McCarthy v Kidd & Anor S31/2002 [2002] HCATrans 374 (9 August 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S31 of 2002

B e t w e e n -

BARBARA ANN McCARTHY

Applicant

and

IAIN HARRISON KIDD

First Respondent

THE HUNTER AREA HEALTH SERVICE

Second Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 2002, AT 11.47 AM

Copyright in the High Court of Australia

MS B.A. McCARTHY appeared in person.

MR J.P. GORMLY, SC: If the Court pleases, I appear for the respondent. (instructed by Tress Cocks & Maddox)

GLEESON CJ: Yes, Ms McCarthy.

MS McCARTHY: I am representing myself today and there is a few matters that I have to sort of get through and not a great deal of time to get through and I guess causation is one of them in relation to my medical negligence case.

The trial judge in the District Court was concentrating on a term called "fibrosis", but that was not even in the statement of claim for damages. I claimed for damage to the sciatic nerve and a sporadic reaction to the iron injections and I have the evidence here that shows that I do suffer that complaint, and if I may I would like to pass it up to you.

GLEESON CJ: We are not here to deal with matters of evidence, Ms McCarthy.

MS McCARTHY: All right.

GLEESON CJ: You have to show us error in the reasoning of the Court of Appeal.

MS McCARTHY: All right. I do have some authorities here in relation to other case matters. Can they be handed up to you?

GLEESON CJ: Yes.

MS McCARTHY: My medical records have been tampered with and for a long time I did not know that a Dr Peter Cooke existed and then recently I located him and I went to his practice and he told me that he did not recall ever treating me. I have a stat dec here in relation to that. He was supposed to change the medication chart from IVI to IMI, and that is not possible, your Honours, because I was never, ever offered an alternative at the time. I have the medical records here and you can visibly see where some of the entries have been altered. I thought I would have to show causation to get a full appeal, if I was to be allowed - if I was to be given leave of the Court to appeal, I thought I would have to show you causation to be able to get a full appeal and to show you damages.

GLEESON CJ: What you have to show us is where the Court of Appeal of New South Wales went wrong.

MS McCARTHY: Okay then, all right. Well, Judge Rolfe said that I was a poor historian, which was a very unfair comment to make. I remember every detail about my treatment in 1984. He also said that I was an unreliable witness, which, again, is not correct. Now, I have here, when Sister Kaczor was being - this was, I think, day one into the hearing - Sister Kaczor was being cross-examined and I would like just to be able to read something from that, if I may.

Mr Gormly, he was cross-examining her. It has got here, "Yes, as to whether, what, whether she wanted to go ahead and sue Dr Kidd or not? In the telephone conversation was that the content of them?" Then she replies, "The ones at Western Suburbs." Mr Gormly says, "Yes, they are the only telephone conversations, aren't they?" Witness, "Yes, the two at Western Suburbs and the one at John Hunter. How was the case progressing? Did I know what was happening?" And she also did mention, "I was the one that gave her all the injections." "Did you respond to that?" "No, I didn't." Mr Gormly says, "Do you remember whether that was the case or not?" "I knew it was the case." In other words, she knew that that was the case, that she gave me all the iron injections in 1984, but then she goes on to say, "I have not given her all the injection", after saying, "Yes, that was the case".

Mr Gormly says, counsel says, "Sorry, when you say all the injections, what are you referring to?" "I am referring to her admission into the hospital and her daily iron injections that she had while she was there." "Did you give her all those injections or some of them?" "No, I only gave two injections." "When you say all of them, what are you referring to?" "Well, every day that she was there." That is true and I have said all the way along that the information that was given in the court, the evidence, was misleading, especially on the part of Sister Kaczor. They brought two other sisters into the hospital that have never treated me and the barrister asked both of them, "Do you recall ever treating Mrs McCarthy?" They said, no, they did not.

The question then was asked, "Is that your signature on the notes?" And they replied "Yes." But if you have a look at the medical records, you can visibly see they have been altered and there should be injections every day for the 10 days that I was there. The only entries here is entries of the 12^th, the 13^th, the 14^th, the 15^th and no entry of the 16^th, an entry of the 17^th, but the day that I went home, on the records here, on the 17^th, there is no mention of having an iron injection on that day.

You can see that some of the dates have been altered and not only that, they do not correspond, they do not coincide. You have got dates of the - sorry about this - and also an R. Cooke, he was the doctor that was supposed to witness my signature for a hysterectomy. That was done. I signed that in the administration section of the hospital in front of one of the staff members there.

You have got the 9^th here, the 9^th there and then the dates of me having the injections and up the top is has "IVI" and was crossed out and "IM" was put there by Dr Peter Cooke who told me he does not recall ever doing that, and then again you have got the 9^th and the 10^th, and the 10^th again up here and you can see that has been altered - you can see that has been altered. And then you got have 10^th, 11^th and the 12^th should come next. There is no entry of the 12^th. We are back down to the 11^th. Then we are back over here to the 8^th and the 9^th. No entry there at all, no date there. Then after the 9^th we have got the 12^th, the 11^th, the 14^th, 15^th, 16^th, 13^th, 14^th. Now, the 17^th should have came after the 16^th but it is the 13^th, 14^th, and 16^th, 17. But she was questioned about - Sister Kaczor was questioned about the injections. She was asked the question about why there is not an entry on the 16^th but there is an entry on the 16^th in the nursing notes.

Now, that entry should have been there and for each day she was correcting, saying that I had an injection for every day that I was in the hospital, because I did. There should be an entry there is these notes here, the medication chart, showing injections every day. I mean, I can only point this out to you. It is there for you to look at if you want to inspect it. But my medical records, without a doubt - and I have proclaimed this right through, ever since the hearing before the trial judge in the District Court. I never made this statement before that because I did not know - I mean, I had not heard the evidence and I had not then realised that, hey, these things did not happen.

In 1980 I had a termination of pregnancy and I had a blood transfusion and I kept telling them I wanted the transfusion off me but they left it on the whole time. I was in tears and I was upsetting the other patients. I had a termination of pregnancy and the other patients were not very happy - you know, I mean, I will not use the term "happy" but there was a lot of tension in the ward because I was reasonably young at the time and so were the other women and they did not approve of me having the termination so they moved me into a ward of my own, into a room of my own - I will rephrase that.

There is nothing in the 1980 records showing that but there is, however, in the 1984 records saying that I was being vocal and upsetting the other patients and that they would move me into bed 23, which is not the case. I was never moved and I have the evidence that I need of somebody that came to the hospital to visit me and knows I was in the ward the whole time - in the one ward in 1984.

I am in the process of trying to get somebody to come forward that may have been there in 1980 and might remember. I mean, termination of pregnancies and painful transfusions and injections, that is not something you forget, not even somebody, if it is not happening to them, it is not something you forget. I do not think I would forget it if I was in hospital and I witnessed that, and I am trying to see whether somebody will come forward that was there in 1980 when I was, however, moved into a single room of my own. The records are, without a doubt, being tampered with.

So, I guess so far are points of law that - I mean, it is illegal to alter documents but I remember once years ago I was at legal aid and I was talking to a woman there that worked at Wagga Wagga Hospital. She was not at the time but she said to me it was unbelievable the way the hospital and the staff used to change the records when people had litigations going. Well, I am sorry to this say this, but that is what has happened in my case.

Mr Campbell, he represented me in the Supreme Court, and I do not think he represented me as vigorously or he used the resources available to him at the time. I had submitted my own submissions and grounds of appeal. He never argued them and I realised that he was going to amend submissions and grounds but I thought he would argue my own. But a point that he made was that the judge at the hearing, the trial judge, misdirected himself to causation, and he did.

I have all the evidence here that I suffered nerve damage and that was in my statement of claim for damages. There was no mention of fibrosis, although I was reading Dr Etheredge's report and he mentioned the term "fibrosis nerve damage". So, in actual fact, the fibrosis is in relation to the nerve damage that I suffer anyway. He said I was a - Dr Kidd called me a "hopeless individual" and I really strongly believe that when he came to that - when he started to feel that way about me, I think it was then to stop - I think it was time to then stop treating me. I do not think I am a hopeless individual. If I was a hopeless individual, I would not be here doing what I am doing today. I do not classify myself as being that, but the judge in the trial court did not consider that, okay.

If it was to be accepted that she had made a mistake, this sister, and said that I had had 10 injections and she had made a mistake, it was okay for her to make a mistake, possibly, which I know she did not because, yes, I did have 10 injections, but, I mean, I conducted myself as I am doing today in a manner expected by the Court. I did, however, have an outburst of emotion when I was saying, reading - not reading, sorry, rephrase - when I was saying how he had wrote to one of his colleagues and called me a "hopeless individual" and said that I had "haunted" him "off and on for . . . 12 years".

I was talking to Dr Pete Cooke and Dr Peter Cooke said he was a very strange man. I did not get into detail about what he meant, but then I rang another doctor, a well-known doctor in Newcastle - I wanted to try to see if I could see if, when I had the hysterectomy - my ovaries are not there any more and I believe that he has taken them out without my consent, he performed a total hysterectomy instead of a hysterectomy on me - and he said Dr Kidd was a very strange man. Well, I believe that I have suffered the consequences of whatever that statement might have been, whatever it meant, whether they meant his techniques or whatever. But I have been through hell at the hands of Dr Kidd. He curetted me in his surgery under local anaesthetic and I remember screaming out, "I want to go home", and then I rung up the hospitals to find out is that the usual procedure. I have been told, "No, you have to have a curette in a hospital under general anaesthetic, not local anaesthetic."

So I am saying I would like to get leave of the Court today on the basis that my medical records have again, without a doubt, been altered. If I was to get leave of the Court, I would be calling - I would be subpoenaing Dr Peter Cooke as a witness because he specifically said he does not recall ever seeing me. He would not give me a copy of his signature. I asked him for that. He just said he wanted to talk - he said that he may have to talk to his solicitor about it. But certainly I never, ever met a Dr Peter Cooke in the hospital. The only doctor I ever met was Dr Kidd. The only sister that ever treated me was doctor - Sister Kaczor. She was the only sister that ever gave me the injections.

I got a letter - while I was waiting for the hearing, for the judgment in the District Court, I had to go to Sydney, my daughter's little girl was sick, and I rang a couple of times to find out if the judgment had been handed down. The first time I rung they said, "We will put you through to the associate's office", and she said to me, "I don't want you" - chambers, I mean - she said, "I don't want you to ring here any more. You're not allowed to." Now, I never asked to ring there - I never asked to speak to that section, to either the judge or the associate.

I rang again a couple of times just to see whether there was anything on the computer that would say - to give me an idea when the judgment would be handed down so I could be there for it. But then I got a letter from my then acting solicitors - sorry about this, I am trying to find it - it says here - and I am starting to wonder whether that might have influenced the decision because when I was having the outburst of emotion in the District Court the judge retired for a few minutes and called back to his chambers Mr Gormly and Mr Dooley. I do not know what for, I did not find that out. But it says here, "We have been telephoned by the associate to the judge who presided in your case. She has advised that you have been telephoning the judge's office a number of times." Which is not correct, sorry. "We have been requested to ask you to stop this. Please note that it is possible if you contact the judge or his associate that the judge will consider it necessary for him to disqualify himself in the case. This would mean that the hearing of your case would be wasted and would have to take place again. In our view that would be a disaster. The case went reasonably well in front of the judge and is very likely to be successful."

So I certainly built my hopes up on that one, but I do not really feel that all the facts were taken into consideration, your Honours, I am sorry, and, again, my medical records have been changed, they have been altered, and you can visibly see it. I can show you, if you would care to look at it. They have been altered without a doubt.

I do not know whether it is the right time to mention this but I have a letter here from a Dr Smart that treated me with iron injections and he said that from what he recalled I never, ever had any trouble tolerating iron injections and yet Dr Kidd said that I could not tolerate them, in the District Court, and yet after I came out of hospital I had two letters here that he sent to Dr Marsh saying, "She is continuing to take her iron tablets", and yet he had sat in that court and said that I could not tolerate iron. And there is two letters. If you would have a look at - from Medicare - all the visits to Dr Kidd's surgery, there was numerous, and yet he said I was a defaulter of keeping appointments, which, again, was not true either.

So I guess I would like to show you causation. I would like to show you the damage that I suffer. I thought that is what it was all involved in today, that I had to prove to you that I suffer these things before I can get a full appeal. But certainly, I am asking the Court for leave to appeal on the basis that my medical records have been changed.

I would like to refer, if I could, to the authorities if I may. Rosenberg v Percival, Rogers v Whitaker applied:

The trial judge found that the appellant did not fail to warn the respondent of any material problems that might develop. The trial judge also found that even if the respondent had been warned of the possibility of TMJ complications, she would have proceeded with the surgery in any event. The respondent appealed to the Full Court of the Supreme Court of Western Australia. The Full Court held that the appellant was in breach of his duty of care to the respondent in failing to warn her of the risks of TMJ complications. The Full Court then remitted the matter to the District Court for a new trial before a different judge on the issue of causation.

Rogers v Whitaker per Kirby J.

GLEESON CJ: Yes, your time is up now.

MS McCARTHY: Thank you.

GLEESON CJ: In this matter the applicant seeks special leave to appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales. We have considered the written material put before us by the applicant in support of her application and heard her oral submissions this morning. We are not persuaded that there is any reason to doubt the correctness of the decision of the Court of Appeal and the application is refused with costs.

We will adjourn for a short time to reconstitute.

AT 12.09 PM THE MATTER WAS CONCLUDED