O'Connor v Sunshine Coast Hospital and Health Service
[2022] QSC 233
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- Unreported Judgment
- O'Connor v Sunshine Coast Hospital and Health Service[2022] QSC 233
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O'Connor v Sunshine Coast Hospital and Health Service[2022] QSC 233
O'Connor v Sunshine Coast Hospital and Health Service[2022] QSC 233
SUPREME COURT OF QUEENSLAND
CITATION: | O'Connor v Sunshine Coast Hospital and Health Service [2022] QSC 233 |
PARTIES: | Leonard John O'Connor (plaintiff) v Sunshine Coast Hospital and Health Service (defendant) |
FILE NO/S: | BS 1432 of 2021 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 27 October 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers (reviewed on SRL list on 19 October 2022) |
JUDGE: | Freeburn J |
ORDERS: |
|
CATCHWORDS: | PRACTICE AND PROCEDURE – REQUEST FOR FURTHER AND BETTER PARTICULARS – where the plaintiff filed and served their claim – where the defendant filed and served their defence and notice of intention to defend – where the plaintiff made 38 requests for further and better particulars – whether the requests for further and better particulars were valid. Civil Liability Act 2003 (Qld), s 22 Uniform Civil Procedure Rules 1999 (Qld), r 166 |
SOLICITORS: | The plaintiff is self-represented L Lenkinski from Barry Nilsson for the defendant |
REASONS
- [1]In this proceeding, Mr O'Connor sues the Sunshine Coast Hospital and Health Service (SCHHS) for medical negligence. The claim arises from Mr O'Connor’s admission to and treatment at Caloundra Hospital on 26 October 2016, his transfer to Nambour Hospital on 27 October 2016, and surgery and post-surgical intensive care at Nambour Hospital until 3 November 2016. Both the Caloundra and Nambour Hospitals are administered by SCHHS.
- [2]At the outset of the proceeding Mr O'Connor was legally represented. He is now self-represented. This proceeding is now being managed on the Self-Represented Litigants list (SRL).
- [3]The proceeding is being defended, with both liability and quantum in issue.
- [4]On 14 September 2022, Mr O'Connor requested particulars of the defence. On 23 September 2022, Mr O'Connor made an application for particulars. On the return day for the application, 30 September 2022, Williams J ordered that the proceeding be transferred to the SRL.
- [5]At the first SRL review, I was informed that the application for particulars was to be heard in the Applications List on 24 October 2022. I proposed that, instead, I deal with the application for particulars ‘on the papers.’ Neither party objected to that course.
Request 1
- [6]Mr O'Connor’s first request, request 1, asks for particulars of paragraph 2(a) of the defence. However, that paragraph simply admits subparagraphs 2(a), (b), (c) and (d) of the statement of claim. In other words, the relevant paragraph of the defence merely contains admissions which means that Mr O'Connor does not need to prove or call evidence to prove paragraphs 2(a), (b), (c) and (d). There is no basis on which the court can or should order particulars of that admission.
Request 2
- [7]Paragraph 2(f) of the statement of claim alleges that SCHHS owed the plaintiff a duty of care:
- (a)to act with reasonable care and skill;
- (b)to provide proper and adequate emergency, medical, surgical, specialist and other management to the plaintiff; and
- (c)further or in the alternative, as implied by common law.
- (a)
- [8]The response of the defence is largely positive:
- (a)the defendant admits that at all material times it owned the plaintiff a duty of care;
- (b)the defendant says that the scope of the said duty was to take all reasonable steps to provide medical services, including treatment and advice, to the plaintiff of a standard widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice;
- (c)save as set forth in (b) hereof, the defendant denies the matters set forth therein and believes some to be untrue because they constitute an incorrect statement of principle.
- (a)
- [9]Mr O'Connor’s request is for particulars of those paragraphs. He requests the detail he had requested previously.
- [10]The defence, to a very significant extent, admits that it owed Mr O'Connor a duty of care. Indeed, for all practical purposes, SCHHS’s admission that it owed a duty of care to act with due care and skill is likely to be sufficient for Mr O'Connor’s purposes in the proceeding. It is difficult to see what more he needs.
- [11]Paragraph 2(c)(ii) of the defence (summarised in paragraph 8(b) above) seeks to incorporate into the defence the protections given by s 22 of the Civil Liability Act 2003 (Qld). However, that section merely provides that a professional (such as a surgeon) does not breach a duty of care if it is established that the professional acted in a way that was widely accepted as competent professional practice where that opinion is held by a significant number of respected peer practitioners in the field. However, there are limits (see s 22(2)).
- [12]It is probably a mistake for the defendants to seek to define the duty of care by reference to s 22(1) of the Civil Liability Act 2003 (Qld). That section merely specifies that a professional will not have breached his duty of care if he follows accepted peer professional opinion. The section addresses whether there has been a breach, not the content of the duty. However, for the following reasons it hardly matters.
- [13]Most cases of medical negligence are decided without any resort to s 22. Only in those cases where there is a difference of opinion as to reasonable professional practice will s 22 be of practical significance. Nothing in the pleadings of this case suggests that there is here a difference in opinion as to what constitutes competent professional practice. Of course, if such a divergence in professional opinion arises it can be expected that there will be expert medical reports which identify the competing opinions.
- [14]Paragraph 2(c)(iii) otherwise denies the duty. However, again, the admission in paragraph 2(c)(i) is significant. It is difficult to imagine that there is much left to deny.
Request 3
- [15]In this request, Mr O'Connor asks SCHHS to specify what respected, competent peer professionals expressed views on his treatment on 26 or 27 October 2016. That rather illustrates the problem created by SCHHS referring to peer professional opinion.
- [16]There seems to be no point ordering particulars unless SCHHS plead that their conduct is excused by the operation of s 22. In that event, SCHHS would need to be explicit as to the particular conduct said to be consistent with peer professional practice. However, as a matter of practicality, the ‘peer’ issue does not arise, and it may never arise unless the expert medical reports raise such an issue.
Request 4
- [17]This request asks questions about the duty of care, seemingly designed to elicit details of the times that medical advice was given. The allegation is admitted and so no particulars should be ordered. In any event, the questions are details which are a matter of evidence.
- [18]Incidentally, it is fundamental that only the material facts need to be stated in a pleading. The evidence by which the material facts are to be proved should not and need not be pleaded. Regrettably, the distinction may be a little elusive to non-lawyers.
Request 5
- [19]Request 5 asks for particulars of paragraph 2(d) of the defence. That paragraph of the defence denies that Mr O'Connor was a consumer under the Australian Consumer Law (ACL)[1] and denies that the services were provided in “trade or commerce”. SCHHS alleges Mr O'Connor was a public patient, there was no contractual relationship, and he was not a “consumer”. There is a factual dispute though because Mr O'Connor states that he was admitted as a private patient to both hospitals. He asks: ‘what contemporaneous records declare otherwise?’
- [20]This is not a proper request for particulars. The issue is joined in the sense the parties dispute each other’s contentions. Each party can adduce evidence to prove or disprove their allegations. It is not appropriate for Mr O'Connor to interrogate SCHHS about their evidence. Presumably the process of disclosure of documents will assist to resolve the private/public patient issue.
Request 6
- [21]Paragraph 3(d) of the statement of claim alleges that after being triaged, Mr O'Connor waited in the waiting room for at least one hour before being given any analgesia. The defence denies that allegation. The defence alleges that Mr O'Connor was moved to a consult room at about 21:59 for examination by the Principal House Officer. The defence admits that Mr O'Connor was not administered analgesics until 22:30 but says that was because it was unsafe to do so until he had been allocated a bed.
- [22]Mr O'Connor’s request for particulars asks 15 questions about what happened. They are requests for evidence rather than particulars. The purpose of pleadings and particulars is to identify for the parties and for the court the material facts. The evidence comes later.
Request 7
- [23]The defence, at paragraph 3(b)(ii)(B), alleges that no bed became available until shortly before 22:30. Mr O'Connor asks four questions about that allegation, namely: when staff were aware that no bed was available; why was no bed was available for a patient triaged one hour 10 minutes earlier; at what time did staff become aware of there being no beds; and whether nurse to patient ratio effected bed availability.
- [24]None of those questions are properly the subject of particulars. They may be the subject of evidence.
Request 8
- [25]The defence, at paragraph 3(b)(ii)(D), alleges that oral analgesics administered prior to Mr O'Connor being allocated a bed would not have had any beneficial effect on the pain being experienced by the plaintiff. Again, Mr O'Connor asks questions about that topic. They are not proper requests for particulars. They are matters of evidence.
Request 9
- [26]In paragraph 3(c)(i) the defendant admits that Mr O'Connor reported severe pain on his initial presentation at 21:30 and again when examined at 21:59. Mr O'Connor, impermissibly, asks questions about that.
Request 10
- [27]In paragraph 3(f) of the statement of claim, Mr O'Connor alleges that he reported to the hospital staff that he suspected he was suffering from internal bleeding. That allegation is denied by paragraph 3(d) of the defence. Pursuant to rule 166 of the Uniform Civil Procedure Rules 1999 (UCPR), SCHHS explains that denial by saying that the contemporaneous records do not contain any such notation.
- [28]Mr O'Connor’s request for particulars is in these terms:
“Specify and define the meaning of the notation; ‘presenting problem inner aspects’, reported by the plaintiff and documented within the Plaintiff’s CGH admission records (contemporaneous records).”
- [29]No doubt that means that Mr O'Connor disputes this aspect of the defence. He points to this particular notation. He will no doubt say in his evidence-in-chief that he told the Caloundra Hospital staff of his suspicion that he had internal bleeding. The SCHHS deny that – but it appears the basis for that denial is the absence of a note. Mr O'Connor disputes that and says that the notation he refers to records his suspicion as communicated to the hospital staff.
- [30]The point is that the task of the pleadings has been fulfilled. Each party understands the case they have to meet. Mr O'Connor’s request for particulars is a request for evidence or a framework for an argument at trial that SCHHS’s factual case should not be accepted. It is not a proper request.
- [31]In any event, the request is a request for details of an explanation under UCPR 166(4). That would not ordinarily be appropriate. On the one hand, where a party pleads an explanation for a denial, the plea of the explanation does not create an issue of fact for determination at the trial and, accordingly, a request for production of documents pleaded as part of such an explanation or a request for particulars of such an explanation would ordinarily be denied. On the other hand, a party may plead an explanation for dual purposes, namely:
- (a)so as to comply with the requirement for an explanation under UCPR 166(4);
- (b)but also to rely on what is pleaded in the explanation to advance a positive case and to comply with the obligation under UCPR 149(1)(c) to plead facts which, if not stated specifically, might take another party by surprise.
- (a)
- [32]If facts pleaded in an explanation relied on for those dual purposes, then it is perfectly legitimate for an opponent to subject them to ordinary interlocutory scrutiny, including by requests for production of documents pleaded and requests for further particulars.[2]
- [33]The request for particulars here falls into the former category rather than the latter. And, none of the requests discussed below involve ‘dual purpose’ explanations.
Request 11
- [34]Paragraph 3(e)(i) of SCHHS’s defence denies that Mr O'Connor’s pain was so severe he had to lie down. The explanation for that denial is that Mr O'Connor would not be permitted to lie on the floor of the Emergency Department waiting room, and the contemporaneous records do not record any such event.
- [35]That is, perhaps, a rather thin explanation for the denial, although much will depend on the evidence of the hospital witnesses. Nonetheless, it is an explanation. Mr O'Connor seeks to have SCHHS specify the location and position he was to occupy if no bed was available. It is not proper to ask for those details of the explanation.[3] In any event, these are matters for evidence at trial.
Request 12
- [36]Paragraph 3(e)(ii) of the defence pleads that Mr O'Connor was moved to a consult room at 21:59 at which time he was able to mobile independently. Mr O'Connor’s request for particulars about that asks SCHHS to specify how a patient in his condition could mobilise independently, and the distance between his position on the floor to the consult room, and how SCHHS was complying with its duty of care by not providing the use of a wheelchair.
- [37]Those are not proper requests for particulars. They are queries about the evidence.
Request 13
- [38]The request here is in these terms:
“…
13. In relation to Paragraph 3 g) iv) – ix)
- (i)As a result of directly observing the CT scan images at 23.07 resulting in a provisional diagnosis of pelvic haematome Specify how the prescribed analgesic mediation treatment; specifically from 23.07 26 October 2016 until general anaesthetic at 02.50 27 October was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice medically applicable and effective in treating the Plaintiff; although the plaintiff was still reporting and recorded severe pain, pain increasing continually and consistently and at 01.00 27 October
…”
- [39]That is plainly a request for evidence.
Request 14
- [40]This requests the reasons why the radiology report was prepared by an offsite radiologist, and “specifically in relation to CSCF funding level for CGH”. If it is relevant, this is a matter of evidence, not particulars.
Request 15
- [41]Paragraph 4 of the statement of claim pleads what happened on 27 October 2022, namely:
- (a)At 00:15 Mr O'Connor was given 10mg of Ketamine;
- (b)At 01:00 he was given 5mg of morphine;
- (c)A transfer to Nambour Hospital was arranged and, during the transfer he was given 20mg of Ketamine and 5mg of morphine;
- (d)At 01:48 he arrived at Nambour Hospital;
- (e)At 06:26 he underwent an emergency laparotomy to evacuate a large pelvic haematoma (the surgery).
- (a)
- [42]Subparagraphs (a) and (b) above are admitted by the defence. As to subparagraph (c), the defence says this:
“…Denies the allegations of fact contained in subparagraph (c) thereof and believes the said allegations to be untrue because as a result of directly observing the CT scan images as the scan was performed at 23:07, and in light of the Plaintiff’s elevated lactate levels, the Principal House Officer made a provisional diagnosis of pelvic haematoma and at approximately 23:30 on 26 October 2016 contacted the Nambour General Hospital to organise a surgical transfer by means of the Queensland Ambulance Service. …”
- [43]It can be seen there is a problem. Paragraph 4(c) of the statement of claim in fact makes three separate allegations, namely:
- (a)A transfer to Nambour Hospital was arranged;
- (b)During the transfer, Mr O'Connor was given 20mg of Ketamine; and
- (c)Also during that transfer, Mr O'Connor was given 5mg of morphine.
- (a)
- [44]The response in the defence is to deny those allegations. However, the explanation demonstrates that the defence is non-responsive. The explanation deals with completely different topics – the provisional diagnosis and when contact was made with the Nambour Hospital to arrange a transfer – rather than the transfer itself or the arrangement to transfer.
- [45]The SCHHS should have leave to replead paragraph 4(b) of the defence so that it is directly responsive to the three allegations made in paragraph 4(c) of the statement of claim.
- [46]Mr O'Connor has asked many questions about the provisional diagnosis – which comprises part of the explanation for the denial of paragraph 4(c). They may be relevant questions but, subject to the denial being properly responsive, these are not proper requests for particulars. They are matters of evidence. They are also requests for detail of an explanation.
Request 16
- [47]The same comments apply here. Mr O'Connor asks questions about the contact made with Nambour Hospital. It is doubtful that this is one of the real issues in the proceedings. The requests are matters of evidence rather than particulars.
Request 17
- [48]Paragraph 8 of the statement of claim contains the allegations of breach of duty:
“…The defendant breached the defendant’s tortious duty of care and/or the defendant’s statutory guarantee(s), in that the defendant:
- (a)Failed to act with due care and skill;
- (b)Failed to provide the plaintiff with timely pain relief during his presentation and treatment at Caloundra Hospital;
- (c)Allowed and/or caused the plaintiff to sit in the waiting room for prolonged period of time whilst in severe pain without any analgesia;
- (d)Allowed and/or permitted the plaintiff to lie on the floor in the waiting room in severe pain without providing any care or attention to the plaintiff and without any analgesia;
- (e)Failed to provide to the plaintiff with timely examination and treatment at the Emergency Department of Caloundra Hospital in the circumstances where the plaintiff was reporting severe pain;
- (f)Failed to provide the plaintiff with timely fluid resuscitation;
- (g)Failed to arrange for timely transfer of the plaintiff from Caloundra Hospital to Nambour Hospital in the circumstances where the plaintiff was reporting severe pain and the CT abdomen scan showed a large pelvic haematoma with active bleeding;
- (h)Delayed transporting the plaintiff to Nambour Hospital; and
- (i)Failed to provide competent, adequate and appropriate treatment, management and advice to the plaintiff. …”
- [49]Paragraph 8 of the defence denies the whole of paragraph 8 and provides a detailed explanation in subparagraphs (a) to (g). As to subparagraph (a), the defendant denies a statutory guarantee under the ACL – because Mr O'Connor was a public patient.
- [50]As explained, Mr O'Connor challenges that. His request for particulars states that he was admitted as a private patient to both Nambour and Caloundra Hospitals. He requires the SCHHS to “specify what contemporaneous records declare otherwise”. That is not a proper request. This is a matter for disclosure and evidence at trial.
Request 18
- [51]As to the explanation that Mr O'Connor was provided with “competent and timely assessment”, Mr O'Connor asks a number of questions about what was “timely”. They are requests for evidence or perhaps matters for evidence and submission at trial.
Request 19
- [52]As to the explanation that Mr O'Connor was provided with “substantial but appropriate analgesic support…within safe parameters”, Mr O'Connor requests particulars of the effect of the analgesic support and the changes to that support once the haematoma was detected. These are matters of evidence. They are also impermissible requests for particulars of an explanation.
Request 20
- [53]As to the explanation that Mr O'Connor’s condition was expeditiously and accurately diagnosed, Mr O'Connor asks a series of six questions – most of which are directed to requiring SCHHS to specify the times when a preliminary diagnosis and accurate diagnosis was made. These are matters of evidence.
Request 21
- [54]As to the explanation that a transfer to a suitable surgical facility was arranged in a timely fashion, Mr O'Connor asks a question that does not make sense [question 21(i)] and for details of the ambulance call, the priority code, the ambulance arrival times etc. Again, these are matters for evidence.
Request 22
- [55]As to the explanation that the hospitals provided appropriate and competent surgical care and treatment, Mr O'Connor asks a series of questions. Again, these are matters of evidence.
Request 23
- [56]The position is a little different with the explanation that, in all respects, the hospitals provided competent, skilled, and timely advice and medical treatment, having regard to the clinical circumstances and resources available to it. That explanation is a little vague. It is difficult to know what the defence means when it says that competent treatment was given having regard to the clinical circumstances and the available resources.
- [57]The expression “clinical circumstances” is particularly vague. It could mean, for example, that the treatment of Mr O'Connor was affected by staffing levels or by a lack of equipment or by something else. There is also a vagueness in the expression “resources available to it”.
- [58]One concern is that these vague expressions may be obscuring some further, unstated issue. At the least, the explanation under UCPR 166(4) should be clear. The SCHHS should amend its pleading to clarify that explanation.
- [59]However, Mr O'Connor’s questions about the advice given are matters of evidence.
Request 24
- [60]Paragraphs 9 and 10 of the Statement of Claim assert that Mr O'Connor, as a result of the breaches of duty, suffered psychiatric injury and personal injuries. Those allegations are denied. Again, the explanation for that denial is the subject of questions by Mr O'Connor.
- [61]In paragraph 9(d) of the defence, SCHHS says that Mr O'Connor did not suffer post-traumatic stress disorder and a major depressive disorder but suffered an aggravation of a pre-existing and long-standing generalised anxiety disorder. As to that, Mr O'Connor asks SCHHS to specify the psychiatric specialist who diagnosed him with generalised anxiety disorder, as well as the date and time of the diagnosis.
- [62]As explained, the border between particulars and evidence is not clear but the requested details are evidence. The issue of a pre-existing disorder has been raised. That disorder may or may not have existed prior to October 2016. It may or may not have been diagnosed. Those are all matters of evidence.
Request 25
- [63]In paragraph 11(b) of the defence, SCHHS again refers to Mr O'Connor’s (alleged) pre-existing generalised anxiety disorder. The particulars requested are the same. For the same reason, this is not a proper request for particulars.
Request 26
- [64]In paragraph 12(c), another explanation for a denial, the defence alleges that any psychiatric injury suffered by reason of the pelvic haematoma and its treatment caused an aggravation of a pre-existing generalised anxiety disorder attracting a Psychiatric Impairment Rating Scale (PIRS) of 6% only.
- [65]The same particulars are requested. It is a request for evidence.
Request 27
- [66]In paragraph 19(c)(i) of its Defence, SCHHS says that, as at the date of the surgery, Mr O'Connor’s business was not profitable, was causing him psychological stress and anxiety, and was unlikely to survive.
- [67]Mr O'Connor requires particulars of the psychiatric specialist who diagnosed stress and anxiety, the date and time of that diagnosis. He also asks that SCHHS define “not profitable” – given his business had a regular client basis and tenders totalling $7.4M at the time of the surgery.
- [68]That is a request for evidence, or submissions for the trial.
Requests 28, 29 and 30
- [69]These requests all ask for the identity of the psychiatrist who diagnosed generalised anxiety disorder and the date and time of that diagnosis. They are matters of evidence.
Request 31
- [70]This request falls into the same category. There is an additional request for SCHHS to specify why another psychiatrist has come to a different diagnosis. This is argument for trial.
- [71]Another request here is as follows:
“Specify why SCHHS, a health care service provider, continually and consistently denies the facts and truth of the matter, the facts and truth of the plaintiff’s mental health condition and cause of injury, further compounding the trauma of the plaintiff’s mental health condition.”
- [72]That is obviously not a proper request for particulars.
Request 32
- [73]Paragraph 24(a) of the defence pleads that Mr O'Connor is capable of returning to work as an electrician. Mr O'Connor requests the name of the psychiatric specialist who has provided a mental health clearance certificate. That is not a proper request for particulars. It is a request for evidence.
Requests 33 to 38
- [74]These are all requests for SCHHS to specify the psychiatric specialist who has diagnosed the particular psychiatric/psychological condition and the date and time of that diagnosis. They are matters of evidence.
Conclusion
- [75]It follows that the requests for particulars are refused. However, the defendant is granted leave to amend paragraphs 4(b) and 8(g) of the defence.