Greenwood v South Eastern Sydney & Illawarra Area Health Service [2009] NSWSC 1279 (25 November 2009)

Last Updated: 26 November 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Greenwood v South Eastern Sydney & Illawarra Area Health Service [2009] NSWSC 1279


JURISDICTION:


FILE NUMBER(S):
20577 / 2001

HEARING DATE(S):
23 November 2009

JUDGMENT DATE:
25 November 2009

PARTIES:
Jack Anthony Greenwood bht Jodie Maree Greenwood (First Plaintiff)
Jodie Maree Greenwood (Second Plaintiff)
South Eastern Sydney & Illawarra Area Health Service (Defendant)

JUDGMENT OF:
Harrison J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
D Elliott (Plaintiffs)
P W Taylor SC with R H Weinstein (Defendant)

SOLICITORS:
Gerard Malouf & Partners (Plaintiffs)
F Menniti (Defendant)


CATCHWORDS:
PLEADINGS – application to amend – medical negligence – where plaintiff proposes to rely on loss of a chance of a better outcome – whether proposed amendment raises a different case to that pleaded originally – where application to amend made 11 years after the events said to give rise to the cause of action and 8 years after the current pleading filed – where hearing listed to commence in February 2010 – where amendment potentially futile or unfair to the defendant – application refused

LEGISLATION CITED:


CATEGORY:
Procedural and other rulings

CASES CITED:


TEXTS CITED:


DECISION:
Application to amend the statement of claim refused.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

PROFESSIONAL NEGLIGENCE LIST

HARRISON J

25 November 2009

20577 / 2001 Jack Anthony Greenwood bht Jodie Maree Greenwood and Jodie Maree Greenwood v South Eastern Sydney & Illawarra Area Health Service

JUDGMENT

1 HIS HONOUR: This is an application by the plaintiffs in a medical negligence case to amend their pleadings to include a claim for the loss of the chance of a better medical outcome.

Background

2 The first plaintiff was born on 11 August 1998. He sues by his tutor who is his mother. The proceedings were originally commenced by statement of claim filed on 26 June 2001. That document alleges that the defendant injured the first plaintiff as the result of a failure at the time of his mother's confinement to deliver him in a timely way. In particular, the plaintiffs say that the defendant breached its duty of care by failing to perform a Caesarean section instead of a vaginal delivery, permitted the second stage of labour to be prolonged, or failed to perform a Caesarean delivery when it knew or ought to have known that the delivery was likely to be obstructed.

3 The plaintiffs allege that as a result of the defendant's breach of duty the first plaintiff suffered an increased risk of cerebral vascular problems and suffered a left middle cerebral artery infarct leading to permanent right hemiplegia. The plaintiffs claim that as a result of these events the first plaintiff will need extensive medical treatment, including rehabilitation and the ongoing need for care. The plaintiffs contend that the first plaintiff has also sustained a reduction in his earning capacity. Associated losses are also claimed.

Consideration

4 By notice of motion filed on 18 November 2009 the plaintiffs seek leave to file an amended statement of claim. That application is supported by an affidavit of Christine Beshay sworn 18 November 2009. Among other things Ms Beshay annexes a copy of a report from Dr Geoffrey Parker dated 29 December 2008 which Ms Beshay says "raises the possibility of a finding of the 'loss of chance' of a better outcome" and that it is in the circumstances "desirable that the possibility be expressly pleaded even though it is not the plaintiff [sic] or the defendants [sic] primary case".

5 Dr Parker is a neuroradiologist. The plaintiffs would appear to have been in possession of his report since shortly after the date that it bears. In response to a request to provide an expert's opinion "on cause and timing of the plaintiff's cerebral infarct", Dr Parker proffered the following opinion:

"Up to 25% of cases of neonatal stroke are said to be idiopathic, although some cases of idiopathic stroke have been attributed to a thromboembolic event with the source of embolus unknown ...

The pathologic process in the plaintiff is not related, in my opinion, to the processes that cause birth asphyxia or diffuse hypoxic ischaemic encephalopathy. These processes cause a decrease in blood supply to the whole foetal brain of varying severity but should affect both sides of the brain and therefore should have a symmetrical appearance on imaging studies with involvement of both hemispheres. The plaintiff's right hemisphere and unaffected portions of the left hemisphere appear normal and I therefore believe that there is no evidence of diffuse hypoxic ischaemic encephalopathy. The plaintiff had normal Apgar scores at birth and did not require resuscitation so that birth asphyxia appears to have been considered unlikely on clinical grounds.

As the plaintiff's cerebral infarct does not appear to be related to diffuse hypoxic ischaemic encephalopathy, the injury may not be related to the prolonged second stage of labour. I would defer to the opinion of an expert neonatologist in this issue.

*****

Thus an antenatal onset of the left middle cerebral artery infarct is most likely on imaging grounds. It is my understanding that focal signs may be absent in neonates with ischaemic stroke, but an opinion from an expert neonatologist would be helpful to ensure that the plaintiff's good condition at birth is not inconsistent with this possibility.

*****

The plaintiff developed a left middle cerebral artery territory infarct that was initiated at some time between late July 1998 and 10 August 1998 and subsequently evolved into the area of macrocystic encephalomalacia visible on MRI scans. The infarct should have occurred antenatally in order to be visible on the ultrasound study obtained on 12 August 1998, about 19 hours after birth. The infarct is most likely to have occurred due to thromboembolism to the left middle cerebral artery, or possibly in situ thrombosis in the left middle cerebral artery. In some cases, the cause of neonatal cerebral infarction remains idiopathic i.e. unknown."

6 The plaintiffs promote that portion of Dr Parker's opinion as support for the contention that the plaintiffs have a case, which they should now be entitled to plead, that in the events that occurred, including the defendant's breach of duty, the first plaintiff lost the opportunity of a better medical outcome. Although this claim is not otherwise articulated it is presumably to the effect that an idiopathic neonatal stroke would have been capable of earlier detection, diagnosis and treatment, with the possibility of some kind of ameliorating intervention, if the first plaintiff had been delivered sooner and by implication at a time when the condition was less advanced and its deleterious effects capable of being prevented or reduced in severity.

7 Apparently in this context, and in substitution for the particulars of negligence described earlier, paragraph 19 of the proposed amended statement of claim adumbrates the following alternative particulars:

"a. Failing to counsel and/or advise and/or procure the Second Plaintiff's consent to induction upon initial admission on 3 August 1998 or shortly thereafter.

b. Failure to apprehend and advert [sic] and to manage risk factors for a complex delivery.

c. Failure to apprehend and advert to and manage risk factors of a perinatal stroke.

d. Causing and/or permitting the second stage of labour to extend beyond 1 hour.

e. Inappropriate use of Syntocinon therapy.

f. Failure to counsel, advise and/or procure the Second Plaintiff's consent to caesarean section at an early stage of the labour.

g. Failure to have the Second Plaintiff assessed by a specialist prior to 13:38 on 11.8.98.

h. Failure to advert to and manage appropriately the fact that the Plaintiffs were undergoing an obstructed delivery.

h. Failure to manage the obstructed delivery."

8 Paragraph 20 of the proposed amended statement of claim follows immediately upon these particulars and is in the following terms:

"20. Further and in the alternative the Defendant's negligent management of the Second Plaintiff's pregnancy and labour and the First Plaintiff's delivery denied to the Plaintiffs the chance of a better medical outcome".

9 No further elaboration of that allegation is to be found in the proposed amended statement of claim.

10 In opposing the application to amend, Mr P W Taylor of senior counsel who, with Mr Weinstein of counsel, appears for the defendant, draws my attention to a number of matters. First, no explanation has been given why the proposed amendment was not made earlier or, more pointedly, at some time shortly following receipt of Dr Parker's report by the plaintiffs. This submission also emphasises the fact that the present application is made some 11 years after the events giving rise to the plaintiffs' cause of action and some eight years after the original statement of claim was filed. It is also made in the shadow of the hearing, which is scheduled to commence on 22 February 2010. If the amendments bring forward a different case, or one that might involve investigations going back 11 years, particularly ones that were not prompted by the case as originally pleaded, it would be unfair and potentially prejudicial to expose the defendant to such a doubtful course.

11 Secondly, purely as a matter of form, the defendant complains that the proposed amendments are either unintelligible or obscure. This submission is made in the context of the way in which the case is otherwise pleaded. For example, paragraphs 4 to 15 of the proposed amended statement of claim are in the following terms:

"MATERIAL FACTS

4. In 1998 Jodie was pregnant with her first child, Jack. Her pregnancy, confinement and delivery were managed by the Hospital.

5. Jodie was admitted to the Hospital on 3 August 1998 for observation and treatment to due pre-eclampsia.

6. It was recommended to Jodie that the delivery be induced as a result of her underlying medical condition and the fact that she was "at term".

7. Jodie was anxious and reluctant to proceed with the induction but was eventually persuaded to agree to this and did agree to this on 10 August 1998.

8. The labour was long, painful, complicated and difficult. There was foetal malposition.

9. Jodie was [sic] required extensive and repeated epidural anaesthesia which comprised maternal expulsive efforts with contractions.

10. Uterine contractions were irregular.

11. Full dilation was achieved at around 10:00 hours (the commencement of second stage).

12. Labour was augmented with Syntocinon from around 10:00 hours.

13. There was an absence of descent of the foetal head despite full dilation and augmentation with Syntocinon during the whole of the second stage.

14. There was significant caput and moulding (compression of the head) through second stage and before then.

15. Jodie remained in second stage for 4 hours and 16 minutes when Jack's head finally descended at the end of the second stage and he was required to be delivered by forceps."

12 The defendant seeks rhetorically to emphasise the absence of any discernible difference between substantial proportions of the way in which the plaintiffs propose now to particularise their case in paragraph 19 and these paragraphs. To that extent the defendant contends that the proposed amendments are in effect either futile or unnecessary, as they do not appear to promote a case that departs from the plaintiffs' original contention that the defendant was negligent in permitting the second stage of labour to extend longer than it should have.

13 Thirdly, the defendant contends that paragraph 20 of the amended statement of claim is "incomprehensible". Without uncritically accepting or rejecting that submission, I take it to mean either that paragraph 20 is incapable of being distinguished from the plaintiffs' originally pleaded case or alternatively or additionally is in any event unsupported by anything contained in Dr Parker's 29 December 2008 report. In other words, paragraph 20 does not make plain precisely or even generally what loss of opportunity case the plaintiffs seek to make out, or the way that it differs from the way their case is currently formulated. The report of Dr Parker does not in terms support such a formulation.

Conclusion

14 I am not the trial judge and the whole of the evidence likely to be presented at the trial is not before me. It is in these circumstances inadvisable and inappropriate to comment on what the medical opinion to which I have been referred might ultimately be found to mean. It is for present purposes sufficient to observe that nothing to which my attention has been directed leads me to the view that the plaintiffs' proposed amendments raise a case that is different to the one pleaded in the original statement of claim. They allege that the second stage of labour was unduly and inappropriately prolonged. Whatever may be the consequences of that prolongation remain to be seen.

15 The first plaintiff would not appear to have suffered an hypoxic ischaemic event during his delivery. He was born with what appeared to be a cerebral artery infarct that occurred anywhere between late July 1998 and the day before his birth. The cause of that event may be unknown and may remain so. Dr Parker's opinion, upon which the plaintiffs rely on this application, does not suggest that the antenatal event would have been less damaging or less severe or capable of some more effective intervention if the first plaintiff had been delivered sooner or if the second stage of labour, whenever occurring, had been shorter.

16 The plaintiffs' application to amend is in my opinion futile. It is also too late. It is not fair to the defendant to require it at this late stage, when memories are fading, to meet some potentially new and inadequately specified case. As I have indicated, the proposal does not at one level propound a case that is actually different to the case as originally pleaded. However, if the chance exists that it is different and the defendant opposes the application to amend to rely upon it, the circumstances of this case demand that the application should be refused.

Order

17 The plaintiffs' application to amend the statement of claim is refused. I will hear the parties on the question of the costs of the application if so requested.

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LAST UPDATED:
25 November 2009