Hirsch, David --- "Important cases in medical negligence" [2019] PrecedentAULA 41; (2019) 153 Precedent 4

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IMPORTANT CASES IN MEDICAL NEGLIGENCE

By David Hirsch

Several cases have been decided in the last year or so that address a wide variety of issues in medical negligence cases. This article is a summary of some of those cases and why they are relevant for practitioners in this area.

STANDARD OF CARE FOR PROFESSIONALS

Evidence of an established practice

Most jurisdictions have similar although not always identical legislation to s5O of the Civil Liability Act 2002 (NSW) which states:

‘(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. [...]’

In Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 the NSW Court of Appeal dismissed the appeal of the defendant anaesthetist from a finding that he negligently failed to call a halt to an operation when the plaintiff’s oxygen saturations and blood pressure indicated that continuing with the procedure posed serious risks to the patient, which materialised. A s5O defence was raised at trial and dismissed.

The Court of Appeal considered whether the s5O defence was available only where there was evidence of ‘a practice’ recognised as competent that had been followed. In the earlier NSW Court of Appeal decision McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 (23 December 2013) Macfarlan JA said evidence of ‘a practice’ was a necessary precondition to enlivening s5O. In that case, his Honour found that the discharge of a patient from a mental health facility where the psychiatrist responsible had not made himself aware or been apprised by hospital staff of the patient’s deterioration was negligent. This conduct did not constitute ‘a practice’ in the management of psychiatric patients.

McKenna was overturned by the High Court on different grounds,^[1] leaving the status of the Court of Appeal’s reasoning somewhat uncertain.

In Hobson, Macfarlan JA followed his own reasoning in McKenna, holding that s5O was not available in the absence of evidence that the defendant anaesthetist’s conduct in failing to stop an operation in the circumstances was ‘a practice’.^[2] Judge of Appeal Basten considered Macfarlan JA’s approach too restrictive.^[3] He found that while evidence of ‘a practice’ is often found, sometimes it is not, and ‘competent professional practice’ was the relevant test of the doctor’s conduct, not whether that conduct conformed to an already established ‘practice’. Judge of Appeal Simpson inclined towards Basten JA’s approach but felt constrained by the Court of Appeal’s decision in McKenna on this point and so, albeit with reluctance, he followed Macfarlan JA.^[4]

Hobson was ripe for review by the High Court which could have provided much-needed guidance. Unfortunately, special leave was refused^[5] on the basis that the case was not an appropriate vehicle, due to its particular facts, to finally consider this important point. We are left with a situation where it appears a defendant may not be able to avail itself of a s5O defence without first establishing that the conduct which is the subject of the alleged negligence was ‘a practice’.

What sets the standard of care?

Courts continue to refer to the High Court decision in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 as stating a doctor’s duty of care. But since the introduction of tort reform, legislation has articulated the test for negligence, albeit in an obtuse way. Section 5B of the Civil Liability Act 2002 (NSW) (CLA) sets out the general principles by stating, in effect, that a person is not negligent unless they failed to take reasonable precautions to avoid the materialisation of a risk of harm that was not insignificant.

In South Western Sydney Local Health District v Gould [2018] NSWCA 69 (13 April 2018), the NSW Court of Appeal allowed an appeal from a finding of negligence where the defendant pleaded a s5O defence.

In that case, the plaintiff’s hand injury was treated at the defendant hospital with two antibiotics. The trial judge considered that in the circumstances there ought to have been a third antibiotic given and that had it been, the infection would have been brought under control and the plaintiff would not have lost his thumb.

The evidence confirmed that there was ‘a practice’ widely held at the time and stated in the Therapeutic Guidelines – Antibiotic that supported the giving of only the two antibiotics that were in fact given in this case. Thus, s5O was properly engaged regardless of whether Macfarlan JA’s ‘narrow’ construction or Basten JA’s ‘wide’ construction as stated in Hobson was correct.

Importantly, once s5O is properly invoked, the ‘standard of care against which the defendant’s conduct is assessed is that which was widely accepted by peer professional opinion as competent professional practice, unless the court considers that opinion is irrational.’^[6] Accordingly, the general principles of negligence in s5B did not apply.

This underscores the importance of insisting that a defendant who raises a s5O defence properly particularises this and serves expert evidence in support. In Hobson, Simpson JA observed:^[7]

‘[Section] 5O, like s5I, provides a complete answer to a claim under Pt 1A of the CLA. It is in that sense that the section operates as a defence. For that reason, when it is pleaded, it is convenient to deal with it first.’

If s5O ought to be dealt with first, I believe a credible argument could be made that a plaintiff should insist on the defendant serving its liability evidence in support of s5O before having to serve its own evidence on breach of duty. This would be an inversion of the normal course of litigation, and likely strongly resisted, but it is one of the oddities that may be said to arise from the operation of s5O.

INTERROGATORIES

Where interrogatories are not available as of right, and in the absence of consent, an application must be made to court. In New South Wales, Rule 22.1 of the Uniform Civil Procedure Rules (UCPR) governs the availability of interrogatories in personal injury cases. Under that rule, ‘an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order’ and an order for interrogatories is ‘necessary at the time it is made.’

Interrogatories can secure information in medical negligence cases where the plaintiff is not in a position to say what happened – for example, during an operation – and the notes are inadequate. This situation arose in Ahmad v South Western Sydney Local Health District [2018] NSWSC 1327 (30 August 2018).

In Ahmad, the plaintiff alleged negligence in the performance of a laparoscopic cholecystectomy where his common bile duct was transected. The defendant admitted the transection occurred but denied negligence. The operation record did not illuminate what happened.

The plaintiff served interrogatories, some of which were objected to, leading to an application before Davies J. His Honour reviewed a number of cases where the critical issues of necessity and special reasons were discussed.

His Honour noted that for the purposes of UCPR 22.1, necessary at the time it is made means reasonably necessary for the disposing fairly of the cause or matter or necessary in the interests of a fair trial.^[8]

On the issue of special reasons, one simple test is that there needs be something about the case that takes it out of the ordinary course. Examples would include:

‘(a) an inability to obtain the requisite factual material without the exercise of the discretion;

(b) that the applicant is in a position of some disability or disadvantage;

(c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant;

(d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised.’^[9]

In this case the plaintiff sought details of the operation. The defendant, perhaps more from reflex than reflection objected, saying that questions about ‘the steps taken by the principal surgeon in the performance of the procedure do not relate to any matter in issue, is vexatious or oppressive and is unnecessary’.^[10] Justice Davies disagreed and ordered that the questions be answered.

One interesting reason for requiring answers to the interrogatory about the operation details involved s5O of the Civil Liability Act 2002. A s5O defence was pleaded and this requires a defendant to not only assert that what the doctor did was widely accepted as competent practice, but to specify the conduct said to be competent. Justice Davies said:

‘Since there is a defence pleaded in reliance on s5O of the Civil Liability Act 2002 (NSW), I must assume the defendant will lead evidence. The way the operation was performed will have to be disclosed. It is hard to see, in those circumstances, how it is oppressive to do it now.’^[11]

In my experience, s5O defences are not raised as regularly as they once were since defendants have come to realise that the defence must be particularised and not just asserted. Exposing a case to interrogatories may be another reason why a defendant may wish to avoid raising a s5O defence, although it is doubtful that this would be decisive. A plaintiff who is ignorant of the details about a procedure impugned in the pleadings has good grounds to interrogate simply because it would be unfair to expect the plaintiff to proceed to a hearing without knowing the details.

ORDER FOR GENETIC TESTING

McDonald v Dr Ng; McDonald by his tutor v Dr Ng [2018] NSWSC 1050 (11 July 2018) and Wells by his tutor McGuffog v Hunter New England Local Health District [2018] NSWSC 1877 (7 December 2018) considered applications by defendants for orders for genetic testing. In each case, the infant plaintiff alleged that they suffered brain damage due to perinatal events. In each case, proceedings were brought long after birth and both plaintiffs were young adults at the time of these applications. In each case, causation was in dispute and not straightforward. But in each case, had the plaintiff succeeded damages would be very high.

The defendants asserted that the plaintiffs’ alleged brain damage might have a genetic cause and they sought orders pursuant to UCPR 23.4 for medical examinations to explore this. In each case, the plaintiff had already voluntarily submitted to genetic testing which failed to establish any genetic abnormalities. Undaunted, the defendants sought further testing; this time with what they called ‘next generation exome testing’ (exome testing).

There was no compelling evidence in either case that exome testing was likely to show any genetic cause, especially against the background of earlier genetic testing that had failed to find one. It was agreed that such testing was experimental and that even if some abnormality had been found, there would be a vigorous debate about admissibility and whether that abnormality could be linked to the plaintiffs’ conditions. As a practical matter, a positive finding from exome testing was not going to end the causation dispute, only escalate it. Predictably, the plaintiffs argued that these were mere fishing expeditions and it was not in the interests of a quick resolution to the claims to permit this kind of exploration.

In McDonald, Harrison AsJ ordered the exome testing. Not only did the plaintiff have to submit blood samples for this, but so did his mother (his father could not be located). In Wells, the plaintiff was also ordered to submit to exome testing, but his mother was not. Justice Johnson accepted that UCPR 23.4 could not apply to anyone other than the injured plaintiff.^[12]

These cases show that the threshold of evidence justifying an order for a medical examination is very low. All that was needed was ‘sufficient evidence that the proposed testing has the capacity to throw light on the issue in the proceedings’.^[13]

Given that genetics is implicated in virtually every medical condition, ability and disability – including cancer, intelligence and depression – we will probably see more applications for exome testing of children (if not their parents) by defendants hunting for primary or contributing causes for a plaintiff’s claimed injuries and disabilities.

EXTENSION OF TIME

In Hunt and Numurkah District Health Service v Holcombe [2018] VSCA 248 (27 September 2018), the defendant hospital appealed from a decision of a single judge of the Supreme Court that allowed an appeal from the Associate Justice dismissing the plaintiff’s application for an extension of time to commence proceedings. The Court of Appeal dismissed the appeal, upholding the extension of time. The case is instructive because of the reasons given by the plaintiff for not commencing legal proceedings sooner.

The case involved vein stripping surgery in 2001 when the plaintiff was 26 years old. There were complications following this, which the plaintiff resolved to put up with. In 2006 he was informed that the procedure ought not to have been done in the first place. Despite this clear medical opinion on negligence the plaintiff did not consult a lawyer although he had seen lawyers for other reasons and certainly did not lack the capacity to seek legal advice. It was not until 2016, when the plaintiff had developed worsening cellulitis, that he was told of the connection between the 2001 surgery and the cellulitis. It was only then, some 15 years after the surgery and 10 years after being told of the negligence, that the plaintiff sought legal advice.

At that point his solicitors moved quickly to obtain expert advice and commence proceedings. Obviously, an application for an extension of time was necessary. The applicable section was s27K of the Limitation of Actions Act 1958 (Vic) which allows a court in the exercise of discretion to allow an extension if it is just and reasonable to do so having regard to all of the circumstances of the case.

According to the plaintiff’s unchallenged affidavit evidence, one reason for not seeing a lawyer about suing the hospital was that he ‘had been told that a person could never win in a claim against a doctor because of the “old boys’ network”, so that no doctor would give adverse evidence against another doctor.’^[14]

The Associate Justice accepted the plaintiff was a witness of truth but dismissed the application for extension of time, having regard to the long delay and the presumptive prejudice to the defence. However, no actual prejudice was found that would have prevented a fair trial. This was decisive in the appeal to the single judge of the court who considered that, in all the circumstances, an extension of time should be granted. The Court of Appeal agreed, saying:

‘... an examination of the reasonableness of an explanation for a delay, in issuing proceedings, must involve an appreciation and analysis of the personal factors that affect the particular applicant’s decision not to issue proceedings earlier. The question of the reasonableness of an explanation for a delay, in any case, must depend on a number of factors that include the personal characteristics, knowledge and background of the particular applicant in question.’^[15]

This case provides a useful discussion about the factors involved in extension of time applications and principles of appeal. It is interesting to those of us who have heard the excuse that the explanation for not getting legal advice earlier was that ‘a person could never win in a claim against a doctor because of the “old boys’ network”.’ In Hunt this was accepted as a valid excuse; not for the truth of it, of course, but for the reasonableness of the honest belief.

ADVISING OF A DOCTOR’S LACK OF EXPERIENCE

Does a doctor have a duty to inform a patient of their inexperience in performing a procedure? Ever since Mrs Hart said that if warned of the risk of mediastinitis she would have avoided surgery under Dr Chappel and opted for a more experienced surgeon,^[16] doctors have been concerned about whether this level of disclosure is necessary. It can be.

In Jambrovic v Day [2017] NSWSC 1468 (27 October 2017), the plaintiff agreed to undergo a transnasal endoscopic removal of a skull base meningioma. He had been told by Dr Day that this was the best option for his condition. In fact, a conservative wait-and-see approach would, according to the expert evidence, have been preferable so the advice about the surgery itself was negligent. More importantly, Dr Day had not told the plaintiff that despite his experience as a neurosurgeon, he had never performed a transnasal endoscopic removal of a skull base meningioma before.

The evidence supported the conclusion that while what happened to the plaintiff was a recognised risk, that complication occurred less frequently with experienced surgeons. Dr Day had not undertaken advanced fellowship training in endoscopic surgery on such a skull-based tumour, had not observed such surgery live, and nor had he performed a number of cases of intermediate complexity.^[17] Further, the experts said that Dr Day ought to have disclosed his lack of experience. This is interesting because in cases of negligent failure to advise of material risks, expert opinion is not necessary and not even relevant.^[18]

Practitioners should be alert to the possibility that a doctor’s relative inexperience can be relevant to a poor outcome. Consideration should be given to pleading lack of experience and a failure to advise of this.

CONCLUSION

Medical litigation continues to produce cases that refine legal principle and statutory interpretation. The cases discussed demonstrate some of the variety in recent decisions that practitioners should bear in mind in assessing medical negligence claims.

David Hirsch is a barrister at Second Floor Selborne Chambers, Sydney. PHONE [phone] EMAIL [e-mail].

The author acknowledges and thanks barrister Ngaire Watson for her assistance in researching this article.

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^[1] Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44 (12 November 2014).

^[2] Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 (Hobson), [221]-[223].

^[3] Ibid, [31]-[35].

^[4] Ibid, [332].

^[5] On 14 September 2018.

^[6] South Western Sydney Local Health District v Gould [2018] NSWCA 69 (13 April 2018), [123] per Leeming J with whom Basten and Meagher JJA agreed. See discussion at [123]-[126] where the opinions of Basten JA and Simpson JA in Hobson are discussed. There was a long discussion about the ‘irrationality’ exception in s5O(2) but it is doubtful that this will arise frequently in practice.

^[7] Hobson, [329].

^[8] Ahmad v South Western Sydney Local Health District [2018] NSWSC 1327 (30 August 2018), see discussion at [14].

^[9] Ibid, [13] citing Garling J in Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498.

^[10] Ibid, [27].

^[11] Ibid, [29].

^[12] Wells by his tutor McGuffog v Hunter New England Local Health District [2018] NSWSC 1877, [114] following Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59 (20 March 2009), [79]-[80] per Basten JA.

^[13] Adopting Bellew J in Hamilton v State of New South Wales [2013] NSWSC 1437, [51].

^[14] Hunt and Numurkah District Health Service v Holcombe [2018] VSCA 248 (27 September 2018), [15].

^[15] Ibid, [58].

^[16] Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).

^[17] Jambrovic v Day [2017] NSWSC 1468 (27 October 2017), [113]-[117].

^[18] Section 5P of the Civil Liability Act 2002 (NSW) provides that s5O, which affords a defence where a doctor can show that their conduct conformed to competent professional practice, does not apply to cases involving failure to warn of risks.