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12 year long stop limitation period tested

Limitation periods in the medical negligence arena were a feature of the recently decided Supreme Court decision of his Honour Walton J in Lewicki v Hunter New England Local Health District [2020] NSWSC 1037 .  This matter gives important guidance in relation to limitation issues where a claim was made outside the 12 year long stop period.

Facts

The plaintiff was diagnosed with testicular cancer in 2003 and a lymph node biopsy confirmed the cancer was metastatic.  The plaintiff underwent a left orchidectomy and chemotherapy.

The plaintiff underwent investigations which identified two large lymph nodes on his inferior vena cava (IVC) which had not reduced in size despite the chemotherapy.  CT imaging had demonstrated the persistence of significant para-aortic adenopathy and the plaintiff was referred to Dr Grant.

Dr Grant recommended the surgical removal of the two lymph nodes near the IVC.  The plaintiff underwent that procedure at the John Hunter Hospital under the care of Dr Grant on 16 January 2004.  During the surgery, the plaintiff’s IVC was perforated and repaired by ‘oversewing’.  The inferior pole of the renal artery was torn, this was also repaired by ‘oversewing’.

Post operatively the plaintiff was informed by either the medical staff of the hospital or Dr Grant that he had bilateral deep vein thrombosis which was the likely cause of his post-operative oedema and other symptoms.

The plaintiff underwent multiple procedures to repair the abdominal wounds, he developed abdominal wound dehiscence which required home treatment from the community nurse.

In October 2004 and March 2005, the plaintiff underwent laparoscopic surgery to close the abdominal wounds with incisional mesh hernioplasty procedures, which both ultimately failed.

In between March 2005 to February 2009 the plaintiff attended Gosford hospital for outpatient treatment of his incisional hernias and ongoing lymphoedema.

On 14 April 2009 the plaintiff attended Gosford hospital suffering from a bowel obstruction which was secondary to a strangulated hernia.

In 2014 the plaintiff developed further open wounds in his abdomen, the cause of which was unknown.

In May 2015. The plaintiff experienced a strangulated hernia and underwent a small bowel re-section and repair of the hernia.  He underwent further surgery in June 2015 which involved a repair of his ventral hernia and in late June 2015 he underwent further surgery which involved a laparotomy, division of additions and a small bowel resection. He then developed sepsis and was ultimately discharged on 6 July 2015.

In September 2015, the plaintiff developed a fever, was found to have an abdominal wall abscess which was debrided on 11 September 2015.  He was admitted to hospital with a further infection in October 2015.

The plaintiff first sought legal advice in late 2014.  The plaintiff signed the solicitors’ costs agreement and authorities to access his medical records in May 2015 and his medical records were requested.  The records were ultimately provided after some delay.

In December 2016, the solicitors had a teleconference with a vascular surgeon, Dr Niesche.  Dr Niesche advised that he needed further clinical records from the John Hunter hospital, these were sent to him in February 2017.  Dr Niesche did not address the issue of the breach of the duty of care. However, he linked the plaintiff’s subsequent injuries and disabilities with his surgery and post-operative care that had occurred in 2004.

In July 2017 the plaintiff attended a conference with his solicitors where he was advised about the progress of his matter and the limitation issue.

The solicitors attempted to obtain further clinical records but encountered some difficulties because some of the records had been destroyed and others were delayed.

In October 2017, the solicitor sought an opinion from Professor David Morris, general surgeon.  Professor Morris opined:

  • It was unfortunate that benign lymph nodes were removed.
  • Dr Grant should have sought the opinion of a vascular surgeon following the perforation if the repair of the vena cava was complex. The repair could have led to narrowing of the vena cava which would have caused the abdominal swelling, increased the risk of dehiscence which would have caused the leg swelling and the chronic venous insufficiency.
  • If the stenosis had been created during the surgery, the involvement of the vascular surgeon would have been mandatory.
  • The post- operative care was inappropriate. Post-operative anti-coagulation was required together with close ultrasound monitoring of the femoral veins.
  • The DVT should have been detected sooner and had it been detected sooner the inferior vena cava could have been reconstructed and the clot could have been removed from the leg.
  • The repair of the IVC lead to its narrowing and the development of the caval thrombosis. This caused the abdominal swelling and the wound dehiscence and the peripheral oedema.

Legal Professional Privilege

There were some arguments over whether the contents of a file note of the solicitor’s teleconference with Dr Niesche was subject to legal professional privilege as the conversation had been referred to in the solicitor’s affidavit.  The Court ordered that the file note should be produced as there had been a partial waiver of privilege.

Twelve Year Long Stop

The rule is contained in s50C (1) (b) Limitation Act 1969 (NSW) and states that an action for personal injury cannot be brought more than 12 years after the date of injury.

There is a mechanism for the court to extend the limitation period which is contained in s62A Limitation Act 1969 (NSW).  Relevantly s62B sets out the factors to be considered when determining such an application.  These are:

(1)  In exercising the powers conferred on it by section 62A, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a)  the length of and reasons for the delay,

(b)  the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c)  the nature and extent of the plaintiff’s injury or loss,

(d)  any conduct of the defendant that induced the plaintiff to delay bringing the action,

(e)  the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(f)  the time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff

Importantly s62A(2) states that the Court cannot extend the 12 year long stop limitation period beyond three years after the cause of action becomes discoverable.

Consideration

His Honour Walton J listened to submissions from the plaintiff and the defendant about the delay and the statutory purpose of the long stop limitation period.  His Honour agreed with the defendant about the statutory purpose of the limitation period, he however noted that the inclusion of s62A must be taken into account when determining statutory purpose and that section empowers the Court to extend the limitation period at its discretion.

The injury occurred in 2004, the long stop limitation expired in 2016.  The plaintiff submitted the injury was not discoverable until the opinions of the expert witnesses were received in 2017.  The defendant submitted that the injury was discoverable far earlier and that court did not have the power to extend the limitation period beyond three years after the date of discoverability.

Discoverability

His Honour Walton J:

  • Accepted that the plaintiff was unaware that the IVC repair led to narrowing which had caused the development of caval thromboses and the development of the other health issues until November 2017. The plaintiff did not acquire the requisite professional advice to know his injuries were sufficiently serious to justify the bringing of the cause of action until he received the expert report of Dr Morris.

 

  • Discussed the issue of prejudice and noted that some of the records had been lost but that ample other records existed to ensure a fair trial.

 

  • Rejected that the plaintiff should expected to identify incorrect medical advice and therefore know the true cause of his condition. The plaintiff lacked the necessary medical knowledge to discern between satisfactory and unsatisfactory medical opinion.

 

  • Noted that the plaintiff sought medical advice, but the true cause of his condition was not explained to him.

His Honour Walton J held that; ‘Knowledge of causation could only be attained through expert medical opinion.’ This was only apparent after Dr Morris’ report was received by the plaintiff.  The plaintiff took active steps to obtain legal and medical advice after his condition significantly deteriorated in 2014, however his case remained undiscoverable until November 2017.  The limitation period was extended until November 2020.

If you have been a victim of medical negligence and your injury occurred outside of the 12 year long stop limitation period, you may be able to have this limitation period extended under certain circumstances.  One of our expert solicitors can provide you with advice in a free initial consultation. Please call our office on (02) 4050 0330 or book an appointment online.

 

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