Supreme Court New South Wales

• Medium Neutral Citation: Porter v Le; Porter v Western Sydney Local Health District [2014] NSWSC 883
• Hearing dates: 21 August 2013
• Decision date: 03 July 2014
• Before: Harrison J

Decision

1. Order that there be joint conferences of experts on the separate questions of liability in each case and a third joint conference of experts on the combined question of causation in both cases.

2. Order that the costs of the determination of these issues be the costs in the proceedings.

• Catchwords: MEDICAL NEGLIGENCE - experts - joint conferences of experts - where complex issues of breach of duty and causation arise - constitution of conferences dealing with competing opinions derived from differing medical specialties - whether conferences should be divided along lines of expertise or issues
• Legislation Cited: Uniform Civil Procedure Rules 2005
• Cases Cited: Porter v Le [2010] NSWSC 998; Porter v Le [2014] NSWSC 101
• Category: Procedural and other rulings
• Parties: Arthur Porter (Plaintiff); Phong Le (Defendant) (2007/265150); Western Sydney Local Health District (Defendant) (2011/200099)
• Representation: Solicitors: C O'Dea (Plaintiff); Norton Rose (Le); Crown Solicitor (Western Sydney Local Health District)
• File Number(s): 2007/265150 & 2011/200099
• Publication restriction: Nil

Judgment

1 HIS HONOUR: The parties in these matters are unable to agree upon the question of whether one joint conference of experts should take place or whether there should be a series of expert conferences. The parties have also not agreed upon who should be permitted to attend whatever conferences are ordered or whether they should be organised upon the basis of identified legal and medical issues or by reference to particular medical specialties. A similar dispute exists with respect to the issues of both breach of duty and causation. The disputes are said not simply to be argumentative, but apparently have potentially significant procedural and cost ramifications.

2 I have previously considered contested issues in these proceedings: see Porter v Le [2010] NSWSC 998 and Porter v Le [2014] NSWSC 101. Familiarity with those decisions is assumed for present purposes.

Practice Note SC Gen 11

3 Joint conferences of experts have been dealt with in a practice note. Clauses 5, 6 and 7 of Practice Note SC Gen 11 provide as follows:

"Objectives of joint conferences

5. The objectives of such directions for a joint conference of experts include the following:

the just, quick and cost effective disposal of the proceedings;

the identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference. The joint report may be tendered by consent as evidence of matters agreed and/or to identify and limit the issues on which contested expert evidence will be called;

the consequential shortening of the trial and enhanced prospects of settlement;

apprising the Court of the issues for determination;

binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial. (The joint report may, if necessary, be used in cross-examination of a participating expert called at the trial who seeks to depart from what was agreed); and

avoiding or reducing the need for experts to attend court to give evidence.

Preparing for a conference

6. The parties should agree on the following matters:

the experts to attend;

the questions to be answered; and

the materials to be placed before the experts.

7. The experts to attend should be those specified in the Court's order. If none are so specified, the parties should arrange for experts to attend who have expertise pertinent to the questions to be asked. Separate conferences may be required between experts in different specialities in relation to different issues arising in the case."

4 These matters are instructive in the present circumstances.

UCPR 31.20 and 31.24

5 The rules also deal with the question of joint conferences of experts. These rules provides as follows:

"31.20 Court may give directions regarding expert witnesses

(1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings.

(2) Directions under this rule may include any of the following:

(a) a direction as to the time for service of experts' reports,

(b) a direction that expert evidence may not be adduced on a specified issue,

(c) a direction that expert evidence may not be adduced on a specified issue except by leave of the court,

(d) a direction that expert evidence may be adduced on specified issues only,

(e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue,

(f) a direction providing for the engagement and instruction of a parties' single expert in relation to a specified issue,

(g) a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue,

(h) a direction requiring experts in relation to the same issue to confer, either before or after preparing experts' reports in relation to a specified issue,

(i) any other direction that may assist an expert in the exercise of the expert's functions,

(j) a direction that an expert who has prepared more than one expert's report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.

31.24 Conference between expert witnesses

(1) The court may direct expert witnesses:

(a) to confer, either generally or in relation to specified matters, and

(b) to endeavour to reach agreement on any matters in issue, and

(c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and

(d) to base any joint report on specified facts or assumptions of fact,

and may do so at any time, whether before or after the expert witnesses have furnished their experts' reports.

(2) The court may direct that a conference be held:

(a) with or without the attendance of the parties affected or their legal representatives, or

(b) with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or

(c) with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue).

(3) An expert witness so directed may apply to the court for further directions to assist the expert witness in the performance of his or her functions in any respect.

(4) Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.

(5) An expert witness who makes such an application must send a copy of the request to the other expert witnesses and to the parties affected.

(6) Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing."

6 These rules also need to be born in mind.

The plaintiff's position

7 The plaintiff says that there should be no order for joint conferences of experts or for concurrent expert evidence in either proceeding apart from conferences in relation to breach of duty as follows:

(1) In the case against Dr Le, a general practitioner breach of duty conference and a breach of duty conference for those non-general practitioners who have expressed an opinion on how a specialist within his or her area of expertise would have treated the plaintiff's condition and the rationale for that treatment.

(2) In the case against the hospital, a breach of duty conference.

8 Accordingly, the plaintiff seeks the following orders in the case against Dr Le:

(1) UCPR 31.20 be dispensed with in relation to all liability experts except those relating to breach of duty by the defendant.

(2) There be a joint conference of general practitioners on breach of duty of care comprising Dr Kelly, Dr Jeong and Dr Walsh.

(3) There be a joint conference of non-general practitioners who express an opinion on the treatment and rationale for treatment of the plaintiff's condition (within his or her area of expertise) comprising Professor Wakefield, Associate Professor Havas, Dr Yan, Professor Wormald and Professor Katelaris.

(4) The parties provide a single agreed set of questions, assumptions (one for the plaintiff marked A and one for the defendant marked B) and agreed materials for each expert at least 14 days prior to the conference.

9 The plaintiff also provided a list of questions for each of the expert conferences referred to in orders (2) and (3) above.

10 The plaintiff seeks the following orders in the case against the hospital:

(1) UCPR 31.20 be dispensed with in relation to all liability experts except those relating to breach of duty by the defendant.

(2) There be a joint conference of general practitioners on breach of duty of care comprising Professor Watson, Professor Bell, Associate Professor Lee and Associate Professor Chambers.

(3) The parties provide a single agreed set of questions, assumptions (one for the plaintiff marked A and one for the defendant marked B) and agreed materials for each expert at least 14 days prior to the conference.

11 Once again, the plaintiff also provided a list of questions for each of the expert conferences referred to in orders (2) and (3) above.

12 With respect to the question of causation, the plaintiff submitted that the experts' opinions on the issue appear entrenched, suggesting once again as with breach of duty, but in this context, that a single causation expert conference or series of conferences will be unlikely to be of any use. In the event that I was of a different view, the plaintiff suggested that the causation expert conferences be split.

13 In the case against Dr Le, that would require the following:

(1) There be a joint conference of general practitioners on breach of duty of care comprising Dr Kelly, Dr Jeong and Dr Walsh.

(2) There be a joint conference of non-general practitioners who express an opinion on the treatment and rationale for treatment of the plaintiff's condition (within his or her area of expertise) comprising Professor Wakefield, Associate Professor Havas, Dr Yan, Professor Wormald and Professor Katelaris.

(3) There be a joint conference of infectious disease physicians/microbiologists comprising Professor Rawlinson, Associate Professor Hudson, Associate Professor Eisen and Professor Inglis.

(4) There be a joint conference of endocrinologists and immunologists/clinical pharmacologists comprising Associate Professor Hooper, Professor Wakefield, Professor Howes, Dr Greenway and Professor Katelaris.

(5) There be a joint conference of otolaryngologists/respiratory physicians comprising Associate Professor Havas, Professor Wormald and Dr Yan.

(6) There be a joint conference of neuroradiologists and neurologists comprising Dr Parker, Professor Watson, Dr Smith and Associate Professor Chambers.

(7) There be a joint conference of ICU specialists comprising Professor Bell and Associate Professor Lee.

(8) The parties provide a single agreed set of questions, assumptions (one for the plaintiff marked A and one for the defendant marked B) and agreed materials for each expert conference.

14 In the case against the hospital, it would require the following:

(1) There be a joint conference of general practitioners on breach of duty of care comprising Professor Watson, Professor Bell, Associate Professor Lee and Associate Professor Chambers.

(2) There be a joint conference of infectious disease physicians/microbiologists comprising Professor Rawlinson, Associate Professor Hudson, Associate Professor Eisen and Professor Inglis.

(3) There be a joint conference of endocrinologists and immunologists/clinical pharmacologists comprising Associate Professor Hooper, Professor Wakefield, Professor Howes, Dr Greenway and Professor Katelaris.

(4) There be a joint conference of otolaryngologists/respiratory physicians comprising Associate Professor Havas, Professor Wormald and Dr Yan.

(5) There be a joint conference of neuroradiologists and neurologists comprising Dr Parker, Professor Watson, Dr Smith and Associate Professor Chambers.

(6) There be a joint conference of ICU specialists comprising Professor Bell and Associate Professor Lee.

(7) The parties provide a single agreed set of questions, assumptions (one for the plaintiff marked A and one for the defendant marked B) and agreed materials for each expert conference.

15 In support of these proposals, the plaintiff submitted that it was not in dispute between the parties that there should be a separate conference with respect to breach of duty by Dr Le. The plaintiff contended, however, that the standard of Dr Le's care should only be measured by reference to general practitioner opinion.

16 It is the plaintiff's case that the hospital breached its duty to exercise reasonable care and skill in the management of his right adrenal haemorrhage. Dr Le and the hospital seek a separate expert conference with respect to the hospital's alleged breach of duty. The plaintiff accepts this.

Dr Le's position

17 Dr Le maintains that there should be joint conferences of experts and concurrent expert evidence in both proceedings.

18 The central breach question in the case against Dr Le involves two issues. First, whether Dr Le's prescription of Panafcort was a valid treatment and secondly, whether he breached his duty to the plaintiff by prescribing it. Dr Le's position is that all experts who have provided opinions on the question of his alleged breach of duty should meet in one expert witness conference and thereafter participate in producing a joint report on that issue.

19 The causation question also involves two issues. First, whether or not the prescription of short course Panafcort on 26 July 2004 caused the plaintiff's unilateral adrenal gland rupture and secondly, whether or not it caused his cerebral abscesses. The causation issues have led to the expression of different opinions from experts with different specialties. Dr Le maintains that separate expert conferences along differing specialty lines proposed by the plaintiff will be cumbersome and potentially ineffective if conflicting answers emerge. There are associated costs concerns in adopting the plaintiff's proposals as well. His written submissions about this are worth repeating:

"20. It is readily apparent from reading the expert reports served by the parties in this and the related litigation (concerning the Local Health District), that the experts have not confined their opinions by reference to particular specialties and/or sub-specialties. The specialist or sub-specialist description of a medical practitioner does not of itself confine the subject matters about which the medical practitioners may provide opinions. The medical practitioners have knowledge based on their training, study and experience and their opinions are based, either wholly or substantially, on that knowledge. Such knowledge is not limited to the knowledge obtained in attaining specialist or sub-specialist qualifications. All the plaintiff's experts will have an opportunity to participate in the discussion and have his/her opinion recorded as part of the Joint Report on causation.

21. To arrange five separate conferences will cause or result in undue waste of time and resources. To attempt to corral the experts into the five conferences defeats a primary purpose of conclaves and the preparation of the Joint Report. Adopting the plaintiff's proposed approach will necessarily lead to duplication, stifle discussion and impede the professional debate amongst all the experts who have the knowledge to opine.

22. Further, just as noted in the context of the breach of duty conference submissions, the plaintiff's approach would necessitate further conferences between/among experts to consider reports produced by other groupings of experts.

23. Dr Le opposes the serial giving of evidence by expert after expert. Such an approach has been discouraged by the Court for it will involve cross examination of each expert designed to cover all possibilities which may arise having regard to the evidence that may/may not be given by other experts later in the trial. The input of experts from different specialties may assist other medical practitioners in adjusting their own perspective, insight and opinion."

20 Dr Le also opposed the giving of evidence at the trial by experts in sequence.

Western Sydney Local Health District's position

21 The hospital submits that there should be a number of expert conferences. Even though some experts may on this approach be required to participate in more than one of these proposed conferences, the hospital stressed the need to keep them "conceptually pure". That was a reference to the need to ensure that only those experts who have offered opinions in regard to particular issues attend and participate in conferences dealing with those issues.

22 The hospital suggested that three conferences be convened: one dealing with breach of duty by Dr Le, one dealing with breach of duty by the hospital and one joint conference on causation. The hospital reasoned as follows.

23 With respect to breach of duty, there is no overlap between allegations of negligence against Dr Le and the hospital. Factual disputes can be resolved by the formulation of alternative assumptions. There is no need for experts in a conference addressing allegations of breach of duty by Dr Le to be involved in a conference of experts addressing allegations of breach of duty by the hospital.

24 The hospital emphasised that the attendees at any particular conference ought to be determined by reference to the questions to be answered. Only those experts who have addressed the particular questions, whether generally or specifically, or the underlying issue, should attend. Generally speaking, the specific area of expertise of any particular expert should be immaterial. The proposition that experts with specialist qualifications in differing areas are capable of expressing opinions in relation to other fields of medicine is common sense. Specialist medical practitioners necessarily have a significant degree of overlapping expertise. The hospital proffered the following written submission about this:

"Although the plaintiff's expertise is sourced from three areas, the allegations of negligence relate, and relate solely, to what ought to have been the anticipated course of events once the plaintiff had been admitted to the Intensive Care Unit at Westmead Hospital. Experts within different specialities are able to comment on those issues. Experts in differing areas of expertise may be able to reach agreement about relevant practices and state of knowledge. If that occurs, then the areas of dispute are significantly narrowed. If dispute is maintained, then the reasons for ongoing dispute will be recorded in the conference of expert document and will be agitated at trial. Where such dispute exists, it may well be that a trial judge will give consideration to consideration to the expertise of a particular witness in relation to a particular area of dispute. Even if this were to occur, it by no means would deprive the Court of accepting the evidence of one witness over the other, regardless of the formal qualifications or speciality of that expert."

25 With respect to causation the hospital observed that, while the issue of causation is undoubtedly complex, many expressions of opinion rely to a greater or lesser extent upon opinions expressed by others. In such circumstances, the correctness of opinions formed in that way can only be enhanced. However, if the causation question is broken down into discrete areas of specialty, experts who have formed and expressed opinions based upon the conclusions of others will not be able to be corrected or persuaded when confronted with competing opinions from experts in other disciplines. The hospital therefore maintained that the structure most likely to produce a result consistently with the aims of joint conferences of experts is a single conference of experts who have offered opinions on causation in either proceeding. The hospital anticipated that the questions for consideration and the structure of such a conference could be agreed. A facilitator will probably be necessary.

Consideration

26 In my opinion there should be three joint conferences of experts. There should be separate conferences in the plaintiff's cases against Dr Le and the hospital on the question of breach of duty by them and a third joint conference of experts on the question of causation of the plaintiff's loss and damage.

27 I appreciate the concern expressed by the plaintiff for the dissection of issues and specialties. I do not, however, accept that it is either practical or beneficial to arrange a multiplicity of what amount to sub-conferences. The prospect of manifold competing answers to an unwieldy set of questions is the possible, if not the likely, outcome of such an approach.

28 In addition, the costs associated with the proposed exercise would appear to be out of proportion both to the conduct of litigation such as these cases in general, and to the particular interests of the parties concerned. I have already expressed concern for the costs burden confronting the tutor if unsuccessful or the defendants if they are unable to realise costs orders that may favour them. Correspondingly, the defendants should not be exposed to costs if the plaintiff succeeds that are unreasonably disproportionate to the issues and outcomes at stake.

29 There is, however, a more fundamental concern. I do not accept that medical experts in particular areas of specialty are the inevitable captives of their particular disciplines. Just as the legal representatives and judges are required to master the competing issues and contentions called up for consideration in cases such as these, so it is with expert witnesses. Any expert conforming to the code of conduct that binds him or her will be expected confidently to refrain from embarking upon the expression of opinions beyond the relevant field of study or acquired experience and expertise. The fact that all experts at a joint conference are neither similarly qualified nor similarly specialised is a fact of life in all litigation that depends on the assessment of technical issues. I am not convinced that an epidemiologist will fail to appreciate that he or she will be of limited value in solving an isolated orthopaedic or neurological question. I am not convinced, however, that his or her attendance at a conference designed to solve a problem raising combined and connected issues in all three specialties is problematic. Indeed, it is the very nature of the problem that people do not often or necessarily get sick or fall victim to medical insults in easily divided and neat categories. The same can be said of the alleged victims of poor medical outcomes.

30 It should be observed that my preference for issues-based joint conferences of experts in these cases does not foreclose a different approach in other circumstances. It is obviously not only not possible, but also dangerous, to say as an immutable proposition that agreement from a joint conference constituted by experts in one field is any more or less likely to produce agreement than a joint conference of experts in differing fields. Each case must depend upon its own particular facts. I am simply not satisfied that the search for answers exposed for consideration by the issues in these cases will be confounded by interdisciplinary conferences of experts burdened with that task.

31 The question of Dr Le's liability should be the subject of one joint conference of experts. It seems to be accepted that only those experts who have provided opinions on that issue should attend. The same approach should apply to the proposed joint conference of experts on the question of the hospital's alleged breach of duty. A third joint conference of experts drawn from both cases on the single question of the cause of the plaintiff's loss and damage should then follow.

32 I perceive that, to the extent that they have not already done so, the parties will be able to agree on the relevant sets of assumptions with which the experts are to be provided and questions that they are to be asked to answer in all three cases. I also anticipate that the participants at the conferences will have been sufficiently identified by the remarks I have made. Agreement about participants, assumptions and questions is certainly something that I would expect could be achieved having regard to the wealth of eminent legal experience marshalled by all sides of the current disputes.

33 As presently advised I would not favour the giving of evidence by experts other than concurrently. The rules provide for concurrent evidence. It is conceivable that the outcome of any of the joint conferences of experts may inform the adoption of some other approach. If and when that occurs, I would be prepared to hear further submissions on the issue.

Orders

34 I propose the following orders:

(1) Order that there be joint conferences of experts on the separate questions of liability in each case and a third joint conference of experts on the combined question of causation in both cases.

(2) Order that the costs of the determination of these issues be the costs in the proceedings.

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Decision last updated: 03 July 2014