Peer Defence: Bolam + the Civil Liability Act - Experiences in Practice

Posted on March 27, 2011 by Julian Johnson

 I read with interest an article in the MJA earlier this month, which comments on the status of the 'peer defence,' introduced, in WA, via the Civil Liability Act section 5PB(1).  This section, provides that:

An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice.

This provision and similar ones in other States was introduced based on a concern (misplaced I have always thought) that Courts were setting standards for doctors which were too high and failing to appreciate real world considerations.

Despite concerns at the time this section was introduced, that it would significantly 'water down' legal expectations of health professionals, years on, I cannot think of a case I have handled since, in which this test, compared with the previous 'reasonable care' as determined by the Courts, would (or has) changed the outcome.  

In my experience, if a claim would succeed under the pre-section 5PB Law, it would succeed now.  If it would fail under the section 5PB Law, it would probably have failed before.  This includes the facts in the Melchior case, referred to in the MJA article.

It is theoretically possible that a Judge may consider care or advice provided by a health professional was not reasonable, despite it being in accordance with accepted practice followed by a significant number of the health professional's colleagues.  Obviously this would be very exceptional.  We all hope (and believe) it is not going to be common for a significant number of doctors, for instance, to be all acting unreasonably in their care or advice they provide to their patients.

Even in such an unlikely scenario, it is unclear whether section 5PB would give a defence.  This is because of sub-section (4), which via a convoluted path, probably says that such defence does not apply if the practice by this group of peers is not reasonable...

Overall, as I have thought for some time, my present view is that section 5PB is/was primarily a reassurance to the medical profession that it will only be in an exceptional case that Judges will find a doctor negligent, when he has followed well-recognised and broadly followed and justified practice in their care.  In my view this was the case before the section was introduced and remains the same.  The section changes perception of the legal position, more than it changes its application in the 'real world.'

fn: it needs to be remembered that such section has no application in relation to the required warnings as to risks associated with treatment.  Peer consistent practice (ie 'none of us tell patients about this risk') is no defence in such context (see s5PB(2)).

Tags: , , , ,

Implanon Litigation Continues

Posted on May 26, 2010 by Julian Johnson

 I was interested to see the recent NSW decision in Hollier v Sutcliffe [2010] NSWSC 279, delivered on 23 April 2010.  

The case concerned alleged side-effects following insertion of an Implanon device in October 2006.

Some years ago, there was a spate of litigation associated with this contraceptive device, primarily related to failures of insertion of the device resulting in unwanted pregnancies.  I am still involved in 1 such case proceeding through the courts.

In this case, the Plaintiff claimed that following insertion she had developed a severe reaction to such device, resulting in diffuse symptoms including leg soreness, pain in her upper limb into which the device was inserted and pain to her armpit.  

Remarkably and a source of difficulty for the Plaintiff at trial, it was clear that although the Plaintiff had seen the GP who had inserted the device, on the day following its insertion (and at that time both she and the GP had palpated the device), she had said nothing about the abnormal symptoms, she claimed to have experienced.  Her explanations why this was, were difficult to understand.

The device was removed with the assistance of a further general practitioner.  Despite initial improvement following this, the Plaintiff claimed that her condition then deteriorated.

Medical expert witnesses gave concurrent evidence ("hot tubbed" as it is known), that if the procedure occurred as the GP alleged, this was appropriate.  On the other hand, if the procedure had been performed as the Plaintiff claimed, involving her forcefully pushing upon the obturator, then this was not appropriate technique. 

In other words, the outcome as to breach of duty depended upon whether the patient or doctor's account of the initial procedure was accepted.

As may have been guessed given the above comments, the trial judge was not persuaded to accept the Plaintiff's evidence.  He found 'the evidence of the Defendant was consistent within itself and consistent with objective independent evidence.  On the other hand, the evidence of the Plaintiff was both internally and externally inconsistent in a number of respects." [115]

Apart from the issue with her explanation for not expressly mentioning her symptoms full extent when seeing the Defendant GP on the day following insertion, as not infrequently occurs, the Plaintiff had problems because of divergence in her account of events provided to subsequent clinicians [118].  This is a point always worthy of careful consideration - it is an obvious line of attack by a defendant in cross-examination.

 

Tags: , , , , ,