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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hartfield v Calvary Healthcare ACT Ltd (No 3) |
Citation: | [2024] ACTSC 137 |
Hearing Date: | 6 May 2024 |
Decision Date: | 8 May 2024 |
Before: | Baker J |
Decision: | (1) The further Supplementary Report of Associate Professor Vince Lamaro is not admissible; and (2) Paragraphs [40] and [41] of the Further Amended Defence are struck out. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Admissibility of supplementary expert evidence – where evidence goes to issues which were previously the subject of extensive evidence – where other evidence on issues is already available – where evidence will cause or result in an undue waste of time – evidence excluded – application to strike out part of Further Amended Defence – where amendments are not responsive to changes in Amended Statement of Claim – application dismissed – whether necessary to plead s 110 of the Civil Law (Wrongs) Act 2002 (ACT). |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 110 Court Procedures Rules 2006 (ACT), rr 406, 407 Evidence Act 2011 (ACT), s 135(c) |
Cases Cited: | Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401 Hartfield v Calvary Healthcare ACT Ltd (No 2) [2024] ACTSC 33 |
Parties: | Emily Hartfield ( Plaintiff) Calvary Healthcare ACT Ltd ( Defendant) |
Representation: | Counsel D Toomey SC with D Richards ( Plaintiff) J Morris SC with E Elbourne ( Defendant) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) ACT Government Solicitor ( Defendant) |
File Number: | SC 251 of 2022 |
BAKER J:
Introduction
1․ The plaintiff, Emily Hartfield, seeks damages for medical negligence in relation to her assessment, diagnosis and treatment by the defendant when experiencing an ectopic pregnancy in 2019.
2․ The proceedings were heard before me from 11 September 2023 until 15 September 2023. On 19 December 2023, the plaintiff was granted leave to amend her Statement of Claim: Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401 (Hartfield (No 1)). The matter is now listed for further hearing and submissions before me on 13 and 14 May 2024.
3․ The proceedings were listed before me on 6 May 2024 at the request of the plaintiff in respect of a number of concerns relating to the defendant’s Further Amended Defence (which had been filed on 9 April 2024). During the course of helpful oral submissions from Senior Counsel for the plaintiff and Senior Counsel for the defendant, the issues between the parties were narrowed to the following applications of the plaintiff:
(a) An application for a ruling that the further Supplementary Report of Associate Professor Lamaro is not admissible in the proceedings; and
(b) An application to strike out paragraphs [40] and [41] of the Further Amended Defence.
4․ For the reasons outlined below, I have made the following rulings:
(a) the further Supplementary Report of Associate Professor Vince Lamaro is not admissible in the proceedings.
(b) Paragraphs [40] and [41] of the Further Amended Defence are struck out.
Background
5․ The factual background to these proceedings is set out in my judgment in Hartfield (No 1) at [5] – [14].
6․ In brief, on 31 July 2019, the plaintiff attended Calvary Public Hospital (the hospital) with left sided abdominal pain and per vaginum bleeding. The plaintiff had previously suffered an ectopic pregnancy in 2015, and she was concerned that she may have been suffering from a further ectopic pregnancy. The plaintiff was admitted to the hospital and assessed overnight, before being discharged on 1 August 2019 (the first admission). She returned to the hospital early on the morning of 2 August 2019 in severe pain (the second admission). Further testing at that time revealed that the plaintiff was suffering from a leaking or ruptured left ectopic pregnancy. The plaintiff was immediately admitted into emergency surgery for removal of her left fallopian tube.
7․ By way of Statement of Claim filed on 21 July 2022, the plaintiff alleged that in the first admission, the defendant, inter alia, failed to “appropriately assess, diagnose and treat” her, and that, as a result of its negligence, the plaintiff suffered both physical and psychological injuries.
8․ The proceedings were heard before me from 11 September 2023 to 15 September 2023. Following the exchange of written submissions after that hearing, the plaintiff sought leave to amend her Statement of Claim to formally particularise an alternative basis of liability.
9․ Specifically, the plaintiff’s primary case is that the defendant breached its duty to the plaintiff by discharging her rather than undertaking further investigations (including a laparoscopy) when she was first admitted to the hospital; that if a laparoscopy had been undertaken, it is likely that the ectopic pregnancy would have been seen and immediately diagnosed; and that on that diagnosis, the plaintiff would have been offered, and would have taken, the option of a salpingostomy (that is, a procedure for the repair, rather than the removal of the fallopian tube), thus preserving the possibility of future natural conception.
10․ The amendments to the Statement of Claim make clear that the plaintiff also advances an alternative case, which is that even if it was not appropriate for a laparoscopy to be undertaken (and/or if the ectopic pregnancy would not have been apparent on the laparoscopy), the defendant nonetheless breached its duty to the plaintiff by discharging her rather than continuing to monitor her pain. The plaintiff contends that if she had not been discharged, then even though the ectopic pregnancy would still have ruptured, the rupture would have occurred in hospital rather than when she was at home. The plaintiff contends that if her ectopic pregnancy had ruptured whilst she was in hospital, her psychological distress would have been lessened (as she would not have believed herself to be at risk of significant harm or death), and she would not have sustained ongoing psychological injury.
11․ The Amended Statement of Claim particularising this alternative case was filed and served on 20 December 2023, in accordance with my orders made on 19 December 2023.
12․ The defendant served a further Supplementary Expert Report of Associate Professor Vince Lamaro on the Plaintiff on 8 April 2024. The defendant filed a Further Amended Defence on 9 April 2024. I had ordered that the Further Amended Defence be filed on or before 2 February 2024: Hartfield (No 1). The reason for the delay in filing the Further Amended Defence is not apparent on the materials provided to me on this application. However, nothing turns on that for the purpose of the present application.
13․ On 25 April 2024, the plaintiff’s solicitors sent a letter to the solicitors for the defendant, which advised that the plaintiff objected to several specific paragraphs of the Further Amended Defence (and to the Further Amended defence more generally). The parties were not able to resolve the objections, and the proceedings were listed before me for hearing of this matter.
14․ As noted above, the issues between the parties were ultimately narrowed to an application for an order that the further Supplementary Report of Associate Professor Lamaro be ruled inadmissible, and for paragraphs [40] and [41] of the Further Amended Defence to be struck out. The bases for these applications are set out below.
Consideration
The admissibility of the further Supplementary Report of Associate Professor Lamaro
15․ In his further Supplementary Report, Associate Professor Lamaro was asked to respond to the following six questions:
(1) In your experience as a clinician, are there any practical constraints on retaining patients as inpatients in a hospital when their condition (including consequential pain arising from that condition) has not resolved or been definitively diagnosed? If so, what are those considerations?
(2) In your experience as a clinician, can patients with potentially adverse obstetric issues arising from an established pregnancy (including such issues as bleeding, possible miscarriage, pregnancy of unknown location or possible ectopic pregnancy) who are admitted to hospital suffer from stress, anxiety or concern (either due to the condition itself or the potential consequences or complications of the condition or other issues)?
(3) Whether the plaintiff was in hospital or at home, was the nature of her medical condition and its progress something that had the potential to be psychologically distressing or traumatic to her, irrespective of her location? Why?
(4) Assume that the patient did have some abdominal discomfort or pain at discharge. Would that discomfort or pain alone (and absent any other adverse clinical sign or symptom) have constituted sufficient clinical or other grounds to keep her in hospital at the time of her discharge on 1 August 2019?
(5) Having the benefit of a diagnosis, was the nature of the plaintiff’s medical conditions and its progress something that was likely to differ as a result of her location, or was its progress determined by the nature of the condition? Why?
(6) Are there any other comments you wish to make with respect to the plaintiff’s new pleading or the further evidence or any change you wish to make to your earlier opinion?
16․ In his answers to question 1, Associate Professor Lamaro referred to the challenges faced by emergency departments in public hospitals in Australia. He said that prolonged inpatient stays for diagnostic purposes are not always feasible or standard practice and concluded that the plaintiff’s treatment (including her discharge) was appropriate.In answer to question 4, Associate Professor Lamaro reiterated that even if the plaintiff had some abdominal discomfort or pain on discharge, it would not have been standard practice to keep the plaintiff in hospital given the symptoms she exhibited.
17․ In his answer to question 5, Associate Professor Lamaro stated that the nature and progression of the plaintiff’s condition were determined solely by the condition itself rather than by her location, and that the ultimate outcome of her condition would have been unchanged whether she was in hospital or at home. He reiterated that “[a]t no point could a conservative surgery be carried out once the diagnosis [of an ectopic pregnancy] became clear”.
18․ In his answers to questions 2, 3 and 6, Associate Professor Lamaro explained that stress and anxiety are common in patients admitted to the Emergency Department with obstetric issues related to a potential or established pregnancy. He suggested that the nature of the plaintiff’s medical condition and its progression had the potential to be psychologically distressing, whether the plaintiff was in the hospital or at home when her fallopian tube ruptured.
19․ Mr Toomey SC submitted that the defendant should not be permitted to adduce Associate Professor Lamaro’s answers to questions 1 and 4. He noted that the appropriateness of the plaintiff’s discharge had always been central to the plaintiff’s claim, and that this issue was the subject of extensive evidence in an expert conclave (in which Associate Professor Lamaro was a witness) at the previous hearing.
20․ In these circumstances, Mr Morris SC did not press the Associate Professor’s answer to questions 1 and 4.
21․ Although Mr Toomey SC did not make the same submission in relation to Associate Professor Lamaro’s response to question 5, I consider that the same reasoning applies equally to this question. The question addresses the effect of the plaintiff’s discharge on her medical outcome, which has always been a primary issue in the proceeding. This issue has already been the subject of extensive evidence in the expert conclave. As such, the response to question 5 should also be excluded.
22․ Following Mr Morris’ reasonable concession and my finding in relation to question 5, the aspects of Associate Professor Lamaro’s report that remain for determination concern the opinions expressed by the Associate Professor in answers 2, 3 and 6 concerning the distress and stress that is experienced by women presenting to emergency departments with obstetric issues concerning pregnancy, and the likelihood that the plaintiff would have been distressed regardless of her location when her fallopian tube ruptured.
23․ I accept that evidence of this nature falls within the expertise of the Associate Professor, who, as a gynaecologist and endoscopic surgeon at St Vincent’s hospital, would be well familiar with the presentation of women presenting to emergency departments with obstetric issues.
24․ However, as Mr Toomey SC submitted, it is not contentious that women who present to emergency departments with obstetric issues related to the potential or established pregnancy often experience significant stress, anxiety and concern. Importantly, the Court already has the benefit of psychological reports from Dr Stephen Allnutt, forensic psychiatrist, and Dr Antonella Ventura, psychiatrist. At the resumed hearing next Monday, the defendant will call evidence from Dr Yvonne Skinner, Consultant Psychiatrist. These experts have considerably greater expertise to comment on the psychological issues in issue in comparison to Associate Professor Lamaro.
25․ The Court has only two days to conclude the hearing of the evidence and submissions next Monday and Tuesday. The parties were not available on any other dates that were offered by the Court. In these circumstances, there is a particular need to ensure that the Court’s time is used efficiently, and only for the purpose of hearing evidence that can have a real bearing on the issues in dispute.
26․ In my view, the probative value of Associate Professor Lamaro’s evidence concerning distress and anxiety is substantially outweighed by the danger that the evidence may cause or result in an undue waste of time.
27․ Accordingly, I exclude the remainder of Associate Professor Lamaro’s report under s 135(c) of the Evidence Act 2011 (ACT).
The strike out application
28․ Paragraphs [40] and [41] of the Further Amended Defence provide as follows:
40․ The Defendant relies upon section 110 of the Civil Law (Wrongs) Act 2002 with respect to the alleged duty and alleged breach:
- A hospital cannot, as a practical matter, retain every patient as an inpatient until their medical condition has favourably or fully resolved without any risk of harm; and
- A hospital is entitled to discharge a patient with a medical condition which has not favourably or fully resolved, following clinical review, with advice to seek medical review or return in the event of any concern or deterioration.
41․ The functions required to be exercised by the hospital are to be decided by reference to the broad range of its activities (and not only by reference to the matter to which the proceedings relates).
Particulars
In accordance with the expert opinion of Dr Lamaro:
- it is commonplace for clinically stable patients to be discharged from hospital with some pain or discomfort, as part of their recovery;
- it is commonplace for clinically stable patients to be discharged from hospital with instructions about when to return;
- it is commonplace for clinically stable obstetric/gynaecological patients to be discharged from hospital for further tests and follow up in an outpatient setting such as the Outreach Programme;
- clinically stable obstetric/gynaecological patients who are having a miscarriage or have a PUL are commonly discharged with advice, until further developments occur which enable a definitive diagnosis to be made;
- keeping all patients with discomfort, pain and/or no definitive diagnosis in hospital until their diagnosis is definitive or they have no pain or discomfort at all is not clinically supported, including for this patient, and would overburden the hospital system.
29․ Section 110 of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act)provides:
110 Principles about resources, responsibilities etc of public or other authorities
The following principles apply in deciding in a proceeding whether a public or other authority has a duty of care or has breached a duty of care:
(a) the functions required to be exercised by the authority are limited by the financial and other resources reasonably available to the authority for exercising the functions;
(b) the general allocation of the resources by the authority is not open to challenge;
(c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not only by reference to the matter to which the proceeding relates);
(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.
30․ As the evidence concerning standard practice in Associate Professor Lamaro’s further Supplementary Report was not pressed, Mr Morris SC accepted that the particulars specified in paragraph [41] cannot be included. However, he indicated that he proposes to review the evidence given in the expert conclave to determine whether there was any evidence given in the conclave concerning this issue which may support the position taken in paragraph [41]. As such, he pressed the inclusion of paragraph [41] as well as paragraph [40].
31․ Mr Toomey SC contended that the amendments made in [40] and [41] of the Further Amended Defence were not responsive to the amendments that had been made by the plaintiff, with the Court’s leave, to particularise the plaintiff’s alternative case.
32․ In reply, Mr Morris SC explained that paragraphs [40] and [41] “raise the simple point” that it is not practical for “every hospital [to] retain … every patient until the medical condition is favourably resolved”.
33․ I accept the plaintiff’s contention that the amendments made in paragraphs [40] and [41] of the Further Amended Defence are not responsive to the amendments to the plaintiff’s Amended Statement of Claim. As Mr Morris’ concession concerning questions 2 and 4 of Associate Professor Lamaro’s report properly recognised, the appropriateness of the plaintiff’s discharge had always been central to the plaintiff’s claim. The plaintiff’s alternative case, like the primary case, relates to the consequence of the hospital’s decision to discharge her: whilst the primary case concerned the consequences of the decision to discharge the plaintiff in depriving her of the potential for a laparoscopy, the alternative case concerns the consequences of the decision to discharge on her psychological health (in particular, the discharge meant that the plaintiff underwent the rupture of her fallopian tube at home, rather than in a hospital environment, where emergency surgery could swiftly be undertaken). In these circumstances, I will strike out these paragraphs of the Further Amended Defence.
34․ However, I wish to make clear that the striking out of those paragraphs of the Further Amended Defence does not preclude the defendant from making submissions concerning the application of s 110 in the present proceedings.
35․ I do not accept that the defendant was required to plead s 110 of the Wrongs Act for that provision to have operation. Rule 406 of the Court Procedures Rules 2006 (ACT) requires a party to identify any “specific provision” where a claim or defence under statute is relied on. Section 110 does not constitute a “defence”. Otherwise, the pleading is to “be as brief as the nature of the case allows”, “contain a statement in a summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved” and “state specifically any matter that if not stated specifically may take another party by surprise”. Rule 407 also requires that in a defence, a party must specifically plead any matter that the party alleges makes a claim of the opposite party not maintainable; or raises an issue of fact not arising out of a previous pleading.
36․ Mr Toomey SC contended that the plaintiff was taken by surprise by the defendant’s reliance upon s 110 of the Wrongs Act. He contended that if the plaintiff was aware that the defendant intended to rely on s 110, she may have “[sought] to adduce evidence in her own case which demonstrates that the resources factor… in fact had no role to play in the circumstances of this case”, such as “evidence of who was there on the night, how many beds were taken, who was rostered on”.
37․ This complaint may have carried weight if the defendant had sought, at this late stage of the hearing, to rely on evidence of resourcing issues that operated on the particular day that the plaintiff was discharged (for example, a submission that on the day of discharge, the Emergency Department of Calvary Hospital was operating at full capacity). The defendant’s submission is not of this nature. The defendant simply wishes to make the general submission that, in determining the questions of duty and breach, the Court must bear in mind that, “as a practical matter”, a hospital cannot retain every patient until their medical condition is favourably resolved. I do not accept that the plaintiff is taken by surprise by this submission.
38․ As Mr Morris SC submitted, s 110 of the Wrongs Act requires the Court to consider specified principles in determining whether a public authority has a duty of care or has breached a duty of care. One of those principles is that the functions required to be exercised by the authority are limited by the financial and other resources reasonably available to the authority for exercising the functions. The Court is obliged to apply this provision in determining the questions of breach and duty. This obligation arises regardless of whether s 110 has been expressly pleaded by a defendant.
Orders
39․ For the above reasons, I make the following orders:
(1) The further Supplementary Report of Associate Professor Vince Lamaro is not admissible; and
(2) Paragraphs [40] and [41] of the Further Amended Defence are struck out.
I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 8 May 2024 |