Netherwood v Hillier [2023] NSWSC 937 (on JADE)
Fagan J
Before the Court was a notice of motion filed by the third defendant (Dr Bell) seeking an order that the proceedings be struck out as against him pursuant to either r 31.36(3) of the Uniform Civil Procedure Rules 2005 (NSW) or r 12.7(1). Rule 31.36 is concerned with the requirement that a plaintiff in professional negligence proceedings must file an expert report supporting the elements of the tort together with his or her statement of claim. Rule 12.7 is concerned with undue delay or want of prosecution.
The third defendant was a fourth-year orthopaedic registrar who, with the second defendant orthopaedic surgeon, performed a spinal fusion procedure on the plaintiff. That was not initially understood, but after clarification of the facts the statement of claim was amended. That left one relevant allegation against the third defendant: mis-positioning the L5 left pedicular screw and failing to identify during the course of the operation that this had occurred and failing to correct it before the procedure was concluded.
Neither of the plaintiff’s experts, Dr Hopcroft or Mr Drnda, had expressed an opinion at any time that the inaccurate placement of the left pedicular screw at L5 was negligent. They did however refer to the screw being misaligned / misplaced, but did not clearly state that this was a departure by Dr Bell from the applicable standard of care and skill of a professional in the circumstances.
The court noted at [27]:
The plaintiff has opinions from Dr Hopcroft and Mr Drnda that the second defendant, in the exercise of reasonable care, should have counselled against the procedure, should not have undertaken it and, in circumstances where it had been performed, should have identified post-operatively that the screw had been misplaced and should have addressed that defect with further care and remedial action. But the plaintiff and his advisers have never been in possession of any medically qualified specialist opinion that the procedure was negligently performed by either Dr Fielding or Dr Bell. They should not have so alleged in the absence of such support. That is the effect of r 31.36.
The third defendant’s solicitors had repeatedly brought to the plaintiff’s attention the critical significance of his failure to serve, either in accordance with the rule or at a later time, any expert medical opinion that the procedure was executed negligently. The plaintiff had not responded with any demonstration of ability or willingness to rectify this defect in his case.
The proceedings under the statement of claim were dismissed as against the third defendant.
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