14]

    Professor Yan is described on his website as a dual-trained neurologist and endovascular neuro-interventionist, a subspecialty which treats acute stroke, aneurisms and arterio-venous malformation.

12. [15]

    In his report, Professor Yan answers a series of questions concerning “thrombectomy” in addressing aspects of breach and causation including:

Consideration

1. [16]

   The defendants perceive that Mr Irfan’s desire to ensure that he is entitled to rely upon Professor Yan is inspired by the existence of differences between Professor Brooder’s 2 March 2023 report and his 31 March 2023 report. Professor Brooder is another neurosurgical expert qualified by Mr Irfan. The defendants point to the following portion of Dr Brooder’s earlier report said to support that perception:

2. [17]

   That has to be compared with what Dr Brooder said in his 31 March 2023 report as follows:

3. [18]

   The defendants wish to maintain that Dr Brooder’s earlier opinion, that Mr Irfan’s neurological treatment would not have included consideration of clot retrieval as an alternative treatment to thrombolysis, effectively forecloses any argument about that issue, even notwithstanding that on one view his later opinion is to the contrary. For reasons that are numerically understandable, the defendants did not, and do not, oppose Mr Irfan relying upon the opinion of both Professor Brew, a professor of neurology, whose 25 July 2024 opinion is extracted earlier in these reasons, or upon Dr Brooder. Professor Brew’s specialty is the same as that of Dr Brooder.

4. [19]

   Professor Brew has referred to the “subtle difference” in roles between a neurologist on-call and a neurointerventionist. It should be noted that, for obvious reasons, I did not have Professor Brew’s report when deciding a similar dispute in 2023. However, Professor Brew expands upon his reference to the subtle difference in roles, and appears clearly to endorse the existence of Professor Yan’s specialty as a neurointerventionist as what might be called a subspecialty.

5. [20]

   Professor Yan’s 22 March 2023 report was served on the first defendant on 28 March 2023. Dr Brooder’s reports dated 2 March 2023 and 31 March 2023 were served on the first defendant later on 3 April 2023. Professor Brew’s 25 July 2024 report could not have been served before that time. Unless I misunderstand the position, therefore, Professor Yan was the first specialist in the neurological field served upon the first defendant and yet the first defendant objects to it and not Professor Brew’s report served somewhat later.

6. [21]

   It is instructive in those circumstances to consider the defendants’ written submissions at paragraph 26 and 27:

7. [22]

   The defendants’ concerns about disruption, expense and delay referred to in those submissions have to be compared with what emerged in an exchange between Mr Cheney SC and me in the course of the application:

8. [23]

   In my view, the spectre of the defendants having to incur the time and expense of garnering expert evidence from an additional subspecialty seems more apparent than real. It does not appear to me to be a matter of much significance in this case. The issue of procedural or other prejudice is of course not decisive but these decisions are discretionary and the defendants have raised the issues of expense and delay.

9. [24]

   Practice Note SC CL 7 is instructive:

10. [25]

    In my opinion, this is such a case. The defendants will undoubtedly contend that Dr Brooder has expressed inconsistent opinions. Professor Yan may be better placed to give an objective opinion about that criticism than Dr Brooder. Professor Brew’s recognition of the subtleties would also tend to support Mr Irfan’s assertion that Professor Yan brings a unique perspective to the neurological landscape.

11. [26]

    Doing the best I can I consider that the principled considerations that support the restriction upon multiple experts should yield in this case to Mr Irfan’s concern to explore the comparison between the clinical indications for thrombolysis and clot retrieval. I will make orders 1A and 1B of the amended notice of motion filed on 18 November 2024.