Professional Liability Guide

CHAPTER 3 – DEFENCES

McMurdo J found that, in light of the symptoms presented to the defendant doctor, the defendant had acted in accordance with peer professional opinion when performing the original endoscopy. 250 The defendant, however, was ultimately found liable because the report he provided to the treating doctor was deficient as it represented that the endoscopy had confirmed that the plaintiff’s symptoms were caused by untreated coeliac disease and made no mention of the partial nature of the investigation. 251 The Court determined that the report was a causative factor in the plaintiff’s cancer remaining undiagnosed because it created the impression that no further medical investigation was needed. 252 In Makaroff v Nepean Blue Mountains Local Health District, 253 the plaintiff suffered a dislocated right shoulder and a bite wound on her right forearm because of an incident involving one of her horses. The plaintiff underwent surgery at the hospital before being discharged into her general practitioner’s care. The plaintiff alleged that her general practitioner and the hospital breached their duty of care by failing to advise her of the urgency of an orthopaedic review or radiological examination. As a result, the plaintiff did not undergo an ultrasound examination of her shoulder until almost two weeks after her discharge from hospital, when her shoulder injury was beyond surgical repair. At first instance, the New South Wales Supreme Court rejected the plaintiff’s claims, finding that both the hospital and her general practitioner acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice, under section 5O of the Civil Liability Act 2002 (NSW). On appeal, the Court of Appeal remained of the view that the general practitioner had acted in accordance with peer professional opinion. However, it found the hospital had breached its duty of care because it failed to inform the plaintiff of the ‘essentiality’ and ‘urgency’ of undergoing an orthopaedic review following her discharge. On that basis, it did not act in a manner widely accepted in Australia by peer professional opinion as competent professional practice. For completeness, the Court also considered whether a health service, rather than an individual health professional, can rely on ‘widely accepted practice’ in defending a claim. In this regard, the Court considered it was ‘ difficult to see ’ how a corporate health service is ‘ a person practising a profession ’ such that section 5PB could apply. 254 For that reason, while a health service may still be vicariously liable for the acts of the health professionals it employs, it appears unlikely it would be permitted to rely on the same provision that might enable the employee to avoid liability (if acting in a manner widely accepted as competent professional practice). In Child and Adolescent Health Service v Mabior by next friend Kelei, 255 the medical staff and hospital treating a young plaintiff for burns were found to have breached their duty of care by failing to identify her sepsis and administer antibiotics promptly, causing the plaintiff to develop acute respiratory distress syndrome (ARDS). The hospital appealed the decision on the basis that the trial judge had relied on evidence by physicians who were not peers for the purpose of section 5PB of the Civil Liability Act 2002 (WA). They were not ‘ doctors in the PMH burns ward ’ but intensivists and infection disease experts. The Western Australia Court of Appeal found there was no error in the trial judge’s decision. While the physicians were not explicitly classified as ‘peers’ in the first instance decision, it was open to the trial judge to find that all the relevant experts were persons generally responsible for assessing similar signs and symptoms and so could give relevant evidence.

250 Ibid [29]. 251 Ibid [42]–[44]. 252 Ibid [47]–[48]. 253 [2021] NSWCA 107. 254 Ibid [237]. 255 (2019) 55 WAR 208.

45

© Carter Newell 2023