Expert evidence requirements for issue of professional negligence claims

Introduction 

A recent Supreme Court of NSW interlocutory judgment in the matter of Netherwood v Hillier deals with an application to strike out proceedings as against the third defendant, Dr David Bell for failure to serve expert reports supporting the claim against him.

Background to Netherwood’s Case

The plaintiff filed her statement of claim alleging negligence against three defendants in the provision of medical care and treatment.  The third defendant (Dr Bell) filed a notice of motion, seeking an order that the proceedings be struck out as against him pursuant to either rule 31.36 (3) of the Uniform Civil Procedure Rules 2005 (NSW) [Service of experts' reports in professional negligence claims] or rule 12.7(a) [Dismissal of proceedings etc for want of due despatch].

Interlocutory Judgment

Dr Bell was employed by the Greater Southern Area Health Service as a 4^th year orthopaedic registrar. When the proceedings were initially commenced, the plaintiff misapprehended that Dr Bell was in practice as an orthopaedic surgeon and alleged professional negligence against him in undertaking the fusion surgery,  together with the second defendant orthopaedic surgeon.  After clarification of the factual matrix, the plaintiff sought to narrow down the allegations of negligence against Dr Bell in her amended pleadings to mis-positioning of the L5 left pedicular screw, 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, has expressed an opinion at any time that the inaccurate placement of the left pedicular screw at L5 was negligent. They referred to the misalignment of the screw, but did not proffer opinions to the effect that there was a departure by Dr Bell from the applicable standard of care and skill of a professional in the circumstances.

In considering whether the plaintiff’s proceedings as against Dr Bell should be dismissed, Justice Fagan noted that:

• The failure of the plaintiff to serve any expert report that would support the allegation of breach of duty of care on the part of the third defendant in his performance of the operation is a contravention of r 31.36. The purpose of r 31.36 is to prevent the institution and maintenance of proceedings in negligence against professional people purely on the basis of a view of the plaintiff or of his lawyers as to what constitutes a shortfall relative to the standards of a professional calling and to require that such a proceedings can only go forward if supported by the opinion of a person who is an expert in the relevant field.
• The plaintiff and his advisers have never been in possession of any medically qualified specialist opinion that the procedure was negligently performed by Dr Bell. They should not have made the allegations against the doctor in the absence of such support.
• Dr Bell’s solicitors have 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 has not responded with any demonstration of ability or willingness to rectify this defect in his case.
• Justice Fagan was satisfied that taking into account all the above circumstances, this was a case in which the Court must exercise its discretion under rule 31.36 to dismiss the proceedings against Dr Bell for non-compliance with that rule.

Conclusion

Netherwood’s case reiterates the importance of complying with expert evidence requirements supporting elements of the claim to issue professional negligence claims. Plaintiffs and their lawyers are required by the rules to have expert opinion to identify the negligence in professional indemnity matters, not simply decide for themselves that the conduct of an expert was negligent.