Bartlett v Merry & Anor [1992] QSC 289

c ' TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold · without the written authority of the Director, State Reportin~ Bureau.) SUPREME COURT OF QUEENSLAND · CIVIL JURISDICTION DEMACK J No 26 of 1992 DEBORAH JANE BARTLETT and GLEN MERRY r- .......... -"-"''- . . -- ., . ._. ·---- REVI~r..:r} er-·~,-.-. •c-.-. ' '-''-=L.. .,,V,-'!t..::. .. , iv0UED Court Reporting Bureau Date I] / 8' 1 (/:)_ -------...a Plaintiff First Defendant ( and .( :~ ,.··, · BRISBANE NORTH R,;EGION HEALTH AUTHORITY .\. : ~·: ·, ROCKHAMPTON ... DATE 11/08/92 JUDGMENT t Second Defendant 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 8 -- 1. \ 1 ' y ·.' 10 . 20. 30 40 11 0 8 9 2 .( Dema:C: k J) HIS HONOUR: In this matter I have reduced my reasons to . ·v;.rritin9,··which I now publish. The application is dismissed .. ·. · ........ . with costs. .. , .. ~·.· . . ... HIS HONOUR: In this application I delivered my reasons for judgment earlier today and foreshadowed that I would make an order for costs. The applicant's solicitors submitted that no order should be made.because the applicant is on an invalid pension and has no capacity to meet an order for costs. The crown solicitor who acts for the defendants has, however, ~6~ght art order for costs. There is no reasonable basis for denying that order and it certainly indicates that the Crown places great reliance upon such resources as the Golden Casket and other. sources of windfalls that litigants are supposed to arm themselves with so that they may pay costs sought by defendants, so the order is application dismissed with costs. ~· ··' . ·. .. . :. :·.:. ~: . . . ..... ~. ,,_·_:_ ., .• 4:. ·::: ····-···. Govt. Printer, Old. 2 JUDGMENT 10 20 () () 30 ()40 () 50 60 -- 2 of 8 -- ( \, ( \ IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY BETWEEN: DEBORAH JANE BARTLETT AND: GLEN MERRY No. 26 of 1992. Plaintiff First Defendant BRISBANE NORTH REGIONAL HEALTH AUTHORITY Second Defendant JUDGMENT - DEMACK J. DELIVERED the 11th day of August 1992. CATCHWORDS: Limitation of Actions - Extention of Period - Personal Injuries Left Hemiplegia following Ventriculo Periton.eal Shunt Surgery - Whether Surgical Complication within Applicant's Means of Knowledge at Relevant Date Whether Evidence Establishes a Right of Action - Application Dismissed. Limitation of Actions Act 1974 ss 30, 31. COUNSEL: Mr R. STENSON Mr D. COOPER SOLICITORS: BARRY BEAVERSON & STENSON CROWN SOLICITOR HEARING DATES: 21st July, 1992. for Applicant/ Plaintiff for Respondent/ Defendants for Applicant/ Plaintiff for Res};X)Ildent/ Defendants -- 3 of 8 -- (- (' \ ( \, IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY No. 26 of 1992 BETWEEN: AND: Deborah Jane BARTLETT Plaintiff Glen MERRY First Defendant Brisbane North Regional Health Authority Second Defendant JUDGMENT - DEMACK J DELIVERED the 11th day of August 1992. This· action was commenced by a writ issued on 27 March 1992. The Plaintiff was born on 12 October 1965. Late in 1973 she complained was referred to October 1974. of blurred the First She was vision and headaches. Her mother Defendant who saw the Plaintiff in admitted to the Royal Children's Hospital about 17 on or October 1974, and following an angiogram, Dr Merry advised the Plaintiff's mother that she was suffering from hydrocephalus which could be relieved by insertion of a ventriculo-peritoneal shunt. The operation was performed on or about 17 October 1974. After the operation Miss Bartlett suffered left hemiplegia. She needed further operations and has become disabled to a degree since 1974. In 1991, for the first time, it was suggested to her that her condition may have been caused by negligence. She consulted a solicitor who made inquiries of the Second Defendant, which has limited records of the procedures undertaken in 1974. Miss Bartlett has consulted Dr Leigh Atkinson, and the opinion expressed in his report of 23 March 1992 sets out the extent of the material available to the Plaintiff and to the Court. -- 4 of 8 -- ( \ 2 I have had access to the following reports:- * Royal Brisbane Hospital - 8.7.91 -Dr. Ian Wilkey; * Ms. Fiona Weir, Medical Record Administrator 9.12.91; * A photostat copy of the medical records at the Royal Chidren' s Hospital commencing with an admission on the 30th December, 1978 and also noting outpatient attendances commencing in August, 1975. I have not seen any records of the operations carried out in 1974 and 1975 and I have not seen any medical notes for her care during this time. I understand that Miss Deborah Bartlett is pursuing a medical legal action against the Royal Children' s Hospital and Dr. Glen Merry regarding her management and her outcome. 1. It appears that Miss Deborah Bartlett had hydrocephalus causing her admission to the Royal Children's Hospital in October, 1974. From the history that I have it appears that her symptoms had probably been gradually building up over two years resulting in her presentation to Dr. Hugh Fraser with papilloedema and raised intracranial pressure. Her life would have been at risk because of these developments. 2. I am not aware of the exact diagnosis regarding this young woman when she was admitted initially to the Royal Children's Hospital. I presume the diagnosis was hydrocephalus. She had a right ventriculo- peritoneal shunt as treatment for this hydrocephalus. I understand that her post-operativecourse over the next seven months was complicated by the development of chronic subdural haematomas over the surface of the brain on the right side on threeoccasions. I understand that she required surgical evacuation of these mass lesions on three occasions. She also required at least three operations from the history that I have received to correct the ventriculo-peritoneal shunt system which had apparently become obstructed. 3. As a result of difficulties with the ventriculo- peritoneal shunt and as a result of complications with this surgical procedure she developed a left hemiplegia and speech difficulties. There was a prolonged period of a depressed conscious level. 4. I note that on account of these complications she required intensive nursing management, physiothery, occupational therapy and speech therapy. She also had very regular follow-up by numerous specialistswithin the Royal Children's Hospital. I gained theimpression from the written hospital notes that her atypical course caused concern that there was otherpathology complicating her progress.5. During her subsequent follow-up, C. T. scans of the brain were carried out which showed enlarged ventricles, gliosis within the right parietal region of the brain and a porencephalic cyst in the right -- 5 of 8 -- ( / \ 3 parietal region. An electroencephalogram ( 6. 1 0. 78)was reported to to show prominent right posterior slow wave disturbances which become paroxysmal at times. 7. I consider that Miss Deborah Bartlett's neurological and musculo-skeletal condition is stable. However, she remains at risk from a further shunt obstruction and the associated complications associated with shunt obstruction and the revision of ventriculo- peritoneal shunts. , 8. I consider that she is an independent invalid. She is living in a de facto relationship. She has two children, aged 4 and 6. She continues on an Invalid Pension. She is able to cope with her domestic activities and her marital life and she drive a motor vehicle. 9. I consider that, as a result of the hydrocephalus and as a result of the associated surgical complications, she has personality chanqes which have interfered with her educational potential and with her subsequent domestic life and her employment. She appears to have an intellectuallevel and I.Q. between 75 and 90. 1 0. Again, as a result of the hydrocephalus and the surgical complications she has a spastic left hemiparesis which complicates her daily life and together with her personality changes have resulted in her being placed on an Invalid Pension.11. She also has a left optic atrophy with reduced visual acuity in her left eye. This is a complication of the hydrocephalus and the course of the optic atrophy may have been aggravated by episodes of intermittent acute raised intracranial pressure. 12. On account of the organic brain damage and, in particular, the gliosis and porencephalic deformity in the right parietal region she has abnormal findings on the electroencephalogram but there has not been a history of epilepsy. She remains at some risk from epilepsy in the future in the order of 5%. 13. In the absence of the complete information about this woman's diagnosis and surgical course in 1974 and 1975 I would make the presumption that she was admitted to hospital with hydrocephalus of at least two years' standing. The cause of this hydrocephalus seems undetermined. 14. Her post-operative recovery following the ventriculo-peritoneal shunts aooears to have been complicated by either a right parietal intracerebral (haematoma) during the introduction of the plastictube or else, or in addition, she developed an acute or chronic subdural haematoma over the convexity of the brain in the right intracranial parietal area causing a hemiplegia. It is my understanding that on three occasions thissubdural collection of blood developed requiring surgical -- 6 of 8 -- ( ( ) 4 intervention and relief. Without these procedures her life would have been at risk. In absence of available hospital notes I am unable to give an opinion on whether surgical intervention forthese complications was carried out at an appropriate time. I do believe that the hydrocephalus has been adequately controlled and the chronic subdural haematomas have been removed. In my opinion there are two possible explanations for the left hemiplegia:1. The development of an intracerebral haematoma along the track of the ventricular catheter at the time of insertion or during the early convalescence; or 2. The development of acute or chronic subdural haemorrhages between the oia and the dura as a result of the drainage of the hydrocephalus leaving a potential space over the surface of the brain into which haemorrhage has developed. Both these conditions are well established and well recognised complications of ventriculo-peritoneal shunt surgery. (I have added the underlining and the word [haematoma] to paragraph 14). Mrs Bartlett says in her affidavit:- 14. I was stunned, however, by the second last paragraph in which he said "both these conditions are well established and well recognised complications of ventriculo-peritoneal shunt surgery". 15. Neither Dr Merry nor any other person at any time before the operation ever advised me that this was thecase and I am certain that if I had been advised of that, that I would have sought a second opinion before consenting to Deborah having the operation performed. Dr Merry implied to me that it was a routine operation. I do not know whether it was imperative that the operation be performed at the time that it was . I accepted Dr Merry's judgment and advice and I again reiterate that at no time either before or afterwards did he advise me of the fact that the paralysis condition caused to Deborahwas a well established and well recognised complication of the operation. The provisions of ss. 30 and 31 of the Limitation of Actions Act are often enough considered and do not need to be set out. Here the material fact is "the fact of the occurrence of negligence". Assuming that Dr Atkinson's report demonstrates the existence of that fact, was that fact ascertainable by Miss Bartlett during the years from 12 October 1983 to 12 October 1985 if she had sought competent -- 7 of 8 -- \. ( (' 5 medical advice? The "fact" which Dr Atkinson's report raises is, of course, a matter of medical knowledge. The circumstances which gave rise to the disclosure of that medical knowledge were all part of the knowledge both Mrs and Miss Bartlett had had since 1974, namely, that following upon the treatment of hydrocephalus Miss Bartlett developed left hemiplegia. In this application Miss Bartlett must show that the fact that the left hemiplegia was caused by one of two well established complications which are associated with the treatment of hydrocephalus by ventriculo peritoneal shunt surgery was not within her means of knowledge until after 27 March 1991. Bearing in mind the obligation cast upon her by s.30(b) and (c) to seek appropriate advice I do not think she has done so. The question asked in the previous paragraph must be answered in the affirmative. In any case, I am by no means convinced that Dr. Atkinson' s report establishes a right of action. The mere fact that complications occur does not prove negligence. To prove negligence there must be a departure from the standards of the ordinary skilled practitioner. Here the patient's life was at risk and treatment, which carried with it a well- established risk of complications, was undertaken. The fact that a consequence of such complications occurred does not, in itself, demonstrate that there has been a departure from the standards of the ordinary skilled practitioner. The application is dismissed with costs. -- 8 of 8 --