Malcolm v Hertess[2010] QDC 372

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff’s application is for an extension of the period of limitation up to and including 11 March 2010, the date which she filed a claim for damages for personal injury. In that claim she says the injury was caused by the negligence and/or breach of contract of the defendant, a medical practitioner specialising in plastic surgery who performed the bilateral breast augmentation (‘the surgery’) at the Cairns Day Surgery.

2. [2]
   The plaintiff alleges that she was injured after undergoing that surgery on 14^th June 2000. As a consequence, she was therefore required under the Limitations of Actions Act 1974 s. 11 (‘the Act’) to have brought her action within 3 years, on or before the 14^th June 2003.

3. [3]
   Pursuant to s. 31(2) of that Act, the court may order the period of limitation for an action be extended if it appears to the court ‘that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation’. The section allows for an extension of the limitation period for one year only after the relevant date.

4. [4]
   It follows that the material fact of a decisive character relating to the plaintiff’s right of action to make her claim, needs to have come to her knowledge at some point between 11 March 2009 and 11 March 2010.

Was there a material fact of a decisive character? (s 30(1)(a) and (b))

5. [5]
   The ‘material fact of a decisive character’ relied on by the plaintiff is the obtaining of the expert opinion of Dr Marshall dated 27^th April 2010 suggesting that the advice and treatment provided by the defendant to the plaintiff was below that of the standard to be expected of a competent and skilled surgeon.

6. [6]
   Counsel for the plaintiff submits that it was at this point in time that ‘a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interests’ s. 30(1)(b). The steps taken by the plaintiff to obtain this evidence had been triggered following the discovery by the plaintiff on 1 April 2009 of certain information as a result of a Cairns newspaper article (Affidavit of Penelope Eden sworn 6^th August 2010 ex PAE 1) Upon reading that article, the plaintiff says she retained solicitors on or about 5^th May 2009. They made the necessary inquiries that led to the expert opinion in question being obtained. The plaintiff also relies on the fact that the opinion expressed by Dr Marshall was also a material fact not within her means of knowledge.

7. [7]
   The discovery of expert evidence to prove a case on liability has consistently been held to be a ‘material fact of a decisive character’, particularly in cases involving medical negligence, see Campbell & Anor v Bleakley [2007] QSC 351, Ervin v Brisbane North Regional Health Authority [1994] QCA 424 and Castlemaine Perkins v McPhee [1979] Qd R 469. The fact the plaintiff commenced her proceedings before obtaining Dr Marshall’s opinion is of no consequence to her right to bring this application: see Queensland v Stephenson (2006) 227 ALR 17 at para [30].

8. [8]
   By reason of her claim, the plaintiff identifies her injuries as:

• Folding implants;
• lumps, scarring; and
• uneven sized breasts.

9. [9]
   For the purpose of this application, the plaintiff gave evidence by affidavit affirmed 3^rd June 2004. She was required for cross examination.

10. [10]
    The plaintiff gave evidence that she had initially met with a nurse during 1999 at the defendant’s surgery who had explained the relevant surgical procedure to her. She received a small leaflet brochure (but not the one shown to her during cross examination) and remembered being referred to a website regarding post operative care. In her affidavit, the plaintiff says that she also met with the defendant at some point in early 2000 prior to that surgery being performed. She says however that on that occasion the defendant did not explain to her any of the increased risks or complications that may be associated with the insertion of bigger implants (see para 9 of the plaintiff’s affidavit). Indeed, according to the plaintiff, it had been the defendant who had encouraged her to choose bigger implants rather than selecting a smaller option. During cross examination, the plaintiff agreed that during that consultation with the defendant, she had told her about the need for antibiotics if required, anaesthetic and capsular contracture. She did not however accept that the defendant had also told her that the implants might rupture, that there can be ripples and wrinkles associated with an implant that may be visible in the breast following the procedure or that if she did in fact suffer capsular contracture that she would have to have the implant removed.

11. [11]
    The plaintiff did not consult the defendant again (or any other medical practitioner) again until around either August or September 2001 in respect of her breasts. She had initially saw her general practitioner at that time because she was concerned about her left breast implant feeling and looking different to the right one. Her doctor referred her back to the defendant for review. The plaintiff gave evidence under cross examination, that even though she had first noticed a loss of sensation ‘from the start’, a lump in her left breast since about 2001 and had also noticed that the implant felt as it had folded over onto itself, she admitted that she had not gone back to the defendant before that consultation because of the things that were happening in her life around that time. (That answer was given in response to the questions that were being directed to para 20 of her affidavit). She did recall the defendant telling her that she needed to make a bigger pocket to fit the implant in and that additional surgery would need to be undertaken for that purpose. That advice is confirmed in the medical notes available (Affidavit of Emmelene Gray sworn 13^th August 2010 ex EKG 1). The plaintiff says that she did not undertake that procedure at that time due to all the pain she had experienced during the initial surgery and was therefore reluctant to undergo any further surgery at that stage.

12. [12]
    On the 28^th September 2001, the plaintiff unfortunately lost her father in a freak accident. She says that as a result, she paid little attention to herself or her self image at that time. She said she chose not to worry about her implant. She also says that over the course of the next two years she grieved her father’s loss. However, on the 22^nd January 2002, the plaintiff did attend again upon the defendant for review of her breast implant difficulties. She was told by the defendant at that time that she could fix the problem for her but recommended to the plaintiff that she hold off on any surgery until after the birth as any contemplated pregnancy would alter her breast shape. The plaintiff followed that advice. That advice is confirmed in the medical notes (Affidavit of Emmeline Gray sworn 13^th August 2010 ex EKG 1).

13. [13]
    The plaintiff then gave birth to her third child on 19^th November 2003. She breast fed for the next 2 years. It was only in approximately late 2005, that the plaintiff says she turned her attention to herself, in particular as it related to the problems she had earlier noticed in respect of her breasts. She again attended upon the defendant on 8^th November 2005 for that purpose. She says that during the course of that consultation, the defendant told her that the problem could be fixed but that she would have to pay for that revision procedure herself. (The medical notes available do not reveal any consultation having taken place on that particular day). The plaintiff says that as a result of her discussion with the defendant on that day, she did not discuss the breast issue with the defendant again as she did not feel she was getting anywhere. The plaintiff also said under cross examination that she thought she shouldn’t have to pay for that procedure because she didn’t get what she had wanted in the first place. In particular, she said she hadn’t wanted ripples and bumps (T1-19). When asked if she thought it was the defendant’s fault, she replied ‘yes’.

14. [14]
    The plaintiff accepted under cross examination that she had however undertaken other procedures at the defendant’s premises which had included botox treatments and dermabrasion procedures during 2002 and a revision of an abdomen scar procedure in 2006. (The medical notes available confirm the various attendances at the surgery in this regard).

15. [15]
    At para 31 of her affidavit, the plaintiff says that it wasn’t until she had read the Cairns Post article that she even considered that her complications may well have been due to the negligence of the defendant. A subsequent ultrasound of her left breast after referral by her general practitioner in July 2009, revealed a fold in her implant.

‘Not within her means of knowledge’ (s. 30(1)(c))

16. [16]
    Section 30(1)(c) of the Act provides:

“a fact is not within the means of knowledge of a person at a particular time if, but only if—

1. (i)
   the person does not know the fact at that time; and

1. (ii)
   as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.”

17. [17]
    As observed by Keane JA (as he then was) in NF v State of Queensland [2005] QCA 110, s. 30(1)(c) is not concerned with what might be expected of a reasonable person, it is concerned with what might reasonably be expected of the plaintiff in this particular case.

18. [18]
    Prior to the 1^st April 2009, the plaintiff says that she did not know or even suspect that any of the conduct by the defendant was negligent. That evidence in my mind is confirmed as true by the fact that the plaintiff continued to return to the defendant’s surgery for other procedures during 2002 and early 2006 even though she had already spoken to the defendant about the problems she was experiencing with respect to her left breast in 2001. The plaintiff had also been referred back to the defendant by the general practitioner after the plaintiff had initially raised her concerns with her doctor in August or September 2001. The plaintiff therefore had no reason to believe at that point that the defendant well may have been negligent in light of that referral. The unexpected loss of her father around that time and the pain and suffering she described subsequent to the initial surgery having been performed also explains her reluctance to undertake any further revision surgery at that time.  Nor would have the plaintiff in my mind had cause to believe that the defendant may well have been negligent even after her second consultation with the defendant on 22^nd January 2002. The advice she received from the defendant on that occasion was that the plaintiff should delay having revision surgery until after any pregnancy contemplated. The subsequent birth of her 3^rd child in November 2003 and breastfeeding for the next couple of years adequately explains any delay in the plaintiff then only seeking further advice from the defendant in respect of her left breast in late 2005.

19. [19]
    The concessions by the plaintiff that she believed she should have gone back to the defendant much earlier than she did in late 2005 and the fact that she stated under cross examination she did not think she should have had to pay for any revision procedure, does not mean that the plaintiff knew or ought to known that the defendant may well have been negligent. Indeed, she confirmed in cross examination that the reasons she did not believe she should have to pay for the revision surgery was because she had not got what she had wanted in the first place (as she had been left with ripples and lumps) and as such, she felt that any revision costs ought to be the defendant’s responsibility. It does not automatically follow that the plaintiff knew or ought to have known or even suspected that the problems which she had been experiencing in that regard may well have been due to the negligence of the defendant.

20. [20]
    That conclusion is supported by the medical advice which she had received both initially from her own medical practitioner (by referral back to the defendant) and subsequently from the defendant herself during the consultations with the plaintiff already referred to. It was reasonable for her to accept those advices. They were not such as to cause the plaintiff to consider that she should investigate and initiate a claim for damages based on negligence. It was reasonable for her to follow for example the defendant’s advice to wait until after she had finished having her children before undertaking any revision surgery. I also do not consider that the plaintiff ought to have sought any other type of advice from medical practitioners in all the circumstances or that those circumstances would have justified her considering instituting proceedings against the defendant based on negligence.

21. [21]
    Accordingly, I find that the plaintiff had no need to make enquiries in that regard until after she had read the article in the Cairns Post newspaper. Upon doing so, she quickly sought legal assistance from her solicitors. It is trite to say that some time would have had to elapse between engaging her solicitors in May 2009 until the receipt of the expert opinion upon which the claim for damages would be based. It cannot be said that she acted other than reasonably in those circumstances particularly where she had already commenced her action prior to the report of Dr Marshall being received.

22. [22]
    Counsel for the defendant refers to the plaintiff’s prior contact with the legal system in 1991. That contact however does not in my mind automatically mean that the plaintiff knew or ought to have known that the problems she was experiencing with respect to her left breast during the relevant time may well have been as a result of the defendant’s negligence. The problem which she experienced in 1991 related to (botched) laser treatment to her facial area, an obvious part of her body as opposed to here where the problems she was experiencing related to her breasts which were not so obvious. This conclusion is confirmed in my mind by the referral of her own general practitioner in 2001, of the plaintiff back to the defendant notwithstanding that the plaintiff had complained to her doctor of the same difficulties with respect of her breast, the subject of her claim for damages.

23. [23]
    Counsel for the defendant also referred to the plaintiff having undertaken other cosmetic procedures at the defendant’s surgery during 2002. He submitted that if she was capable of doing that, then she was capable of taking steps to protect her legal interests in respect of this claim. That submission however overlooks the fact that the plaintiff only had her third child in November 2003 and thereafter breastfed for several years. In any event, as I have already indicated in these reasons, I do not consider that the plaintiff was required or had any cause to investigate a claim for negligence against the defendant until she read the article in the Cairns Post in 2009.

‘Is there evidence to establish a right of action apart from a defence founded on the expiration of a period of limitation?’

24. [24]
    I find that for the purpose of this application, the report of Dr Marshall on its’ face, if accepted, satisfies the requirements of s. 31(2)(b) of the Act in that there is sufficient evidence to establish the right of action.

Exercise of the discretion

25. [25]
    Having found that the requirements of s. 31(2)(a) and (b) are satisfied, there remains the exercise of the court’s discretion whether to grant the extension. Counsel for the defendant argues prejudice will be suffered if the plaintiff were granted an extension of time. Affidavits were filed in support for consideration on this issue. The primary submission made on behalf of the defendant is that because the defendant herself will have little recollection of the events in question without reference to the contemporaneous medical notes made, she will be unable to have a fair trial of the action.

26. [26]
    There are notes however available which have been disclosed notwithstanding that some of the medical records have been lost during the transition from one computer software to another during 2007 (affidavit of Emmeline Gray sworn 13^th August 2010 para 6 and Affidavit of Penelope Eden sworn 6^th August 2010 para 9). Counsel for the defendant submits that the loss of critical pre-operative notes in respect of the consultations in 1999 (with a nurse) and 2000 (with the defendant) respectively will result in the defendant not being able to fairly meet the plaintiff’s case. That submission however overlooks the fact that the defendant will in any event be able to give evidence of her usual practice at trial in respect of any pre-operative consultation she had with the plaintiff and the advices she gave. That evidence, presumably, will be consistent with the cross examination at hearing on this issue. (T1-13 to 15; see also affidavit of Emmelene Gray sworn 13^th August 2010 para 10). Counsel’s submission also overlooks the fact that the defendant herself will be able to give evidence as a qualified surgeon regarding the appropriateness or otherwise of the size of the prostheses that were actually implanted during the initial surgery.

27. [27]
    Most if not all of the relevant witnesses are available to be called in the trial. Inquiries by the defendant have only been conducted recently regarding the location of some of those witnesses. Some of those inquiries have proven to be fruitful for example to recent location of Ms Rogers and Ms Diversi who were nurses at the relevant time.

28. [28]
    While an extension of the limitation period might always be expected to cause some prejudice which is a factor that must necessarily be taken into account in the exercise of the discretion, I am not persuaded for the purpose of this application, that the defendant will be denied a fair trial of the action based on the points which the defendant has raised for my consideration: Brisbane South Regional Health v Taylor (1996) 186 CLR 541.

29. [29]
    In the circumstances, I will allow the application.

Orders

30. [30]
    I make the following orders:

1. The period of limitation for the plaintiff’s action for damages for personal injury be extended so that it expires on 11 March 2010.

2. Costs of and incidental to this application to be costs in the cause unless the parties have otherwise agreed.