Elliott v Walker & Ors [2009] QDC 355

DISTRICT COURT OF QUEENSLAND CITATION: Elliott v Walker & others [2009] QDC 355 PARTIES: COLIN ANDREW ELLIOT (Applicant) v DON WALKER (First Respondent) and STATE OF QUEENSLAND (Second Respondent) and SCHERING-PLOUGH PTY LTD (Third Respondent) FILE NO/S: D 193 of 2009 DIVISION: District Court of Queensland, Maroochydore PROCEEDING: Civil Proceeding ORIGINATING COURT: District Court at Maroochydore DELIVERED ON: 30 November 2009 DELIVERED AT: District Court at Maroochydore HEARING DATE: 24 November 2009 JUDGE: J.M. Robertson DCJ ORDER: The application is dismissed with costs including reserved costs. CATCHWORDS: CONTRACTS TORTS AND PERSONAL INJURY LIMITATION OF ACTIONS – applicant wishes to continue claim against first and second respondents based on medical negligence – where applicant has obtained two specialist reports that do not comply with s 9A (9) (d) of the Personal Injuries Proceedings Act 2002 (Qld); whether discretion should be exercised in favour of applicant notwithstanding this non-compliance, where cause of action arises out of alleged breach of duty of care in applicant’s participation in a drug trial. Legislation: Personal Injuries Proceedings Act 2002 (Qld) Civil Liability Act 2003 (Qld) -- 1 of 9 -- 2 Cases Considered: Cousins v Mt Isa Mines Limited [2006] QCA 261 Hare v Mt Isa Mines Limited & Ors [2009] QCA 91 COUNSEL: Mr D. Crews for Applicant Mr D. Schneidewin for 1st and 2nd Respondents SOLICITORS: AB Law for Applicant Cooper Grace Ward for 1st and 2nd Respondents -- 2 of 9 -- 3 [1] The applicant Colin Andrew Elliott wishes to continue proceedings against Dr Don Walker and the Nambour Hospital (State of Queensland) for personal injuries consequent upon medical negligence. It is common ground between the parties that Mr Elliott’s Notice of Claim under the Personal Injuries Proceedings Act 2002 (“the PIPA”), is non-compliant. Mr Elliott now applies to this Court to authorise him to proceed further with the claim despite the non-compliance. His application is pursuant to s 18(1)(c)(ii) of the PIPA. [2] Mr Elliott entered a clinical trial of tailored therapy with Peg Interferon Alfa 2B and Ribavirin conducted by Dr Walker at the Nambour Hospital on 17 August 2006. Mr Elliott then suffered from Hepatitis C probably contracted in his youth as a result of intravenous drug use. [3] Mr Elliott first consulted Dr Walker who was a gastroenterologist and herpetologist on 10 August 2006 and entered the trial a week later. The trial was conducted by Dr Walker at the Nambour General Hospital where he was then head of the Hepatitis Clinic. The trial was sponsored by the Third Defendant, Schering-Plough Pty Ltd a drug company. The third defendant is not a party to this application. [4] At the time he entered the trial, Mr Elliott signed a document headed “Participant Information Statement and Consent Form”, an 11 page document which included a Section 6 Risks and Discomforts which included this paragraph: “Depression has been observed in up to ⅓ of the subjects treated with Peg interferon. Rare events such as suicidal behaviour including thoughts about committing suicide, suicide attempts and completed suicides have been reported in association with treat with Peg interferon. Additionally, aggressive behaviour and homicidal thoughts and actions have also rarely been seen. Relapse of drug or alcohol addiction may also occur. If you have ever been treated or are being treated currently for any psychiatric problems, you must notify your doctor immediately. You must notify your doctor if you have previously been addicted to drugs or alcohol. You may also like to discuss this risk with your friends or family as you may need their support during treatment”. [5] It appears to be common ground that Mr Elliott was given time to digest the consent form and also spoke to Dr Walker and his specialist nurse assistant about it and took home the consent form and signed it before he started in the trial. [6] The consent form provided that the trial was to be conducted in accordance with the Protocol which provided that a central laboratory would be used to perform and record all PCR Serology testing from patients. [7] The study was specifically for “Patients with Genotype 3 and High Viral Load”. It appears (on the so far uncontested evidence) that contrary to the Protocol the testing was done at a local laboratory which confirmed that Mr Elliott did have a “High Viral Load”, however as a result of blood screening results from the central lab on or about 4 February 2007, Mr Elliott was withdrawn from the trial as he was ineligible in that he did not have the required high viral load. -- 3 of 9 -- 4 [8] I am told that Dr Walker continued thereafter to treat Mr Elliott privately in accordance with appropriate Medicare protocols and that Mr Elliott is cured of Hepatitis C. The claim relates only to the period covered by Mr Elliott’s involvement in the clinical trial. [9] He wishes to make a claim for damages for personal injury against Dr Walker, the hospital and the drug company. He alleges that he has suffered an exacerbation of a prior mental or nervous shock injury as a result of the negligence and/or breach of contract by Dr Walker and the hospital. Particulars of the alleged negligence are set out in paragraph 14 of the draft Statement of Claim which is Annexure 8 to the affidavit of Mr Brugio (Mr Elliott’s solicitor) filed 6 August 2009: “i. Failing to use reasonable care in the circumstances. ii. Failing to monitor or properly monitor the clinical trial. iii. Failing to respond or appropriately respond to the plaintiff’s adverse psychological/psychiatric reaction to the clinical trial. iv. Failing to provide or arrange for the counselling and/or psychological and/or psychiatric treatment and/or intervention. v. Failing to ensure that the clinical trial which the plaintiff undertook was performed with all professional care, knowledge and diligence. vi. Failing to adequately warn the plaintiff of the consequences of undergoing the clinical trial in view of the plaintiff’s psychological/psychiatric pre-existing condition in particular. vii. Failing to adhere or adequately adhere to the protocol relating to the clinical trial. viii. In breach of the protocol, failing to utilise the central laboratory to perform and record all PCR Serology testing for the plaintiff, with the consequence that the testing was carried out by a local laboratory which used different units with the result that false readings were provided supporting that the criterion for the clinical trial was satisfied when it was not.” [10] The proceedings were commenced by leave of this Court granted by his Honour Judge Rafter SC on 31 July 2009 despite Mr Elliott’s non-compliance with Chapter 2, Part 1 of the PIPA. Paragraphs 2 and 3 of his Honour’s orders are in these terms: “2. The proceedings started pursuant to Order 1 herein are stayed pending compliance by the parties with Chapter 2, Part 1 of the Act. 3. That the applicant’s proceedings commenced against the first and second respondents pursuant to paragraph 1 of these orders be struck out at the expiration of four months from the date of these orders, unless by that date: a. the applicant delivers to the first and second respondents a Notice of Claim that complies -- 4 of 9 -- 5 with section 9 A of the Personal Injuries Proceedings Act 2002; or b. the court otherwise declares that any non compliance in regard to the Notice of Claim (referred to in paragraph 3(a) of these orders) is remedied, or otherwise authorises the applicant to proceed with his claim pursuant to section 18 of the Personal Injuries Proceeding Act 2002”. [11] Mr Elliott’s application before me is pursuant to 3(b) of that order. He concedes that he has been unable to comply with s 9A (9)(d) of the PIPA and seeks the court’s authority to proceed further with a claim despite non-compliance. [12] The respondent’s position is that in light of the failure of Mr Elliott to obtain a specialist’s report compliant with s 9A (9)(d); the continuation of the claim is futile and this is a case in which the court should not exercise its discretion in favour of Mr Elliott. [13] The particulars of negligence also include an allegation of failure to warn which is subject to s 9A (10) of the PIPA. Discussion [14] Section 9A (1) and (9)(d) are in these terms: “Particular provision for notice of the claim procedure for medical negligence cases (1) This section applies to a claim based on a medical incident happening on or after the commencement of this section that is alleged to have given rise to personal injury. … (9) … (d) Must, as part of giving a complying Part 1 Notice of Claim, give a written report from a medical specialist, competent to assess the medical incident alleged to have given rise to the personal injury, stating, in the medical specialist’s opinion – (i) that there was a failure to meet an appropriate standard of care in providing medical services; and (ii) the reasons justifying the opinion; and -- 5 of 9 -- 6 (iii) that as a result of the failure, the claimant suffered personal injury; …” [15] To say that Mr Elliott has had difficulty in obtaining such a report is an understatement. His solicitors initially obtained a report from Associate Professor Martin Weltman, a Sydney Consultant Physician and Gastroenterologist and Herpetologist dated 14 April 2008. His report is Annexure H to Mr Brugio’s affidavit filed 21 July 2009. Associate Profession Weltman opined that there had been no failure to meet the appropriate standard of care by either Dr Walker or the Nambour Hospital. He was asked directly in a letter of appointment from Mr Brugio dated 2 April 2008 to comment on whether or not the hospital and/or Dr Walker had departed significantly from “the agreed protocol”, to which he replied in the negative. He was not apparently supplied with the protocol and was not aware of the “central laboratory” requirement. [16] His report, if accepted, would completely undermine Mr Elliott’s prospects of success. [17] Mr Elliot has been assessed by clinical psychiatrist Dr Quentin Mungomery whose evidence, if accepted, would establish a causal link between Mr Elliott’s participation in the clinical trial and the “exacerbation of his pre-existing Dsythymic Disorder and development of a Major Depressive Disorder”. He of course does not purport to comment on any alleged failure to meet the appropriate standard of care in the involvement of Mr Elliott by Dr Walker and the hospital in the clinical trial. [18] Since Judge Rafter’s order, Mr Elliott has obtained a report from Dr N A Talley, a consultant gastroenterologist and herpetologist in Sydney who notes that Dr Weltman trained under him as a gastroenterologist and as his registrar. He had a copy of the protocol which had been provided by then by the third defendant’s insurer. He also had copies of the reports from Dr Weltman and Dr Mungomery. [19] It is conceded on behalf of Mr Elliott that Dr Talley’s report does not satisfy the requirements of s 9A (9)(d), but nonetheless he asks the court to allow him to continue with the claim. [20] Despite having a copy of the protocol which he had read, Dr Talley came to essentially the same conclusions as Dr Weltman although he declined to comment in relation to the hospital as “it (was) not clear (if) Mr Elliott was treated by the hospital once he was withdrawn from the trial”. He may not have understood that the claim relates only to the time in which Mr Elliott was in the trial. He states clearly that in his opinion Dr Walker did not significantly deviate from the protocol, and that there had been no failure to meet the appropriate standard of care in providing medical services on the part of Dr Walker. [21] As to the failure to warn allegation, Dr Talley refers to the clear warning in the consent form. Insofar as Mr Elliott’s case is based on a failure to warn that psychiatric symptoms could continue after the trial had finished, Dr Talley observes (at page 7 to 8 of his report): -- 6 of 9 -- 7 “I did a careful Medline search and found no evidence of long term psychiatric damage from Interferon. I also include a copy of a review of complications of Hepatitis C treatment from the program named ‘Up-to-date”, which keeps subscribers abreast of all the recent articles on the subject and there has not been a clinical trial that tried to assess the prognosis of patients who suffered a major psychiatric complication during treatment. Therefore it is impossible to say whether there is a risk of permanent psychiatric deterioration after treating Hepatitis C. The general impressions of gastroenterologists, including myself, is that generally, whilst major depressive episodes including suicide and also manic episodes when the depression is being treated, are relatively common in patients treated with Peg interferon; after treatment has been terminated their mental state usually improves. This in fact has happened in the case of Mr Elliott, but whether any permanent deterioration can also occur is at this stage not known, because no clinical trial has been performed which looked at this problem. It is not reasonable to expect Dr Walker to have warned Mr Elliott of long term psychiatric problems in the absence of evidence that it occurs frequently or even occasionally”. [22] Mr Elliott in his affidavit says he told Dr Walker (I infer prior to signing the consent) that his brother had committed suicide and that he (Mr Elliott) “was of a depressive nature”. According to Dr Weltman, Mr Elliott told him that he “did indicate to Dr Walker that there was depression in the family and that a brother had committed suicide”. [23] Mr Elliott swears in his affidavit filed 21 July 2009: “If I had known or had been warned that my depression could significantly worsen, I would not have proceeded with the clinical trial”. [24] In a later statutory declaration sworn on 5 October 2009 (Annexure D to Mr Brugio’s affidavit filed 12 November 2009”, Mr Elliott swears at paragraphs 4 and 5: “4. Had I been assessed by a psychiatrist before commencing the clinical trial and had the psychiatrist’s opinion been, on balance, not to undergo the trial because of the risks involved from a psychological/psychiatric viewpoint, I would have probably still gone ahead with the treatment. However in this particular situation, I would have requested and/or expected the psychiatrist to take care during the clinical trial of my psychological/psychiatric condition by providing me with suitable monitoring, counselling, appropriate referral-s and/or medication as required including anti psychotic medication. -- 7 of 9 -- 8 5. Needless to say, however, if the psychiatrist’s opinion had clearly been for me not to undergo the clinical trial, then I believe that I would not have proceeded with the trial”. As Mr Schneidewin notes in his written submission, s 11(3)(b) of the Civil Liability Act 2003 will work against Mr Elliot in relation to these apparently conflicting assertions. [25] It is clear that the court’s discretion pursuant to s 18(1)(c)(ii) of the PIPA should be exercised with the purposes of the Act set out in s 4 in mind: Cousins v Mt Isa Mines Limited [2006] QCA 261. However the same general principles apply to the exercise of the discretion which is to be exercised in the light of the particular facts and circumstances of the case being considered. Clearly the fact that a refusal to grant the application will deny Mr Elliott the opportunity to litigate his claim is a factor to be taken into account. In Hare v Mt Isa Mines Limited & Ors [2009] QCA 91, Holmes JA (with whom Fraser JA and Douglas J agreed) allowed an appeal against an order declaring a Notice of Claim compliant, essentially on the basis that the claimant was not able to provide details of how the alleged incident happened as required by the regulations to the PIPA, in the sense that the claimant was unable to give particulars as to how the incident happened (ie precisely how the claimant came to absorb certain chemicals she was exposed to) and the reasons for attributing responsibility to the respondent. In that regard Holmes JA observed: “… the articulation of those details is important in order to enable the notice’s recipient to consider whether it is a proper respondent to the claim, and whether it ought to add another person as contributor; to meet its obligations to attempt to resolve the claim under s 20; and to provide documents and information under s 27. It also has a bearing on the preparation for the compulsory conference, its conduct, and the exchange of mandatory final offers if the claim is not settled …”. Neither Cousins nor Hare were personal injury claims based on allegations of medical negligence. Mr Schneidewin submits that s 9A of the PIPA and in particular (9)(b) must be read as requiring at least the plaintiff to establish by the provision of such a written report a prima facie case of a failure to meet an appropriate standard of care. Mr Crews on behalf of Mr Elliott submits that all his client has to demonstrate at this stage is that his prospects of success were more than “negligible”. This is a reference to some comments made by McMurdo P in her Honour’s judgment in Cousins in which she agreed with the primary reasons of Jones J. At [7] her Honour said: “A judge would be unlikely to grant an application where the claimant’s prospects of success in the claim were negligible so that the granting of the application would ultimately be fruitless, causing nothing but unnecessary expense to the parties. It will, however, be an unusual case where that issue could be clearly determined against the claimant at such an early stage.” [26] Mr Schneidewin, on the other hand, submitted that the claimant must, at this stage be able to establish at least a prima facie case of negligence by provision of a specialists report of the kind contemplated by s 9A (9)(d). He submits that this is consistent with the purpose of s 9A (9)(d) in cases involving allegations of medical -- 8 of 9 -- 9 negligence. He submits that without such a report, his clients would be faced with the same difficulties enumerated by Holmes JA in Hare. [27] Mr Crews acknowledged the difficulty his client faced but submitted nevertheless the claim should proceed. He submitted that it is for the Court to decide issues such as breach of duty, not doctors. That is so, but a Court can only act on evidence. It would be very difficult to contemplate how his client could succeed in his claim without expert evidence. [28] I am satisfied that this is one of those unusual cases in which it can be said that without expert evidence to support the particulars of negligence pleaded there is very little prospect of the plaintiff succeeding. More importantly, the two respondents would be placed in a position of having to respond to allegations of professional negligence in the absence of any expert evidence in support. In my opinion that will involve significant prejudice to them. [29] Mr Elliot does not say that he will try to obtain another report. Given the (2) reports before the Court that is probably justified. [30] In my opinion this is not a case in which the court could act without evidence from an expert herpetologist that there was a failure to meet an appropriate standard of care in providing medical services and that as a result of the failure the claimant suffered personal injury and providing reasons justifying that opinion. [31] For those reasons the application is dismissed with costs including reserved costs. -- 9 of 9 --