Health professional negligence claims - proving peer professional opinion. Back in 1992, there was much indignation amongst the medical profession when the High Court pronounced in Rogers v Whitaker1 that judges could impose their own views as to what was negligent medical practice, describing evidence of accepted medical practice as 'a useful guide only'. How was a doctor to know what standard of care would satisfy a court in any particular circumstance if peer practice was not the yardstick? This reversed the previous adoption by Australian courts of the so-called Bolam principle which provided that a doctor isn't negligent if they act in accordance with practice accepted by a reasonable body of medical opinion even though other doctors adopted a different practice2. For obvious reasons, the medical profession was concerned that Bolam was no longer the yardstick and judges were free to impose their own views.
Professionals in the building and planning industries faced similar issues in that courts considered building codes and regulations to be minimum standards only and that in some circumstances, complying with the codes and regulations might still be negligent.
Fast forward through the doctors' medical indemnity crisis, the HIH collapse and tort reform and the position looks a little different, though perhaps not as different as you would expect. As part of tort reform legislation, all Australian States (but not the Territories) have introduced what is being called a modified Bolam test.
In NSW, the relevant section is section 5 O of the Civil Liability Act 20023 which provides:
1. A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
2. However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
3. The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
4. Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Section 5 O does not apply to failure to warn cases. As Rogers v Whitaker was a failure to warn case, it would be decided in the same way today, regardless of tort reform.
This article examines three recent cases which considered the application of section 5 O.
Walker v Swsahs4
The first decision involved the tragic case of a young person who had been treated for serious psychiatric and/ or psychological symptoms. After a suicide attempt he was taken to Nepean Hospital. He was discharged a week later. Some 11 days later, he consumed a (disputed) amount of alcohol, climbed a tree and fell. His spinal injuries resulted in quadriplegia.
The case largely revolved around the treatment provided to the plaintiff with the issues, including whether he should have been discharged from hospital or involuntarily detained, whether he should have been medicated and whether the treatment he obtained during his hospitalisation was adequate. As such, the court focused on the appropriateness or otherwise of the standard of care and treatment provided to the plaintiff. It inevitably became a battle of the experts.
In finding in favour of the doctors and staff at Nepean Hospital, the judge found that they 'acted in accordance with practice that was widely accepted in Australia by a peer professional opinion as competent professional practice'. The judge went on to say that:
'It is insufficient to say, as (the Plaintiff's expert) did, that he would have made different decisions. It is, particularly, insufficient to say, on the basis of after-acquired intelligence, that a particular combination of medications ought then to have been prescribed for the plaintiff.'
In my view, the judge would have found in favour of the defendant whether or not section 5 O had been enacted.
Dobler v Halverson 5
A Court of Appeal decision late last year concerned an allegation that a general practitioner was in breach of his duty of care in failing to refer the plaintiff for an ECG or to a cardiologist. After a number of episodes in which the plaintiff lost consciousness (syncope), he suffered cardiac arrest and hypoxic brain damage. He was left with catastrophic injuries.
Despite expert evidence by three general practitioners called by the GP, the trial judge found that the GP did not act in a manner widely accepted by peer professional opinion.
The trial judge recognised that, despite the division of opinion amongst the general practitioners, the GP could 'rely upon the opinion of experts favourable to him, if that opinion is widely held' (section 5 O(3)). However, the experts favourable to the GP did not persuade the trial judge that their opinion was in fact widely held. Various reasons were given for this, including the assumptions upon which those experts based their opinions and the answers produced in an experts' conclave. Although the Court of Appeal found the reasons obscure, it could find no error in the trial judge's reasoning.
Another aspect of the case worthy of comment is that it puts an end to any speculation as to where the burden falls in respect of section 5 O. Some have argued that the onus is on the plaintiff to prove that the manner in which the professional has acted was not widely accepted by peer professional opinion as competent professional practice. The Court rejected that proposition, finding that the section should act as a defence whereby the professional, if found to have failed to exercise reasonable care and skill could avoid liability (subject to rationality) if they established, using expert evidence, that they acted according to widely accepted peer professional opinion.
For legal practitioners, this means that reliance on section 5 O should be pleaded in a defence.
Vella v Permanent6
One aspect of this lending transaction case involved solicitors' negligence. The judge thought that 'the evidence shows that on the balance of probabilities (the solicitors) may well have breached their duty of care to their client'. He then went on to consider whether, in light of that finding, the solicitors could escape liability by virtue of section 5 O. It was submitted in the case that the solicitors called evidence that they acted according to widely accepted peer professional opinion. However, the judge found that the expert evidence did not necessarily lead to the view that the solicitors complied with peer professional practice in this instance.
The point of section 5 O was to prevent courts imposing impossibly high standards on professionals when their actions were in accordance with accepted practice. Although I believe that the outcomes of these cases would probably be the same with or without section 5 O, I'm not suggesting that the courts are circumventing the provisions. It's just that the bar is high for professionals seeking to establish what accepted peer professional practice is in any given sphere.
1. (1992) 175 CLR 479.
2. Bolam v Friern Hospital Management Committee (1957) 1 WLR 582.
3. Equivalent provisions in other states - Victoria Wrongs Act 1958 section 59; Queensland Civil Liability Act 2005 section 22; Tasmania Civil Liability Act section 22; Western Australia Civil Liability Act 2002 section 5PB; South Australia Civil Liability Act 1936 section 41.
4. Walker v Sydney West Area Health Service  NSWSC 526.
5. Dobler v Kenneth Halverson & Ors; Dobler v Kurt Halverson (by his tutor)  NSW CA 335 (26 November 2007).
6. Vella v Permanent Mortgages Pty Ltd  NSWSC 505.
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