SEPTEMBER 2008

IN THIS ISSUE

Please Select an Article to Read

• Australian Law Reform Commission’s Privacy Report – Health Update
• Special Commission of Inquiry into NSW Public Hospitals releases its First Report
• Pharmacists and Franchising
• Accessing funds in the current market environment
• Aged Care Update
• Amendments to the NSW Medical Practice Act introduce compulsory reporting of doctors for sexual misconduct, substance abuse and incompetent clinical practice
• Case note: Peer evidence as to competent medical practice
• Proposed changes to general requirements for labelling of medicines
• Windfall for Medical Insurers in Medical Malpractice Cases
• Protecting Root Cause Analysis in NSW private health facilities
• Case Note: Court Of Appeal reversal on Domestic Assistance Threshold under Civil Liability Act
• New procedures for Medical Negligence Claims in the NSW Supreme Court
• IVF Donors to lose anonymity under new legislation in New South Wales

 

Case note: Peer evidence as to competent medical practice

New South Wales Supreme Court, Court of Appeal - 26 November 2007
Dobler v Halverson & ors

How is rational peer professional practice defined? Is section 5O of the Civil Liability Act 2002 (NSW) the standard of care or a defence? The New South Wales Court of Appeal considered these questions in a doctor’s appeal from a first-instance loss-of-a-chance decision.

Facts

Mr Kurt Halverson sustained severe hypoxic brain damage following a cardiac arrest at age 18 – he was then diagnosed with long QT syndrome (LQTS). Mr Halverson claimed his general practitioner (the “doctor”) was negligent because he failed to refer him for an ECG after episodes of syncope (i.e. brief loss of consciousness), caused by LQTS, and that he would have been diagnosed and treated if an ECG had been performed. In December 2006, McClellan J (the trial judge) found in favour of the Halverson family.

Damages were agreed between the parties, prior to the decision, in the amounts of $8,086,000 for Mr Halverson, $550,000 for his father, $150,000 for his mother, and $11,500 for his sister. 

The doctor filed an appeal against the findings and sought a re-hearing. The doctor submitted that the trial judge erred in his application of section 5O of the Civil Liability Act, his preference of the plaintiffs’ expert evidence, and in determining causation.

Decision

The appeal was unanimously dismissed. The lead judgment was written by Giles JA.

Section 5O of the Civil Liability Act

Section 5O provides that liability in negligence is not incurred by a professional, if at the time the professional service was provided, the professional acted in a manner widely accepted by peer professional opinion as competent medical practice that is in no way irrational.

Until this decision it was assumed section 5O set out the “test” for the relevant standard of care (competent peer professional practice) and therefore liability. It was not considered to operate as a defence.

The Court considered the origins of section 5O in addressing the appeal, beginning with the Bolam principle that “where a doctor acts in accordance with a practice accepted by a responsible body of medical opinion, even though there may be varying practices, a doctor is not negligent”.

Australian courts did not fully endorse Bolam, and in the Bolitho decision a modified version of the Bolam principle was developed. Bolitho clarified that it was not for professional bodies or peers to determine the standard of care, but for the Court, with reference to the guidance of professional bodies and peers. In addition, it fell to the Court to determine if any practice or standard of care was, in fact, rational. The High Court decision in Rogers v Whittaker affirmed Bolitho.

These common law decisions are relevant, as section 5O, on the Ipp Committee’s recommendation, codified the Bolam principle and incorporated aspects of Bolitho and Rogers v Whittaker.

The doctor’s submission that section 5O did not operate as a defence but merely set out the standard of care, was rejected. Giles JA stated that:

section 5O may end up operating so as to determine the defendant’s standard of care, but the standard of care would be determined by the Court with guidance from evidence of acceptable professional practice.

Based on the standard of care found by the Court, “unless it is established by the defendant that he/she had acted in accordance with widely accepted, rational, peer professional practice” he/she will have been negligent. The standard of care is established by the Court, not the plaintiff. It is for the plaintiff to show that the defendant’s conduct was below that standard (and therefore negligent). Section 5O then gives the defendant the opportunity to rely on rational peer professional practice to negate an allegation that his/her conduct was below the standard. As section 5O operates in this manner, it is a defence.

Giles JA indicated that if section 5O was not a defence, the absurd result would be that the plaintiff would need to identify and negate professional practices favourable to the defendant.

It was also submitted that the trial judge made an error of law by taking a narrow view of competent professional practice. Giles JA stated that the submission mistook the trial judge’s reasons, as “it must be asked whether the manner [in which the professional acted] was widely accepted by peer professional opinion as competent practice”. As the trial judge was answering this question, and not defining professional practice, the submission was rejected. It is relevant to note that the opinion of all the defendants’ experts was resoundingly rejected. It was found, at first instance, and confirmed on appeal, that their opinions arose from inappropriate factual assumptions that had been provided to each.

Causation – Loss of chance

The doctor also appealed on the basis that the trial judge failed to use commonsense, and the evidence as a whole, to determine causation. Giles JA noted that the trial judge contrasted the difficulties between legal responsibility and scientific certainty. He confirmed the standard of legal proof was appropriate. Referring to the trial judge’s finding that there was a 65 per cent chance of diagnosing Mr Halverson’s condition and avoiding damage, Giles JA affirmed that causation had been determined on the balance of probabilities, which was appropriate in this case.

Implications

This decision confirms that the professional standard of care as identified in section 5O of the Civil Liability Act can only operate as a defence. It was previously thought that a return to a modified Bolam standard of care narrowed the opportunities where a professional’s standard of care would be found negligent. Now that it is known to be a defence, the strength of the test is weakened. This decision has arguably returned to the broader assessments of professional liability, akin to Bolam and Bolitho.

Defendants should focus on establishing that they acted in accordance with rational peer professional practice, recognising that this is a defence, and should plead section 5O in any defence prepared.

In cases where there is a lost chance, the standard of proof is “on the balance of probabilities”, where scientific certainty is not possible. It is for the Court to determine, on the balance of probabilities, the chance, its value, and its loss.

Written by Kerrie Chambers, Partner & Lorinda Hokin, Solicitor