Lawyers acting for an allegedly negligent doctor probably misled a court about why vital evidence was not given to a teenage patient infected with a flesh-easting bacteria during knee surgery, a judge has ruled.
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The actions of the solicitors, which may constitute professional misconduct, arose during a medical negligence case against an orthopaedic surgeon and John James Hospital in the ACT Supreme Court.
The patient, a 13-year-old girl, was being treated for a ligament injury to her left knee, and was referred to the surgeon.
He did three operations between May 2000 and May 2002. The last two were needed to deal with complications arising from the first.
Serious complications arose due to a bacterial infection that occurred after the third operation, prompting the claim of negligence.
The streptococcal infection allegedly caused necrotising fasciitis, a rare, fast-spreading flesh-eating disease.
The surgeon and hospital are defending the negligence claim, and the case was due to be heard at trial last month.
TressCox Lawyers, acting for the surgeon, had sourced three expert reports from an infectious diseases expert and microbiologist, Dr Bernie Hudson, in support of their defence.
But Dr Hudson wrote a fourth report in August 2014, in which he expressed a contrary view to his earlier reports.
That, the plaintiff argued, made it in the surgeon's interest not to hand the report over. The patient, hospital, and court were kept in the dark about the fourth report for almost two years.
Last month, one working day before the trial was to start, the surgeon's lawyers handed the report over.
They then tried to characterise it as a simple oversight, rather than a deliberate decision.
"We enclose by way of service Dr Bernie Hudson's report dated 22 August 2014 which has been unfortunately overlooked until now," they wrote.
That prompted concern from the judge, Justice Hilary Penfold.
"I can understand things being overlooked, but it's not so easy to understand how over nearly two years that hasn't come to light."
She then asked: " Despite how vital it was, it somehow never came to light then that your client had a vital report that no one else knew about?"
The patient's lawyers demanded to see communications of the defendant, and his solicitors, counsel, and insurer, to see what they knew about the fourth report and when.
But TressCox attempted to keep the documents secret, claiming legal privilege, which generally requires communications between lawyers and their clients remain confidential.
That forced the matter to come before Associate Justice David Mossop, who was asked late last-month to rule whether legal privilege applied.
Lawyers for the patient, Colquhoun Murphy, argued that the lawyers lost the right to privilege because they had engaged in acts that may expose them to professional misconduct penalties, namely by misleading the plaintiff, the hospital, and the court.
The hospital was never given the report, and emails they received suggested it simply didn't exist.
Associate Justice Mossop found that to be false and misleading.
He also said a letter to the patient's lawyers, in which it was claimed that the report had been "unfortunately overlooked", was "at the least knowingly misleading".
The judge found there was probably a deliberate decision not to serve the report up until at least December 2015.
It was found that the surgeon's lawyers' claims that blamed the oversight on a since-departed lawyer was misleading.
"In making the findings that I have, I have had regard to the seriousness of those findings, both in relation to the privilege otherwise available to the first defendant as well as in relation to the professional conduct of the relevant solicitors," he wrote.
Associate Justice Mossop ordered the plaintiff be given access to the communications of the surgeon's lawyers. He gave seven days from May 4 for TressCox to "consider their position".
