Mercy Health and Aged Care Central Queensland Ltd v Steele
[2009] QDC 268
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- Mercy Health and Aged Care Central Queensland Ltd v Steele[2009] QDC 268
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Mercy Health and Aged Care Central Queensland Ltd v Steele[2009] QDC 268
Mercy Health and Aged Care Central Queensland Ltd v Steele[2009] QDC 268
[2009] QDC 268
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 1573 of 2009
MERCY HEALTH AND AGED CARE CENTRAL QUEENSLAND LIMITED ACN 096 724 033 | Applicant |
and | |
OWEN BERNON STEELE | Respondent |
BRISBANE
DATE 03/07/2009
ORDER
CATCHWORDS: | Personal Injuries Proceedings Act 2002, s 9, s 9A, s 10, s 35 – Personal Injuries Proceedings Regulation 2002, s 3(3) – claimant ordered to provide an amended Part 1 Notice of Claim on application of respondent hospital, also a medical report – hospital required better information to determine whether it was a proper respondent – Notice of Claim made case of inadequate post-operative care by surgeon who was not a hospital employee but had the "privilege" of using its facilities – claimant was the surgeon's private patient – basis of claim against hospital appeared to be that it operated the premises – hospital should be informed whether any complaint was made about its own or its employee's performance and why it was considered responsible. |
HIS HONOUR: The originating application of the operator of the Mater Hospital in Bundaberg seeks the following orders under section 35 of the Personal Injuries Proceedings Act 2002 (PIPA):
- That, within 14 days of the date of the order, the respondent provide an amended Part 1 Notice of Claim pursuant to section 9 of the Personal Injuries Proceedings Act 2002, providing further and better answers to questions 14, 15 and 20 giving particulars of the allegations of negligence made against the applicant;
- That, within 14 days of the date of the order, the respondent comply with section 9A(9)(d) of the Personal Injuries Proceedings Act 2002 by serving with the amended Part 1 Notice of Claim a written report from a medical specialist competent to assess the medical incident stating that in the medical specialist's opinion:
- That there was a failure by the applicant's staff to meet an appropriate standard of care in providing medical services;
- The reasons justifying the opinion; and
- That as a result of the failure, the respondent suffered a personal injury.
- In the event that the respondent fails to comply with the orders in paragraphs 1 and 2 hereof the respondent's claim against the applicant in District Court claim number 2755 of 2008 be permanently stayed; and
- The respondent pay the applicant's costs of and incidental to the application.
That section 35 is available in such circumstances, as I'm reminded, has been accepted before. See Bretnall v. Cougar Air Pty Ltd [2008] QDC 22 at paragraph 13 and Klarich v. Tiger Moth Joy Rides Pty Ltd [2004] QDC 571.
The broad point made by the applicant is that it cannot, for lack of sufficient information, understand the case being made against it, in particular for purposes of deciding whether it is a proper respondent to Mr Steele's claim for the purposes of section 10 of the Personal Injuries Proceedings Act 2002 section 10.
Mr Steele suffered an adverse outcome from what he expected would be straightforward surgery to deal with a hernia. His bowel, as the evidence before the Court stands at the moment, was apparently nicked, perhaps three times, leaking with unpleasant and potentially extremely serious consequences. As it was Mr Steele had to be relocated to a hospital in Brisbane and was hospitalised for months and months.
It seems to me the real claim is not so much the cutting of the bowel but the way in which Mr Steele was managed after that. A Sydney medical practitioner, Dr Truscott, has provided a report of the kind referred to in section 9A(9)(d) of PIPA presenting his opinion regarding the failure in the management of Mr Steele in the applicant's hospital to appreciate the significance of the symptoms which had been noticed but were attributed to a benign cause.
The claim being one for medical negligence, Mr Steele came under the special obligation imposed by section 9A of PIPA which was carried out when his solicitors sent to the hospital a letter of 14th December 2006.
The Court is told that the applicant complied with the obligation upon it under subsection (8). It refused to accept the Form 1 Notice of Claim, under section 9 of PIPA, which was addressed to the surgeon who conducted the procedure, and who attended Mr Steele both before and following it in hospital. The hospital's point was that the notice was not addressed to it. By a handwritten addition, the hospital was added as a second respondent in the Notice of Claim, which was given to the hospital again. There were no other changes.
The broad stance taken by the hospital is that it bears no responsibility for the manner in which Dr DeLacey performed. It says it didn't employ the doctor, merely made available to him, among other practitioners, the privilege of his patients being admitted to the hospital and use of facilities such as the operating theatre and beds for post operative care.
Mr Steele is the plaintiff in a proceeding started pursuant to section 43 of the PIPA to provide protection against limitations problems, which has been stayed in the ordinary way to permit the PIPA pre-litigation procedures to be gone through. The Part 1 Notice of Claim, as originally completed, was appropriate to support a claim against Dr DeLacey. I am sympathetic to the hospital's complaint, that it needs better information as to whether or not it is a proper respondent for section 10 purposes. Its starting point is that it is not responsible for anything done by Dr DeLacey. It wishes to know whether there's any complaint about anything done or not done by any other persons, such as nursing staff who were its employees and for whose performance of their duties the hospital would be responsible.
The contention of Mr Steele is that the hospital is responsible for what Dr DeLacey might have done, even in respect of private patients, such as Mr Steele, on the basis of its providing the relevant premises where the doctor carried out his activities.
Reliance is placed by his counsel, Ms Willson, on Arai v. Sushi Train (Australia) Pty Ltd [2004] QDC 162, particularly at paragraph 10 where Judge Forde said as follows and I quote, "It is conceded by Mr Nam that the applicant was working for the first respondent at some stage as was the second respondent. The fact that the assault happened at work raises the possibility of the first respondent being liable for the wrongful act of its servant. Little more is needed to establish some potential liability. The question of fault is not determined on this application. Prima facie the claim is not futile. The argument that the first respondent is not a proper party is therefore rejected."
A distinction on the facts as they presently appear is that the hospital contends Dr DeLacey should be treated as not employed by it. No employment relationship is conceded. It may be accepted that technically that doesn't resolve the issue. However, the case is sufficiently different from Arai for me to be inclined to say that the hospital would be justified in saying it's not a proper respondent.
What it wants to know is whether the actions of any of its acknowledged staff or employees are relied on. That is something about which I'm inclined to think the plaintiff has been rather coy. If the situation is that no failure in performance by any other person than Dr DeLacey or perhaps the other practitioner whom he got to carry out the function of monitoring Mr Steele daily is concerned, then I think it's important that so much be stated.
I'm not impressed by Ms Willson's suggestion that matters of this kind should be looked into at a trial. If it is the case that only Dr DeLacey's actions need to be scrutinised, then taking a reasonably efficient approach would require that to be identified so that if need be a preliminary issue could be litigated (and perhaps still in pre-litigation proceedings, such as the present), as to whether the hospital was a proper respondent.
The decision of the Court of Appeal in Hare v. Mount Isa Mines Limited [2009] QCA 91 may be taken as establishing that responding to questions in the "Form 1" is not necessarily sufficient compliance with what the PIPA requires; see paragraphs 13 to 25. Section 9 of PIPA in subsection (2)(a) requires the notice to contain a statement of the information required under a regulation, which requires reference to section 3 of the Personal Injuries Proceedings Regulation 2002, in particular, paragraph (3). The pertinent subparagraph is (h), "the reasons the claimant attributes responsibility to the person or persons is, this being something which must be particularised: likewise in (b) which was particularly pertinent in Hare, "details of how the incident happened".
In the Form 1, in answer to question 13, Dr DeLacey is identified as the person "that caused the incident". Question 14 seeks to have detailed the reasons why the injured person believed that person caused the incident. There follows a brief description of what's said against Dr DeLacey.
There appears to me, however, nothing in that form which indicates why it is that the hospital might be responsible, although it's true that under General Details the hospital is identified as the place where the incident occurred. If it's said to be a case of vicarious liability I think the hospital is entitled to have a clear statement of that. Ms Willson is far from persuading me that as occupier or operator of the premises, the hospital is responsible for whatever a medical practitioner who is not an employee may do there. No doubt there are circumstances where liability could arise on that basis - if a known incompetent were allowed to practice surgery in the hospital, for example. Nothing like that is suggested here.
I also think, in the circumstances, the hospital is entitled to have a clear statement identifying any of its employees whose actions or omissions are said to give rise to some vicarious liability in the hospital or alternatively a clear statement that there is nothing in that category relied on.
The hospital complains about the lack of a medical report of the kind described in section 9A of PIPA in respect of the hospital's responsibility as to whether there was any "failure" by it as opposed to by Dr DeLacey who, it seems to me, may well come in a special category.
Dr Truscott's report, as I read it, is a medical practitioner's opinion identifying a breach of duty in a fellow medical practitioner. I detect no criticism in that of hospital staff responsible for the care from hour to hour of Mr Steele, whether in the form of inappropriate treatment or failure to notice or advise the doctor of adverse developments in the patient's condition. As part of the exercise we're currently engaged in, I think the hospital is entitled to expect a written report from a competent medical specialist indicating "failure" on its part.
The consequence is that, subject to further submissions that might be made, I think there ought to be orders in terms of the originating application that seeks costs. Subject to anything further Ms Willson might be able to say, I'm of the view that the correspondence between the parties indicates that the issue has been thoroughly ventilated between them, that it's a case in which the two sides have dug in their heels, so to speak, in which the applicant succeeds in the end. I don't think the situation is characterised by uncertainties that would make it appropriate to reserve costs until more is known.
I've observed during the hearing that the best way of proceeding may well be the preparation of a new Part 1 which is not addressed to Dr DeLacey at all. To the extent that it makes complaints about him. I think it ought to spell out the basis on which the hospital is said to be fixed with responsibility.
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HIS HONOUR: Order in terms of paragraphs 1 to 4 of the application and that costs be assessed.
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