Schuler v Central Sydney Area Health Service [2009] NSWSC 523

Schuler v Central Sydney Area Health Service [2009] NSWSC 523

Although the preponderance of the medical evidence suggested that earlier AFP and further testing probably would not have led to prenatal diagnosis of mosaic Trisomy 18 in time for safe abortion, the Court was not trying the case. The Defendant had not shown that the proposed amendment met the General Steel threshold of being doomed to fail. There was some evidentiary basis for an argument that on 13 May 1994 the hospital had a duty to perform an AFP test and either perform or advise about a triple test, and that there was a causative link to the alleged damage. The amendment was arguably a refinement of the original pleading and was allowed, with interrogatories also allowed.

Jurisdiction
Australia
Judgment Date
01 June 2009
Procedural Posture
Medical Negligence Civil Proceedings; Motion for Leave to Amend Statement of Claim and Administer Interrogatories / Interlocutory Motion Before Trial
Outcome
Plaintiff granted leave to amend and administer interrogatories; Plaintiff ordered to pay Defendant's costs of the motion.
Legal Topics
['leave to Amend Pleadings' 'interrogatories' 'futility of Proposed Amendment' 'general Steel Summary Dismissal Principles' 'antenatal Screening and Alleged Failure to Advise or Test' 'civil Procedure Act Overriding Purpose']
['civil Procedure' 'medical Negligence' 'torts'] ['leave to Amend Pleadings' 'interrogatories' 'futility of Proposed Amendment' 'general Steel Summary Dismissal Principles' 'antenatal Screening and Alleged Failure to Advise or Test' 'civil Procedure Act Overriding Purpose']

Case Brief

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Procedural Posture

Medical Negligence Civil Proceedings; Motion for Leave to Amend Statement of Claim and Administer Interrogatories / Interlocutory Motion Before Trial

Legal Issues

  1. 1 ['Whether the Plaintiff should be given leave to file and serve a Second Further Amended Statement of Claim alleging failure to perform an AFP test and failure to advise that she could have a triple test for genetic abnormalities.' 'Whether the proposed amendments were futile because they were doomed to fail under the General Steel test.' 'Whether leave should be refused because the amendments would increase the length and expense of trial and cause delay, having regard to s 56 of the Civil Procedure Act 2005.' 'Whether the Defendant should be ordered to answer the proposed interrogatories.']

Ratio Decidendi

Although the preponderance of the medical evidence suggested that earlier AFP and further testing probably would not have led to prenatal diagnosis of mosaic Trisomy 18 in time for safe abortion, the Court was not trying the case. The Defendant had not shown that the proposed amendment met the General Steel threshold of being doomed to fail. There was some evidentiary basis for an argument that on 13 May 1994 the hospital had a duty to perform an AFP test and either perform or advise about a triple test, and that there was a causative link to the alleged damage. The amendment was arguably a refinement of the original pleading and was allowed, with interrogatories also allowed.

Court Disposition

Plaintiff granted leave to amend and administer interrogatories; Plaintiff ordered to pay Defendant's costs of the motion.

Orders

  • ['Plaintiff has leave to file and serve within 14 days a Second Further Amended Statement of Claim in accordance with the draft annexed and marked B to the affidavit of Brian Manning Dodd, sworn 25 September 2008.' 'Defendant within 21 days is to furnish replies on oath to the draft interrogatories annexed and...