Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

The Queensland Court of Appeal in Mules v Ferguson 242 also adopted this focus on the circumstances confronting the professional. The matter involved a claim against a doctor arising from the doctor’s failure to diagnose cryptococcal meningitis, a disease that left the plaintiff blind, deaf and with other grievous disabilities. The plaintiff brought an action in negligence against Dr Ferguson, claiming that the doctor did not examine the plaintiff properly or make proper enquiries about the plaintiff’s reported symptoms to exclude cryptococcal meningitis. The plaintiff contended that had the defendant acted competently, she would have referred the plaintiff for tests and treatment, and the disease would have been diagnosed and treated before the plaintiff suffered her grievous injuries. At first instance, Henry J assessed the plaintiff’s damages at $6.7 million but dismissed her claim. Although his Honour found that the defendant failed to act with reasonable care and skill in not adequately physically examining the plaintiff and enquiring about the progress of her previously recorded symptoms, he concluded that that breach did not cause the plaintiff’s injuries. An adequate examination and further enquiries would not have detected anything to prompt the defendant, exercising reasonable care, to respond differently. The Court concluded that the defendant provided competent and comprehensive care of a standard expected of a general practitioner and that (under section 22 of the Civil Liability Act 2003 (Qld)) the defendant acted in a way widely accepted by a significant number of respected practitioners in the field as competent professional practice. 243 In considering the application of section 22, the Court of Appeal said the defence needed to identify the particular conduct (i.e. how the professional, in fact, acted) and the peer opinion supporting that conduct as widely accepted practice. 244 The onus rested on the professional to satisfy that defence. 245 The Court concluded that the evidence established that the defendant, in failing to conduct a physical examination of the plaintiff when she presented with those symptoms, 246 did not act in a way widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. 247 The Court said the trial judge was in error in relying on expert opinion that was not based (as the trial judge had found) on the plaintiff’s symptoms. Therefore, there was no evidence satisfying the trial judge that the defendant had discharged her evidential onus. 248 The plaintiff was awarded damages of $6.7 million. Section 22 was also considered by the Supreme Court of Queensland in Mazza v Webb . 249 The plaintiff (who was suffering from abdominal symptoms) underwent an endoscopy conducted by the defendant. During the procedure, the endoscope was passed only part-way into the plaintiff’s duodenum. The defendant determined that the plaintiff’s symptoms were the result of uncontrolled coeliac disease and wrote a report to the treating general practitioner to that effect. The plaintiff’s condition continued to deteriorate for a further 15 months when a subsequent endoscopy (performed by a different specialist) revealed advanced bowel cancer. The plaintiff appealed the findings with respect to the application of section 22.

242 [2015] QCA 5. 243 Mules v Ferguson [2014] QSC 51 [273]–[276]. 244 Mules v Ferguson [2015] QCA 5 [191]. 245 Ibid.

246 It was concluded that a general practitioner, when presented with a patient complaining of headaches and neck pain, should have undertaken a physical examination and attempted to determine the source of the pain and nature, location and severity of the headaches. The court was of the view that those steps would have resulted in the plaintiff being referred for specialist assessment or to her local hospital for further specialist assessment. 247 Mules v Ferguson [2015] QCA 5 [76]–[89].

248 Ibid [191]–[201]. 249 [2011] QSC 163.

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