KL v DR
| Jurisdiction | Bermuda |
| Judge | Mussenden J |
| Judgment Date | 13 May 2021 |
| Docket Number | CIVIL JURISDICTION |
| Court | Supreme Court (Bermuda) |
[2021] SC (Bda) 37 Civ
In The Supreme Court of Bermuda
Mussenden J
CIVIL JURISDICTION
2015: No. 166
Paul Harshaw, Canterbury Law Limited, for the Plaintiff
Michael Scott, Browne Scott, for the Defendant
Application to set aside judgment in default of appearance; substituted service; Judgment Enforcement Proceedings in New York, Indemnity Costs
This matter came before me as follows:
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a. A Summons dated 20 February 2020 in which the Defendant applies:
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i. To set aside the Amended Judgment in Default of Appearance 1 dated 6 July 2016 entered against him;
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ii. To Stay the Certified Amended Judgment in Default of Appearance dated 6 July 2016 and the Certificate of Assessment of Damages dated 2 2 Nov [ sic] in the amount of $172,487.53 together with the Certification of the Chief Justice as filed with the New York County Clerk, in the USA on 11 August 2017 ( “the New York Proceedings”); and
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iii. For an Order that the Defendant be at liberty to file a Defence within 14 Days of a Ruling in order to defend the action.
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iv. The Summons is supported by the First Affidavit of DR sworn but undated (possibly sworn on 3 January 2020 3) and filed on 26 January 2020 along with Exhibits “ 1” and “ 2” and the First (Rejoinder) Affidavit of DR sworn on or about 12 February 2021.
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b. A Summons dated 25 February 2021 for an urgent application for an order that the ongoing enforcement steps in the foreign Court of New York, USA be stayed as “originally directed” by the Supreme Court of Bermuda on 13 August 2020. (“ Urgent Application”) That Summons is supported by the Urgent Affidavit of DR sworn 12 February 2021 along with Exhibits “ 1”–“ 5”.
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c. An Amended Summons dated 19 March 2021 was filed which deleted the application for a stay of the New York Proceedings. Consequentially, the Amended Summons also negated the need to hear the Urgent Application. I will discuss this amendment below as Counsel for the Plaintiff has applied for costs on an indemnity
basis for his wasted costs in respect of the New York Proceedings. This Amended Summons was supported by the Second Affidavit of Counsel Michael Scott sworn on 15 March 2021.
The Plaintiff is a female Bermudian and resident of Bermuda. From in or about January 2009 through May 2013 she was a patient of the Defendant. The Plaintiff relies on her Second Affidavit sworn on 2 September 2020 in objection to the Defendant's application to set aside judgment and in that Second Affidavit she makes detail reference to her First Affidavit sworn on 1 July 2016.
The Defendant was at all material times an American independent surgeon with a specialty in plastic and reconstructive surgery and held himself out to be an experienced, skilled and competent plastic and reconstructive surgeon. He further held himself out as an MD, Msc, FACS, Board certified Plastic and Reconstructive Surgeon, licenced to practice in California, New York and Bermuda, certified by the American Board of Plastic Surgery and a Fellow of the American College of Surgeons.
At all material times the Defendant had Hospital Privileges at the King Edward VII Memorial Hospital (“ KEMH”), Paget, Bermuda, which permitted him to arrange for patients to be admitted to KEMH for the purpose of undergoing surgery. The Defendant is a former resident of Bermuda and ceased to be a resident in Bermuda in or around 2013/2014. Since in or round June 2015, he has been a resident of Manhattan, New York, USA where he continues to practice plastic and reconstructive surgery in Manhattan.
The Amended Statement of Claim (“ ASOC”) sets out the medical events, some of which are as set out below.
On or around 6 January 2009 the Plaintiff entered into a written contract with the Defendant entitled “Cosmetic Fee Arrangement” whereby the Defendant agreed to carry out the following surgical procedures on the Plaintiff at a quoted fee rate of $8,700: breast augmentation, breast implants, liposuction of axillae, mini tummy tuck and liposuction of abdomen.
On 5 February 2009, prior to the scheduled date for surgery and in consideration of the Defendant's promised services, the Plaintiff paid to the Defendant in or around the amount of $11,700 as demanded by the Defendant.
On 30 March 2009, the Plaintiff had her scheduled surgery at KEMH. She had some post-operative medical complaints and on 1 April 2009 she was discharged from KEMH. On 9 April 2009 she had a follow-up visit with the Defendant. During the following months the Plaintiff's breasts healed but with severe disfiguration. The Plaintiff complains her marriage started to breakdown by June 2009 due to the appearance of her breasts, between 2009–2013 she lived in a depressed state with emotional and psychological distress and sought counselling.
After further consultation with the Defendant, the Plaintiff requested that the breast implants be removed. On 21 May 2013 the Defendant performed the removal operation in his office under a local anaesthetic. After the second surgery, the Plaintiff incurred infection, the scarring and breast deformity remained and she still had no nipples.
During the period April 2015 to January 2016 the Plaintiff was treated by Dr. Joseph M. Serletti, MD (“ Dr. Serletti”), Chief of Division of Plastic Surgery at the University of Pennsylvania in Philadelphia, USA, who performed corrective surgery for raising the breasts, correcting the periareolar scarring, ptosis and contour irregularities, nipple areola reconstruction and nipple tattooing. Dr. Serletti has provided two medical reports as exhibited in the Plaintiff's Affidavits.
On 24 April 2015 the Plaintiff filed a Writ of Summons seeking damages against the Defendant for personal injuries sustained in or about March 2009. On 22 March 2016 the Plaintiff filed a Statement of Claim. The Defendant had left Bermuda by this time and leave was granted to serve him out of the jurisdiction. Notice of the action was served on the Defendant but he took no action. On 13 May 2016 judgment was entered against the Defendant with damages to be assessed. A notice for the assessment of damages was sent to the Defendant and again he took no action.
On 6 July 2016, the ASOC was filed.
On 28 September 2016 damages were assessed in the amount of $172,487.53. Thereafter, the Bermuda judgment was made a judgment of the Supreme Court of the State of New York and proceedings were taken to enforce judgment.
On 24 January 2020 the Defendant applied to this Court to set aside judgment made against him on 13 May 2016. The application was supported by an undated affidavit of the Defendant. The application was due to be heard on 19 March 2020 but the Covid-19 pandemic caused delays, and at the rescheduled hearing on 13 August 2020, the Chief Justice gave direction to set the matter down including for agreed dates to be submitted. There were several rounds of communication between counsel to secure agreed dates.
On 25 February 2021 the Defendant applied by Summons for a hearing for the Urgent Application for an order that the New York Court be stayed “ as originally directed by the Supreme Court of Bermuda on 13 August 2020 4”.
On 2 March 2021 counsel appeared before me for the substantive hearings. I informed Counsel that it was to be a Directions hearing and I gave directions that the substantive application to set aside would be heard on 23 March 2021 and if necessary, the Urgent Application would be heard on 30 March 2021.
On 19 March 2021, an Amended Summons was filed which deleted the application for a stay of the New York Proceedings. In any event, the substantive application to set aside judgment was heard on 23 and 30 March 2021.
Counsel for the Defendant Mr. Scott submits that judgment in default of appearance should be set aside for several reasons.
First, Mr. Scott submits that the proceedings were not served correctly. In the Defendant's First Affidavit he states that in or around 6 July 2016 by way of substituted service, eleven (11) pleadings in this matter were served to both his medical practice Facebook and by registered mail to his published website by email. However, he states that at no time did his staff who exclusively manage his medical practice Facebook draw the pleadings to his attention. Mr. Scott relies on these facts to show that service was not proper.
Mr. Scott also states that the Plaintiff never submitted a complaint of malpractice or the legal proceedings to the Defendant's malpractice insurer who would have conducted a thorough investigation into the matter.
Second, Mr. Scott submits that the Defendant has a meritorious defence to the matters alleged in the ASOC. In both the First Affidavit of the Defendant and his First (Rejoinder) Affidavit he states that the draft Defence that he filed shows a defence of merit which discloses arguable triable issues on the question of whether or not his professional care of the patient Plaintiff was negligent or otherwise fell below the standard of care of a reasonable and competent plastic surgeon. Mr. Scott submits that the Defendant can demonstrate that he has a real prospect of success in establishing a defence based on the following factors: (a) the Plaintiff presented to him with terrible prior implants (this assertion is out-rightly denied by the Plaintiff as she states that the Defendant did the original breast implants); (b) the Plaintiff's expert's report has material omissions to facts which undermine his opinion that the Defendant fell below the required standard of care; (c) The Defendant explained the medical risks to the Plaintiff and she signed a Risk...
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