Le Brun v Joseph - another Appeal lost...

Posted on April 29, 2010 by Julian Johnson

For the 3rd time in so many months, the Court of Appeal has dismissed a Plaintiff's appeal in relation to a medical negligence claim.  This time in the matter of Le Brun v Joseph + Or [2010]. WASCA 52, delivered on 24 March 2010.

This decision follows on the heels of the Court of Appeal's decision in McLennan v McCallum [2010] WASCA 45, in which I acted for the Appellant on Appeal [but not at it's initial trial]. 

In Le Brun, Mr Le Brun, by his mother (because of his disability, he could not bring the claim in his own right), appealed against the decision of District Court Judge McCann, who at the case's initial trial had found negligence on the part of GP Dr Joseph and Kalgoorlie Hospital, but was not satisfied that such negligence had caused any loss and consequently dismissed the claim.

The case arose from alleged failure on the part of the Defendants, who were a hospital and general practitioners, to further investigate headaches experienced and reported by Mr Le Brun. 

Mr Le Brun's case was if further investigations had occurred (either CT or consultant specialist review) his undiagnosed brain abnormality, an Arteriovenous Malformation [AVM] would have been identified prior to its rupture, and treatment therefore would/may have avoided the catastrophic disability he suffered following such AVM's rupture. 

Interestingly, the trial judge (and on appeal this was supported) found that it was likely there was not actually any connection between the AVM and Mr Le Brun's headaches.  This raised an interesting legal issue which was not decided on the appeal (McLure P averted to it, but confirmed it did not need to be decided). As indicated below, it was accepted that if a CT scan had been performed to investigate Mr Le Brun's headaches, this would, regardless of whether they were connected or not, have probably lead to identification of the AVM.

As stated above, Judge McCann was with Mr Le Brun in finding that both the hospital and Dr Joseph ought to have arranged a CT scan and so were negligent in not doing so.

The "problem" with Mr Le Brun's case was that Judge McCann was not satisfied that Mr Le Brun, had he undergone such investigation and therefore probably had his AVM diagnosed, would have undergone any treatment prior to such AVM's rupture, which would have avoided such rupture and its catastrophic consequences.  In other words, Judge McCann was satisfied there had been a lack of care, but not that this had made any difference to the outcome.

Judge McCann found, based on the (it seems to me compelling) evidence of Dr McAuliffe and others, that had Mr Le Brun undergone a CT scan and his AVM been diagnosed, he would have been recommended to undergo radiosurgery of the same.  It was common ground that if this recommendation had been followed, it would not, by the time of the rupture, have taken place and so the rupture would not have been avoided.  

In order for there to have been any likelihood of treatment altering Mr Le Brun's outcome, he had to, for some reason have elected to undergo urgent microsurgery, rather than radiotherapy [confirmed on appeal - see paragraph 138].  The evidentiary problem was that Mr Le Brun could put forward no convincing expert evidence to counter Dr McAuliffe and others evidence that this would not have been at all likely to have been the path recommended. Dr McAuliffe and the other witnesses relied upon by the defendants were particularly compelling, because they were likely to have been the very specialists who would have been involved in Mr Le Brun's care and the providers of advice to him as to his options etc, had his AVM been diagnosed prior to rupture.

The Court of Appeal lead by Newnes JA concluded that McCann J's analysis and findings referred to above were correct. On my reading of the decision, no point of significant principle was relied upon in this respect.  The appeal court's decision involves a careful examination of the evidence and explanation of their reasons for agreement with the trial judge.  The only intriguing comment is at paragraph 183 raising the question of whether the High Court's decision in Imbree, should now alter the trial judge's finding that a lower standard of care should be expected of a junior doctor, than had she been more experienced.

Comment

This remains a decision which logically I am uneasy about.

The health professionals were negligent and because of this, the AVM was not diagnosed before it's rupture.

Although compelling as to what was the most likely path, had such diagnosis occurred, the evidence of Dr McAuliffe et al could not exclude the possibility (not probability) that the CT scan may have shown something that would have lead to advice to undergo microsurgery, rather than radiosurgery and so avoided the outcome.  

One expert witness confirmed that he felt there may be signs on the post-rupture imaging that may have suggested narrowing that may, if present pre-rupture have lead to different recommendations being made.   Therefore, although it was most likely that no evidence of the impending rupture would have shown up on CT/MRI etc, there was still a chance something may have been evident.  After all, we do know that within a month of when this CT should have been performed, in July 1999, it did rupture.

It does seem to me harsh that in such a catastrophic outcome, the negligent parties can 'exploit' or at least benefit from the unknown (which results from their lack of investigation) and 'avoid' liability through an exercise in probabilities, because the certain answer that better care would have given, is lost.  Should the culpability of the defendants not in some way feed into resolution of questions of this nature, when their breach causes the uncertainty in the first place? 
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Court of Appeal reject Davy Appeal

Posted on November 22, 2009 by Julian Johnson

 The Court of Appeal delivered its decision on 7 Oct 09, rejecting the losing patient's appeal against District Court Judge Wager's decision, dismissing her claim at trial.  The lead decision was delivered by Justice Newnes, with whom the 2 other members of the Court agreed.

The case concerned alleged negligent medical care following Ms Davy undergoing knee replacement surgery in February 2004.  Ms Davy claimed that the public hospital, Sir Charles Gairdner Hospital, at which she was receiving post-operative care was negligent in failing to arrange more urgent review and intervention when she developed post-operative swelling and signs of infection, ultimately leading to her requiring major further surgery.  Interestingly, it was clear these infection issues did not arise until July 2004, so 5 months after her surgery.

The case overwhelmingly depended upon the issue of whether Ms Davy was to be believed as to her claimed attempts to contact the hospital's orthopaedic department to try to arrange her review, when her post-operative problems arose.

Judge Wager, the District Court judge was not convinced that Ms Davy's claims were reliable, largely because she found that Ms Davy's statements as to her attempts had varied over time and so in Judge Wager's view, were ultimately unreliable.  Judge Wager also noted that Ms Davy's GP's records did not suggest she had raised concerns in relation to her knee's condition, at a series of consultations after she claimed the problem had arisen (and after it was clear she had raised it with such GP).  On the other hand, it was clear that Ms Davy had phoned the orthopaedic department repeatedly over the relevant period (this was supported by her phone records).

Because of Judge Wager's rejection of Ms Davy's evidence (she found Ms Davy was "an honest, but unreliable historian"), she found the hospital were not negligent and there was not a need for the hospital to have arranged review and treatment of Ms Davy more urgently than occurred.

In a sense the appeal was a brave one.  It is well recognised principle that because an appeal court do not have the trial judge's advantage of seeing and hearing the manner in which witnesses give evidence, they are generally very slow to interfere with conclusions reached by a trial judge which are based on credit/truthfullness of a witness.

The above points were made clear by Justice Newnes, who found there was no merit in Ms Davy's attacks upon the trial judge's conclusions, which he confirmed were all open to her, even if contrary more favourable conclusions could have been made.

The case is again a good reminder of the difficulty of appeals when a trial judge has made adverse credit findings.  If a trial judge makes adverse findings about a plaintiff or their witness' evidence that are 'harsh' (perhaps because based on relatively minor errors etc) there is often little that can be done.  In a sense, in such cases, often an appeal is not really open.

It is also a very good reminder of the need to prepare for trial carefully and particularly to ensure all important witnesses are reminded of any previous statements or sworn evidence they may have given relevant to the facts of the case (which may have been given quite some time earlier).  This is absolutely critical in cases where the primary facts are the fundamental dispute (as here).  In this case, Ms Davy's evidence in the witness box diverged in some respects from statements she had made, particularly in answers to interrogatories.  

 

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When Special Circumstances are not "Special" (in my view)

Posted on October 18, 2009 by Julian Johnson

As is well known, I act for Billy Wright, the 61 year old aboriginal man, who is the Plaintiff in a medical negligence claim against Broome Hospital in relation to medical care he received at such hospital in July 2004.

Billy's case arose from his attending such hospital with an acute onset of severe abdominal pain, which he identified when he awoke on 3 July 2004.  After being kept for observation for an hour or so, Billy was sent home.  He was taken back to hospital about 40 hours later by family and by this time was acutely unwell and at danger of not surviving, due to septic shock/sepsis.

Billy's claim proceeded to trial before Judge Fenbury of our District Court, with days of hearing in Broome and Perth late last year and early this year.

Pleasingly, Judge Fenbury found in Billy's favour, concluding the hospital had been negligent in its care of him and awarded him damages when he delivered his decision in late March 2009.  Judge Fenbury found that the hospital ought to have kept Billy for observation and further investigation and not sent him home when they did (see Wright -v- WA Country Health Service [2009] WADC 46) .

The hospital have appealed, though not in relation to the finding it was negligent, only as to Judge Fenbury's finding that such negligence caused harm to Billy, through progression of his illness while he was at home (though this point does not seem, with respect, to have been properly appreciated by Justice Newnes, see his summary of the appeal at [5] of the decision referred to below).

On 9 October 2009, argument occurred as to whether the hospital should pay Billy some or all of his compensation, pending hearing and determination of his appeal.

Billy had explained that he wished to utilise a part of the damages he has been awarded in order to purchase a "new" vehicle (estimated at a cost of $25,000) to transport his ill wife, who requires regular 3 times per week dialysis treatment, from their remote community home, to Derby, which is where such treatment is provided.

The well accepted rule is that generally a successful party should be entitled to be paid damages they are awarded, even if an appeal is lodged.  It is accepted that 'special circumstances' are needed to be shown for the unsuccessful party to avoid such obligation to make payment.

After hearing argument on 9 Oct 09 Justice Newnes determined that the hospital should not be obliged to make payment, until (unless) the appeal is decided against it (WA Country Health Service -v- Wright [2009] WASCA 177).  Despite the 'special circumstances' test being accepted by the hospital and Justice Newnes, he concluded that it should not be obliged to make payment, because if it did, there was some danger that it may not ultimately receive back such funds from Mr Wright or if it did, this may be over a period or involve inconvenience.

Interestingly, contrary to the submissions put before him, that recognised that if a discretion to grant a stay arose, this involved a question of the 'balance of convenience,' Justice Newnes described the test as tougher from Mr Wright's perspective.  He put it at one point as being whether not requiring payment would "impose unreasonable hardship" on the party who had won at trial (in this case, Billy) (see at [11])..

Ultimately Justice Newnes concluded (though there was no evidence before him to this effect) that there was likely to be a significant loss on a resale of the vehicle Billy intended to purchase and his modest financial circumstances were such that repayment of any balance would take a long time (see at [17]).  For this reason he refused to require the hospital to make payment of any monies at this time.

This is a very tough decision in my view.  In no way is the fact Billy is poor, a 'special circumstance.'  Many, many clients I have and do represent come from a poor socio-economic background.  That no obligation to pay arises in this case, suggests that nothing special is in fact required.  It seems, if Justice Newnes is right, that if a poorly off plaintiff succeeds at trial, a wealthy defendant (or its insurer) can avoid making any payment, if it appeals, until after such appeal is completed.  It can do this if it can show any chance that repayment of the money to be paid may be other than absolutely straightforward.

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