Chemotherapy: Timing and perception of peril for mental harm + Omission of initial expert evidence report.

Barlow & Ors v St Vincent’s Hospital Sydney Limited [2020] NSWDC 500 (on Caselaw) arose against the background of a claim alleging chemotherapy ‘underdosing’ of cancer patients. Interlocutory motions requiried consideration by the Court. The relatively short decision contains a lot fact sensitive detail, however the following parts my be of broader interest.

Timing of the peril.

One issue was that of learning of the victim being put in peril after death of the victim. The defendant argued that the class of plaintiffs who were close family members of the patient and who only learned of the negligent off-protocol flat-dosing after the death of the patient cannot succeed as they do not have a reasonable cause of action. The Court rejected that submission and held at [80] that “what each plaintiff has to show is that they have suffered pure mental harm arising wholly or partly from mental or nervous shock in connection with the victim being put in peril by the act or omission of the defendant – s 30(1). There is nothing in the legislation to suggest that the mental or nervous shock must arise at the time that the victim is put in peril. Common human experience is that after a person finds out about a traumatic event which has happened to a relative, be it a death, or an injury, or the relative being put in peril, there is a mental reaction. It might only be concern or relief or worry, but in some cases it can result in a person suffering a psychiatric illness through learning of the threat to the relative, some time after the event.”

Perception of the peril.

Some plaintiffs did not fall within the statutory category of close family members. Counsel for the plaintiffs submitted that one such plaintiff, Ms Kemp, fell within the words of s 30(2)(a) of the CLA. He submitted that Ms Kemp witnessed, at the scene, the victim being put in peril. However the Court held at [90]: “The requirement in s 30(2)(a) is not satisfied just because someone witnesses the scene where a person is put in peril. Even if Allana Kemp had been sitting with Adele Webb as her chemotherapy was administered, while she might arguably be at the scene, and at that scene Adele Kemp was put in peril (unbeknown to her or to Allana Kemp), it could not be said that Allana Kemp had “witnessed, at the scene, the victim being… put in peril”. Allana Kemp did not know and could not have realised that her aunt was being put in peril by the chemotherapy.”

Rule 31.36 UCPR and the failure to serve an initial expert’s report.

The defendant moved for a dismissal of the proceedings because no such report had been served with the Statement of Claim. The plaintiffs asked the court to dispense with the obligation placed on the plaintiff to file an expert report, relying upon the opening words of r 31.36(1) of the UCPR, being “unless the court orders otherwise”. In the alternative, the plaintiffs sought an order that they be deemed to have satisfied the obligation to serve such a report, because they had served upon the defendant three reports of inquiries conducted under s 122 of the Health Services Act 1997 (NSW), the report of the Select Committee of the Legislative Council referred to above, and the letters sent by SVH to the patients or family members advising of the underdosing.

The Court noted at [123] that “While the plaintiffs were undoubtedly in breach of r 31.36 of the UCPR, and are thus at risk of having all of the proceedings dismissed for breach of that Rule, there is an air of unreality about the submission made for the defendant. I have already referred to the evidence given by Professor Currow, the co-leader of the s 122 inquiry, that underdosing was off-protocol, divorced from the evidence and “off the radar.”

At [125], the Court held that “I find that the defendant is fairly apprised of the nature of the plaintiffs’ case in relation to breach of duty of care. Having regard to the strength of the views presented by highly qualified medical specialists, both to the s 122 inquiries and the Legislative Council, it could not be thought that the plaintiffs’ claim is unmeritorious litigation, which is the kind of case that r 31.36 of the UCPR is designed to discourage. Nor could it be thought that the proceedings had been commenced without reasonable grounds for believing on the basis of provable facts and an arguable view of the law that each action has reasonable prospects of success.”