The emerging differences in proving medical negligence across Australia.
Some differences across the states may soon start to appear in relation to how the courts determine whether a health professional has been negligent and what injured patients need to prove to obtain such a finding. This is because of subtle differences in tort reform legislation across the states.
The differences arise from the varying legislation that was enacted after the September 2002 Review of Law of Negligence, Final Report1. The report recommended the law be changed so that:
A medical practitioner is not negligent if the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the field.2
The explanation for the recommendation was:
The recommended rule recognises, first, that there might be more than one opinion widely held by a significant number of medical practitioners in the field. It provides a defence for any medical practitioner whose treatment is supported by any such an opinion, provided the court does not consider it irrational. It would not be for the court to adjudicate between the opinions.
With the exception of the Australian Capital Territory and Northern Territory, all Australian jurisdictions enacted legislation purporting to give effect to the recommendation.
However, subtle differences in the Acts in each state may mean that there will be a major distinction in the way medical negligence cases are tried and determined around the country.
The first superior court decision in the post-reform period3 considered the law in New South Wales. The court did not consider there had been a radical change in the standard of care to be applied in medical negligence cases in NSW, and that the Civil Liability Act 2002 (NSW) merely provided a defence to the health professional if he or she could prove that he acted in a manner that was widely accepted by peer professional opinion as competent processional practice. In other words, a health professional could technically breach his or her duty of care, but not actually be liable to the injured patient. As a result, in NSW, a case will be run by considering the following sequential issues:
- Did the defendant act in accordance with the standard of care imposed by the common law? This standard is determined by the court with guidance from expert evidence of acceptable medical practice.
- If the defendant did not act in accordance with the court determined standard of care, did he or she nonetheless still act in a manner that was widely accepted by peer professional opinion as competent professional practice? The defendant carries the burden of proof on this issue.
- Is the widely accepted peer professional opinion, relied on by the defendant, 'irrational' and therefore not able to form a defence?
The significance of this for plaintiffs in NSW is that they do not have to adduce expert evidence that the defendant acted in a way that was not widely accepted by peer professional opinion as competent professional practice. This is because, in NSW, the defendant has to prove the 'peer professional opinion' issue by way of a defence. As a result, plaintiffs in NSW do not have to change the questions they ask their expert witnesses in order to obtain an opinion to make out a case of negligence on its face.
South Australia's Civil Liability Act 1936 has a similar provision to NSW. However, the other Australian states have a subtle but significant difference in the way they attempted to enact the Review's recommendation. Rather than using the NSW language of:
'...[a health professional] does not incur a liability in negligence ... if ... [he or she] acted in a manner that ... was widely accepted ... by peer professional opinion as competent professional practice',
the Civil Liability Acts in the remaining states provide that the health professional 'is not negligent' or 'does not breach' his or her duty of care if he or she acted in a manner widely accepted by his or her peers. This may be interpreted by the courts in those states as actually changing the standard of care owed by a health professional to a patient (unlike in NSW), and therefore requiring a plaintiff to prove that the defendant did not act in a way that was widely accepted by peer professional opinion as competent professional practice.
The prospect of the courts in Western Australia taking this view is particularly strong, given the Civil Liability Act 2002 (WA) specifically states:
The plaintiff always bears the onus of proving ... that the applicable standard of care (whether under this section or any other law) was breached by the defendant. [emphasis added]
In view of this, lawyers and professional indemnity insurers need to consider carefully the differences between each state's law reforms and not rush to assume that, just because each state purported to adopt the Review's recommendation, that the position in each state is substantially the same. While the ultimate outcome of the case may be the same regardless of the state in which the case is run, the burden of proof and (and, particularly, the content of the plaintiff's expert evidence) may well vary substantially from jurisdiction to jurisdiction. Health care providers with multi-jurisdictional operations should particularly bear this in mind.
1. See http://revofneg.treasury.gov.au/content.review2.asp
2. Recommendation 3.
3. Dobler v Halverson  NSWCA 335
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