Australia: Late claim allowed for medical negligence: When is expert opinion a material fact of a decisive character?

In the recent decision of Quinn v State of Queensland (No. 2) [2016] QDC 156, the District Court of Queensland allowed an application for an extension of the statutory limitation period for a belated personal injury claim for damages arising from alleged medical negligence.

Here, Partner Robert Tidbury and Law Clerk Daniel McCulloch provide a summary of the District Court of Queensland's decision.

Take Away Points

  • Actions in respect of personal injury in Queensland, including claims for medical negligence ordinarily must be brought within 3 years after the injury occurred or else the action will be statute barred.
  • Where a claim is brought outside of the limitation period, the applicant will have the onus of satisfying the court that their claim could not have been brought earlier.
  • A court in its discretion may allow an extension of the limitation period under section 31 LAA on the basis of expert opinion obtained after the expiration of the limitation period if it is a material fact of a decisive character, subject to the satisfaction of all other requirements under section 31 LAA.
  • Expert opinion may be a material fact of a decisive character if it is evident that it "should have induced the applicant to sue".
  • The fact that competent solicitors might or should have taken necessary steps to protect an applicant's limitation period does not determine the prospects for an application under section 31 LAA.

Facts

The applicant, Ms Quinn, underwent several surgeries performed by Dr Alkidady between November 2011 and March 2012 to resection her colon due to bowel cancer. Ms Quinn suffered serious post-surgical complications including significant blood loss, lower back pain and probable infertility.

In June 2013 Ms Quinn was referred to Dr Taylor who performed surgery to relieve some of her post-surgical complications. Based on matters discussed with Dr Taylor and the Health Quality and Complaint Commission, Ms Quinn became aware of deficiencies in her care under Dr Alkidady. Ms Quinn also learned of the death of one of Dr Alkidady's patients and on 1 July 2013 sought legal advice.

Ms Quinn's then solicitors engaged Dr Greenberg to provide expert opinion regarding her treatment by Dr Alkidady. After unexplained delay by the solicitors in forwarding Ms Quinn's medical records, Dr Greenberg provided a report on 7 September 2014 (which was within the limitation period) in which he concluded that medical negligence was unlikely to be proved.

Ms Quinn promptly raised concerns with her solicitors regarding Dr Greenberg's report, however it was not until after the expiration of the limitation period that her solicitors consulted Professor Morris, a second expert, who provided a report on 10 May 2015 that supported a finding that Dr Alkidady was negligent.

As Ms Quinn's claim was time barred by the Limitations of Actions Act 1974 (LAA), she applied for an extension of the limitation period pursuant to section 31 LAA.

The key issue for the Court was whether under section 31 LAA a material fact of a decisive character relating to the right to bring an action was within the means of Ms Quinn's knowledge, prior to the receipt of Professor Morris' report. The respondent, the State of Queensland, argued that Ms Quinn had all of the information she needed to institute proceedings prior to Professor Morris' report and that the reason that proceedings were not instituted and/or that steps were not taken under the Personal Injuries Proceeding Act 2012 (PIPA) was because of the negligence of her former solicitors.

Decision

The presiding Judge, Reid DCJ, followed the Queensland Court of Appeal decision of Ervin v Brisbane North Regional Health Authority & Anor [1994] QCA 424. That case similarly concerned an application under section 31 LAA to extend the limitation period for a medical negligence claim due to a belated expert report. The majority held that the report constituted a material fact of a decisive character because it contained evidence that "should have induced the applicant to sue".

Applying Ervin, Judge Reid found that while Ms Quinn was deeply suspicious of Dr Alkidady's treatment, Dr Greenberg's report advised that she would be unlikely to prove negligence. That position was not altered until the receipt of Professor Morris' report; prior to that it could not be said that Ms Quinn ought to have sued.

It was accepted by his Honour and the respondent that the fault for the delay in obtaining Professor Morris' report lay with Ms Quinn's solicitors and there was no suggestion that Ms Quinn had failed to take reasonable steps as required by section 30(1)(c) LAA to obtain that report.

While Justice Reid accepted that competent solicitors should have taken steps to effectively protect Ms Quinn's interests under PIPA prior to the expiration of the limitation period, this was not a matter for consideration under section 31 LAA. Further, his Honour was not persuaded by the respondent's argument that granting the application would mean that the applicant was entirely protected by her solicitors' negligence. While his Honour acknowledged that this was the practical effect here, it would not always or even often be the case. Finally, there was no suggestion that the delay in bringing an action in negligence prejudiced the respondent's position.

As a result of these findings, Justice Reid granted Ms Quinn's application to extend the limitation period.

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