5. Negligence
Learning objectives
• describing the elements necessary for a plaintiff to succeed in an action in negligence against a medical practitioner
• identifying and understanding the standard of practice required of a medical practitioner
• explaining the legal requirements in disclosing risk, or warning a patient of risks prior to obtaining a consent
• understanding the issues of causation
• identifying and recognising the types of damages
• identifying the possible defence to a negligence action
• discussing the effect of the doctrine of vicarious liability
• identifying and understanding alternative actions to negligence in a healthcare context.
Introduction
Medical negligence litigation is considered as one of the means by which the quality of healthcare services is improved and maintained. That is, the threat of litigation effectively deters poor behaviour by healthcare professionals, including medical practitioners, and, through the publicity of cases, educates the public and professionals about what is an appropriate standard of care. 1
In the 1960s, law suits brought against health professionals were exceptionally rare and considered by the medical and legal professions as aberrations. Patients who attempted to initiate actions were thought of as ungrateful and would find it almost impossible to engage expert witnesses to support their case. 2 As a consequence, not only were medical defence insurance contributions minimal, but the effect of such litigation was considered trivial and was virtually ignored in relation to public and private healthcare costs and general standards of patient care.
Since the 1970s, however, there have been assertions of a worldwide ‘crisis’ in medical malpractice litigation. Commentators speak of medical malpractice litigation and the financial and social costs associated with it as in the grips of ‘crisis’. 3 A combination of the community perception of a medical malpractice ‘crisis’, the perceived lack of clarity and predictability in personal injury litigation, the amounts in damages awarded to successful litigants and the public liability insurance collapse necessitated intervention and response by the federal government. In 2002, the ministers from the Commonwealth, state and territory governments negotiated to undertake a national review of the law of negligence in Australia: Review of the Law of Negligence (the Ipp Report). As a result of the recommendations arising out of this review, civil liability legislation was introduced in all Australian jurisdictions. 4 As the civil liability legislation is not uniform across the individual Australian states and territories, medical practitioners must familiarise themselves with the legislative provisions in the individual states or territories in which they go to work.
Notwithstanding that within the Australian context negligence law is now an amalgam of case law and legislation, medical negligence litigation has been, and continues to be, credited with bringing about safer practices in the provision of healthcare services. All health professionals involved in the provision of healthcare services are becoming increasingly aware of their legal obligations to their patients and clients. This chapter examines the elements necessary to establish an action in negligence against a medical practitioner.
Negligence
Negligence is the civil action initiated under the law of torts in which medical practitioners and healthcare institutions may become liable if a patient, or client, sustains an injury while in their care. A claim in negligence alleges conduct that may include not only an act, but also an omission to act, which is causally linked to the injury. In relation to civil liability, negligence has been defined in legislation as the ‘failure to exercise reasonable care and skill’,5which may include ‘a breach of a tortious, contractual or statutory duty of care’. 6 For example, in a healthcare context, a patient who is injured or suffers a loss as a result of the acts or omissions of a medical practitioner may bring an action in negligence against the professional and/or their employer, seeking compensation. The basis of the claim is that the conduct of the medical practitioner fell below the standard of care appropriate to the particular circumstances and that this action resulted in damage, which the patient now seeks to have compensated in money. Unlike criminal proceedings, the action seeks to place the injured person (the plaintiff) in the position they would have been in had they not sustained the damage. The consequences of a finding of liability against a medical practitioner and/or the healthcare institution (the defendant) is therefore not considered as a punishment but rather as compensation to the injured party or their relatives. The principle underpinning this form of legal redress is to shift the loss, as far as money is able to do so, from the individual who has sustained the injury or damage to the individual or institution who is held to have caused the loss.
Proof
The person, usually a patient (the plaintiff), bringing the action in negligence must prove every element of the action according to the civil standard of proof, which is on the balance of probabilities to succeed in their claim. To do this, the plaintiff must adduce evidence in the form of documents, testimony from witnesses, or other relevant materials sufficient to satisfy this standard. If the plaintiff is not able to prove any one of the elements necessary to succeed in the negligence action on the balance of probabilities, the action will fail completely. That is, the court must be satisfied that every element of the action has been proven on the balance of probabilities for the plaintiff to succeed in their claim.
Though applied in only exceptional circumstances, the fact that an accident has occurred at all may raise the inference of negligence on the part of the defendant. This is the doctrine of res ipsa loquitur, ‘the thing speaks for itself’, which will only apply when:
• there is no evidence as to how or why the accident occurred;
• the accident is such that it would not occur without negligence; and
• the defendant is proved to have been in control of, or linked to, the situation either personally or vicariously. 7
In Cassidy v Ministry of Health, 8 Lord Denning stated:
If the plaintiff had to prove that some particular doctor or nurse was negligent, he would not be able to do it. But he was not put to that impossible task: he says, ‘I went into the hospital to be cured of two stiff fingers. I have come out with four stiff fingers, and my hand is useless. That should not have happened if due care had been used. Explain it, if you can’. I am quite clearly of the opinion that that raises a prima facie case against the hospital authorities … They have nowhere explained how it could happen without negligence. They have busied themselves in saying this or that member of their staff was not negligent. But they have called not a single person to say that the injuries were consistent with due care on the part of all members of their staff. They called some of the people who actually treated the man, namely Dr Fahrni, Dr Ronaldson, and Sister Hall, each of whom protested that he was careful in his part; but they did not call any expert at all, to say that this might happen despite all care. They have not therefore displaced the prima facie case against them and are liable in damages to the plaintiff.
Kennedy and Grubb propose that there are two reasons as to why the res ipsa loquitur doctrine will not usually be available to a plaintiff in a medical case. The first is that there are no certainties in medical treatment. The second is based on significant changes in both medical and legal practices. These changes include an improvement in the way health professionals, including medical practitioners, document patient information and changes to rules of evidence and court rules which facilitate the nature and amount of evidence available to parties involved in litigation. The cumulative effect of both of these factors is that it is more likely that the plaintiff will know, or be able to find out, what happened during his or her period of care or treatment. 9
Elements of a Negligence Action
Negligence has been defined by the courts as:
[T]he omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. 10
However, not every injury that occurs while a patient is under the care of a medical practitioner will result from negligence, and not all acts or omissions that result in an injury will be held to be negligent. The courts have acknowledged that where a medical practitioner makes a ‘mere’ error in clinical judgment11 or embarks on procedures which, with hindsight, are recognised as a ‘misadventure’, 12 it will not, in all circumstances, constitute negligence. In such circumstances, the law confronts the practical reality of healthcare delivery in accepting that some injuries are the result of unforeseen circumstances that do not involve fault on the part of the medical practitioner or the institution.
To succeed in a claim in negligence against a medical practitioner therefore, the patient (plaintiff) must be able to establish, on the balance of probabilities all the elements:
• the patient was owed a duty of care by the medical practitioner (defendant)
• that there was a breach of that duty in that the medical practitioner’s conduct fell below the required standard of care
• this conduct caused the damages suffered by the patient
• the loss or damage suffered was reasonably foreseeable. 13
Duty of care
The first element that the plaintiff must prove is that the defendant owed the plaintiff a duty of care. In all but the most unusual circumstances where there is a medical practitioner–patient relationship, there will also be the legally recognised relationship upon which the courts impose a duty of care. 14 This is so, based on the ‘neighbour principle’ enunciated by Lord Atkin in what is now considered the landmark case of Donoghue v Stevenson. 15 In this case, the plaintiff sought compensation for the consequences flowing from drinking the contents of a bottle of ginger beer that contained a decomposing snail. Lord Atkin stated:
You must take reasonable care to avoid acts or omissions which you could reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. 16
Though the facts of this case were specifically concerned with consumer law, it can be seen that the medical practitioner–patient relationship is one which gives rise to a duty of care. The patient is clearly a person whom the medical practitioner can reasonably foresee as likely to be injured if reasonable care is not exercised. In the case involving a medical practitioner, the majority judgment of the High Court of Australia in Rogers v Whitaker held:
The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment, it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. 17
The obligation to take ‘reasonable care’ against the risk of harm that is ‘reasonably foreseeable’ has long been considered by the courts. In Swain v Waverley Municipal Council, Gleeson CJ held that:
People do not expect, and are not entitled to expect, to live in a risk free environment. The measure of careful behaviour is reasonableness, not elimination of risk. 18
Reasonable foreseeability
As stated above, there is a requirement that the plaintiff is reasonably foreseeable to the defendant and that there is a reasonable foreseeability of harm. These are questions of fact and remain the basis for a determination of duty of care. The test is objective: was the plaintiff foreseeable as an individual, or member of a class to whom the duty was owed? In the particular circumstances, was the risk that eventuated to the particular plaintiff, or a class of people to which the plaintiff is a member, foreseeable?19 The question for consideration is: ‘What, in all the circumstances and having given the matter close attention, would the reasonable person have foreseen?’ In a case where a patient sues their medical practitioner, to succeed in establishing the existence of the duty of care the patient (plaintiff) must prove that the medical practitioner (defendant) ought to have foreseen that negligence on the part of the medical practitioner could lead to the patient being injured. It is not necessary that the patient establish that the medical practitioner foresaw the damage to the patient as an individual. The element will be satisfied if the patient was a ‘member of a class’ to whom the damage was foreseeable. 20 That is, the medical practitioner–patient relationship is such that the medical practitioner would know the patient was likely to be affected by their actions.
The people to whom medical practitioners, and all health professionals may owe a duty of care as part of their work can often be quite extensive. Not only is there a duty owed by medical practitioners, nurses and allied health professionals to their patients and clients but the New South Wales Court of Appeal, in the case of Alexander v Heise, 21 held that a medical practitioner’s receptionist had a duty of care to make an assessment of a patient’s condition, determine the urgency of the condition based on that assessment and schedule an appointment with the medical practitioner accordingly. A duty is owed not only to the patients and clients but also to third parties. The third parties could include the relatives of patients or people whom the patient may injure while under the care of the health professional. 22 The following are some specific examples of circumstances in which a health professional, particularly medical practitioners, may owe a duty of care.
Duty to Third Parties
As stated above, a medical practitioner may owe a duty of care not only to their patients but also to others (third parties) who may be injured through the failure of the medical practitioner to take reasonable care of the patient. That is, in failing to give a reasonable, appropriate, competent standard of care to a patient another person sustains an injury. In the case of BT (as Administratix of the Estate of the Late AT) v Oei, 23 the court held that the medical practitioner Dr Oei, owed the plaintiff, BT, a duty of care which he had breached in failing to advise the patient AT (who was the partner of BT) that he should undergo a HIV test. The patient, AT, had consulted Dr Oei over a number of years and had been diagnosed as suffering from hepatitis, cirrhosis of the liver, kidney stones and recurrent infections, which included a urinary tract infection. AT also informed Dr Oei that he had been participating in sexual activity with a prostitute. The patient AT and his partner BT (who was not a patient of Dr Oei) both tested positive for HIV and shortly thereafter AT died of renal failure. As BT had contracted HIV from AT, she sued Dr Oei in negligence, alleging that if Dr Oei exercised ordinary skill and care, he would have identified that AT was at risk of having contracted HIV (in light of his symptoms) and therefore Dr Oei had a duty to advise AT to undergo testing for HIV. A duty which he had breached. The case is of interest as it is indicative of the duty owed by medical practitioners to third parties such as BT. Of particular significance are the circumstances of the case. Not only was there no pre-existing medical practitioner–patient relationship between BT and the defendant Dr Oei, but also there was no evidence to suggest that he knew of the sexual relationship between his patient AT and BT. The court held that the medical practitioner ought to have known the patient had exposed himself to the risk of contracting HIV. As AT’s condition was latent, neither he nor his partner were able to protect themselves from the risk of BT contracting HIV. Therefore, the medical practitioner owed a duty of care to advise AT to undergo HIV testing. It is important to note that, even though a duty of care has been established and breached, these elements alone will not sustain an action in negligence. It is also necessary for the plaintiff to prove that, once AT was armed with the knowledge that a test for HIV was advisable, he would have undergone that test (refer to the section in this chapter entitled ‘Causation’).
In the case of McDonald v Sydney South West Area Health Service,24 the New South Wales Supreme Court was to determine whether the father of a child born, after the mother had a sterilisation procedure performed, was entitled to recover the costs of raising the healthy child. The statement of claim alleged negligence first in the failure of the medical practitioner to advise and warn in relation to the sterilisation procedure, and secondly that the tubal ligation procedure was not properly performed in that the Filshie clip on the left fallopian tube was not applied so as to completely occlude the tube. The court held that the medical practitioner knew, or ought to have known, that if he did not properly occluded the fallopian tube the mother and her partner (the plaintiff) would suffer a financial detriment from having to incur the cost of raising the child. The relationship between the mother and the plaintiff (her husband) was determined by the court to be so close as to give rise to a duty of care between the medical practitioner and the husband.
In PD v Dr Harvey and Dr Chen, 25 the Supreme Court of New South Wales also found the medical practitioner owed a duty of care to the patient’s sexual partner who was herself a patient. In this case, the plaintiff and her then boyfriend together attended a medical practice, seeking to be tested for HIV and other sexually transmitted diseases. Though the couple attended the consultation together, the medical practitioner did not discuss with them whether they wished to be informed of the test results together or what should happen if one of their results returned positive. Some days later, the medical practitioner received the plaintiff’s results, which were negative for HIV. The results for her boyfriend, however, were positive for both HIV and hepatitis B. The plaintiff, though given her own results, was told she could not access her boyfriend’s results, as the information contained therein was confidential. The boyfriend was informed of his results and given a referral to a specialist. He neither attended the appointment nor disclosed the results to the plaintiff, but rather told her he was negative and produced a forged pathology report confirming that to be the case. Although the plaintiff attended the same medical practice twice over the next 6 months, neither of the medical practitioners (who had had access to the results of the boyfriend) sought to confirm whether the boyfriend had disclosed his HIV status to her. Neither was there any entry in her medical records identifying that she was in a sexual relationship with a person who had been identified as being HIV positive. The couple married and the plaintiff became pregnant. Shortly thereafter the plaintiff was diagnosed as being HIV positive. The plaintiff successfully sued in negligence with Cripps J finding that the defendants (the medical practitioners) owed the plaintiff a duty of care and had, through their conduct, breached that duty. The defendants were held to be in breach of their duty in that, in the circumstances:
• they had failed to identify the potential conflict of interest should the plaintiff or her boyfriend (who were both patients of the medical practice) return a positive test result
• had failed to obtain instructions from either the plaintiff or her boyfriend as to how the information should be communicated were this to be the case
• had failed to ensure that the test results were provided personally
• failed to make provision for the cross-referencing of the medical records
• failed to provide adequate and appropriate advice, treatment and follow-up to the plaintiff’s boyfriend in relation to counselling and post-diagnosis specialist treatment.
The existence of a duty of care owed by the medical centre to the plaintiff is evident in the decision. His Honour stated:
[T]he obligation to look after [the plaintiff’s] interests, insofar that could lawfully be done, continued while she was a patient of the practice … It may be argued that it has not been established that the doctor who vaccinated her for the trip to Ghana or the doctor who prescribed contraceptive pills were aware of the [boyfriend’s] positive result and that he was the person that she was proposing to marry. But the … medical centre had that information and I do not think that the duty owed to the patient can be avoided by what appears to be an inadequate cross-referencing of patients’ cards. 26
Duty to the unborn
A person may owe a duty of care to a child who has sustained injury prior to birth. In the case of Watt v Rama27 the negligent driver of a motor vehicle was held to owe a duty of care to other road users including any unborn child they may be carrying. The right to claim in negligence does not arise until the child is born alive and ‘has a separate existence from its mother’. 28The medical practitioner who is caring for a pregnant woman therefore owes a duty of care not only to the mother (the patient), but also to her unborn foetus. It may also be the case that a duty is owed for medical intervention and treatment before an infant is conceived. In the case of Kosky v Trustees of the Sisters of Charity29 the female patient was negligently given incorrect blood. Though she did not suffer any adverse effects from the transfusion at the time, some 8 years later she gave birth to a child who suffered complications from Rh iso-immunisation and a premature induction made necessary by the transfusion of the incorrect blood. The court held that the healthcare institution in which she received a transfusion of the incorrect blood group owed a duty of care to the child who suffered damage as a result of the negligent conduct that occurred some 8 years prior to the birth. In addition to an action in negligence as described in this paragraph, are claims in negligence bought by children and/or their parents and/or the legal representatives of the children for ‘wrongful life’ or ‘wrongful birth’ (which includes claims for ‘wrongful conception’).
Claims by a child for damages from a medical practitioner for ‘wrongful life’ are very complex and raise significant ethical and legal issues. Essentially the claim is based on the argument that, had the mother been properly advised about the option of terminating the pregnancy, the child would now not be alive and suffering. The issue to be determined by the court as stated by Kirby J in Harriton v Stephens30 is:
whether a child, born with profound disabilities, whose mother would have elected to terminate her pregnancy had she been aware that there was a real risk of the child being born with such disabilities, is entitled to damages where a medical practitioner negligently fails to warn the mother of the risk.
The appeal in the case of Harriton from the New South Wales Court of Appeal was heard by the High Court together with Waller v James and Waller v Hoolahan. 31 By a 6–1 majority the High Court dismissed each of the appeals making a determination that the alleged damage did not constitute a cognisable injury. Crennan J in the case of Waller (with whom Gleeson CJ, Gummow and Heydon JJ concurred), stated:
The appellant’s claimed damage in each of his appeals is his life with disabilities. This inevitably involves an assertion by the appellant that it would be preferable if he had not been born, irrespective of whether the conduct about which he complains occurred prior to, or during, his mother’s pregnancy with him … the appellant’s life with disabilities is not legally cognisable damage in the sense required to found a duty of care towards him. This is so whether or not the proposed duty of care is formulated as a duty upon Dr James and the Sydney IVF to him as a ‘prospective child’ of the parents, or a ‘potential child’, or a ‘potential person’, or as a duty of care upon Dr Hoolahan to him as a foetus. For these reasons, and the reasons set out in Harriton v Stephens, the appellant’s damage in each of the appeals is not actionable.
A claim for ‘wrongful birth’ (as distinct from a claim for ‘wrongful life’) is initiated by the parent or parents of a child who has been born with a disability claiming in damages for the extra costs of raising their disabled child. The parents allege that had the medical practitioners diagnosed the abnormality or condition earlier, or at all, the mother would have had the opportunity to terminate the pregnancy.
In an action for ‘wrongful conception’ the parents claim that the medical practitioner’s negligence, in failing to properly perform a sterilisation or termination, or prescribing or supplying faulty contraception, led to the birth of a child they did not intend to have. In Cattanach v Melchior32 the plaintiffs (the parents of the child) sued Dr Catternach, an obstetrician and gynaecologist who had performed a tubal ligation on Mrs Melchoir. Only one of Mrs Melchoir’s fallopian tubes was clipped due to incorrect information given to Dr Cattanach by Mrs Melchoir and the inability of Dr Cattanach to have a clear view of the fallopian tubes during the procedure. Mrs Melchoir became pregnant and delivered a healthy baby some 5 years after the surgery. The High Court found Dr Cattanach negligent for accepting the information given by Mrs Melchoir without any further investigation. The majority held that, where a child was born as a result of a medical practitioner’s negligence, the medical practitioner could be required to bear the cost of raising and maintaining a healthy child until they reached the age of 18 years. In Queensland, New South Wales and South Australia, legislation has been enacted to overcome the decision in Cattanach v Melchoir. As an example, ss 49A and 49B of the Civil Liability Act 2003 (Qld) state:
49A Failed sterilisation procedures
(1) This section applies if, following a procedure to effect the sterilisation of an individual, the individual gives birth to, or fathers, a child because of the breach of duty of a person in advising about, or performing, the procedure.
Examples of sterilisation procedures –
Tubal ligation and vasectomy
(2) A court cannot award damages for economic loss arising out of the costs ordinarily associated with rearing or maintaining a child.
49B Failed contraceptive procedure or contraceptive advice
(1) This section applies if, following a contraceptive procedure on an individual or the giving of contraceptive advice to an individual, the individual gives birth to, or fathers, a child because of the breach of duty of a person in advising about, or performing a procedure or giving the advice.
Duty to rescue
The term ‘good Samaritan’ is often used to refer to a person who, in good faith and without the expectation of a fee, provides assistance or rescues another who has been injured, is at risk of being injured or requires emergency assistance. Though medical practitioners may feel ethically compelled to render aid in such circumstances, as a general proposition there is no common law obligation on any individual to render emergency aid, regardless of whether they are or are not a medical practitioner. 33 As stated by Windeyer J in Hargrave v Goldman: 34
The dictates of charity and of compassion do not constitute a duty of care. The law casts no duty upon a man to go to the aid of another who is in peril or distress, not caused by him. The call of common humanity may lead him to rescue. This the law recognises, for it gives the rescuer its protection when he answers the call. But it does not require that he do so. There is no general duty to help a neighbour whose house is on fire.
The decision in the New South Wales Court of Appeal case of Lowns v Woods35 was a significant departure from the traditionally held assumption that in Australia there was, at common law, no duty to rescue or assist in an emergency. Further exceptions to the general principle that there is no duty to rescue would include those discussed below.
• Where there is legislation specifically directed to the imposition of a legal duty to render assistance
As an example, under s 155 of the Northern Territory Criminal Code:
any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of a crime and is liable to imprisonment for 7 years.
Though the Northern Territory is the only Australian jurisdiction to impose such a general duty on ‘any person’, where the person is the ‘driver’ of a motor vehicle involved in an accident, the relevant legislation in each of the states or territories may impose an obligation to stop and provide reasonable assistance. Section 92(1) of the Transport Operations (Road Use Management) Act 1995 (Qld), for instance, requires that:
[T]he driver of any vehicle … involved on any road, or of any motor vehicle involved elsewhere than on the road in a accident resulting in injury to or death of any person or damage to property … shall … immediately stop the vehicle … remain at or near the scene of the accident and immediately render such assistance as the driver can to the injured person … (making) reasonable endeavours to obtain such medical and other aid as may reasonably be required for the injured person.
It is noteworthy that the legislative obligation imposes the duty to stop and render assistance only on the ‘driver’ of the vehicle involved in the accident and not on the drivers of other vehicles who come upon the accident. In addition, legislation may also impose an obligation on specific health professionals to provide assistance. The New South Wales Medical Practice Act 1992 imposed the obligation on medical practitioners to render assistance. Section 36(1) included, as the grounds for ‘professional misconduct’, that the medical practitioner has refused or failed:
… without reasonable cause, to attend (within a reasonable time after being requested to do so), on a person for the purpose of rendering professional services in the capacity of a registered medical practitioner in any case where the practitioner has reasonable cause to believe that the person is in need of urgent attention by a registered medical practitioner, unless the practitioner has taken all reasonable steps to ensure that another registered medical practitioner attends instead within a reasonable time.
• Where the person has assumed responsibility for the supervision or care of another.
In a healthcare context, this situation would most frequently arise in circumstances where a medical practitioner or nurse accompanies a patient away from the hospital or institutional environment.
• Where the person requiring assistance is in an existing and special relationship with the rescuer.
In circumstances, for example, where a parent is able to save their child’s life, the law would anticipate that the parent would make all reasonable attempts to do so. In the case of Horsley v McLaren (The Ogopogo), 36 Laskin J referred to the relationships of parent and child, employer and employee, doctor and patient, and passenger and carrier as giving rise to a duty to rescue.
• Where the employer has, as part of the policy of the institution, a stated expectation that employees, in particular circumstances, will stop and render assistance.
For example, it is not uncommon that the respective state and territory departments of health require employees who drive department vehicles to stop and provide assistance should they come upon an accident while on department business.
When a medical practitioner does stop at the scene of an accident for the purpose of rendering assistance, a duty of care arises. The standard of care, however, will be reflective of the circumstances in which the emergency care is provided. As an example, the standard of care would be that of ‘any reasonable rescuer’ in the environment in which the accident or injury has occurred. There is no expectation that the medical practitioner, at an accident site, could deliver the same standard of care that would be anticipated in the hospital setting. Where the rescuer is confronted with an unfamiliar emergency situation that requires life and death decisions to be made urgently, the courts have been reluctant to find the rescuer liable in negligence. In Leishman v Thomas, 37 it was held:
… a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called ‘agony of the moment’, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.
Historically, the courts have taken a lenient attitude to rescuers, provided that they have acted in good faith and not in a manner that is reckless, negligent or demonstrates a lack of reasonable care and skill, thereby causing damage to the person being assisted. This seems to be the case even where the care has resulted in harm. The courts have held that the rescue itself is the ‘natural and probable consequence of the original accident and therefore does not operate to break the chain of causation’. 38
Both Queensland and New South Wales have legislation protecting specified health professionals from legal action in the rescuer role. In Queensland s 16 of the Law Reform Act 1995 protects medical practitioners, nurses or other people prescribed under a regulation who render medical care, aid or other assistance to an injured person in circumstances of a emergency and which is reasonable, given in good faith and without gross negligence or the expectation of a fee. In New South Wales the Health Services Act 1997 protects only members of staff of the New South Wales Ambulance Service and honorary ambulance officers. 39
The following is an overview of the legislation and provisions relevant to potential claims against rescuers, good Samaritans and not-for-profit organisations. 40Table 5.1 sets out the legislation addressing rescuers in each of the Australian jurisdictions.
| ACT | Civil Law (Wrongs) Act 2002 s 5 |
| NSW | Civil Liability Act 2002 ss 56 and 57 |
| NT | Personal Injuries (Liabilities and Damages) Act 2005 s 8 |
| Qld | Law Reform Act 1995 s 16 and Civil Liability Act 2003 s 26 |
| SA | Civil Liability Act 1936 s 74 |
| Vic | Wrongs Act 1958 s 31B |
| WA | Civil Liability Act 2002 Part 1D |
Good Samaritans
• In the ACT a good Samaritan or medical practitioner who acts honestly and without recklessness will be exempt from liability while rendering assistance or giving advice in an emergency. Similar protection is afforded volunteers in these circumstances, but the community organisations themselves may be held liable for the actions of their volunteers. 41
• In New South Wales rescuers and good Samaritans will not incur personal civil liability in giving emergency aid except where their conduct evidences a degree of impairment or a failure to exercise reasonable care and skill. A person undertaking a rescue as a volunteer will similarly not be held personally liable where they act in good faith in carrying out community work or as an office-holder of a community organisation. 42
• In the Northern Territory volunteers, good Samaritans and medically qualified people acting in good faith and without recklessness in an emergency situation are exempt from civil liability. 43
• In Queensland the Civil Liability Act 2003 states there will be no personal liability for first aiders who are performing duties in an emergency acting in good faith and without reckless disregard for safety. In addition, a person providing first aid or other aid or assistance while performing duties to enhance public safety or for an entity prescribed under a regulation that prescribes services to enhance public safety will not be held liable for acts done or omitted to be done in the course of rendering that aid or assistance. 44
• In South Australia the legislation refers to both the good Samaritan and the medically qualified person who, in assisting in an emergency, do so in good faith and without the expectation of being paid a fee. 45
• In Tasmania there are no legislative provisions, which specifically address the legal obligations or protection offered to a rescuer in Tasmania. The law is therefore to be found in the case law which requires a standard that is generally consistent with that legislatively prescribed in the other states and territories.
• In Victoria a person acting as a good Samaritan is not personally liable in any civil proceedings where they have acted in good faith to provide assistance, advice or care in an emergency or accident where the recipient is actually or apparently at risk of death or injury. 46 A volunteer is also not personally liable where they are undertaking a service that has been organised by the community organisation or is part of the services provided by that organisation. 47
• In Western Australia volunteers are exempt from liability in civil actions arising out of their service for community organisations. It is noteworthy that the Western Australian legislation imposes on the government the obligation of insuring essential not-for-profit organisations. 48
There are no cases in Australia in which a medical practitioner has been held liable for the outcome of a voluntary rescue attempt.
Breach of the duty of care
Once it is established that a person (the defendant) owed a duty of care to another person (the plaintiff) it must then be proven, to the civil standard, that their action or omission amounted to a breach of a standard considered appropriate. The benchmark to determine a general breach of the duty of care, that is, whether the conduct fell below the requisite standard, is the ‘reasonable man’ test. As an example, the question is: ‘What would the reasonable man or, as has been described, the “man on the Bondi bus” consider as reasonable in the circumstances?’ This is an objective test. Provisions under the civil liability Acts49 in a number of Australian jurisdictions have provided a legislative basis for the determination of the reasonable standard of care in personal injury claims. In the wider context, the legislation provides that a person will not be negligent where they fail to take precautions against a foreseeable risk; that is, unless the risk itself would be considered as ‘not insignificant’ and a reasonable person in the same position as the defendant would have taken the precautions. This notionally incorporates an assessment of the probability or likely seriousness of the harm, the burden of taking the precautions and the social utility of the activity associated with that risk. The principle for breach of the general duty has been legislated in all jurisdictions other than the Northern Territory. The Queensland Civil Liability Act 2003 provides at s 9:
(1) A person does not breach a duty to take precautions against a risk of harm unless –
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things) –
(a) the probability the harm would occur if the care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
When the issue involves the standard of care required of skilled professionals, and more particularly medical practitioners, the case law and civil liability legislation provide the benchmark against which the alleged conduct will be considered. Questions such as ‘What is the standard?’, ‘Is the standard the same for all professions?’, and ‘Does it apply to all aspects of the medical practitioner’s duty of care’? are fundamental and require further investigation. These questions are also integral to the decision-making practices of medical practitioners when they determine which diagnostic tests are appropriate, which procedures are to be undertaken, what treatment regimes should be ordered and carried out, and how much information is to be provided to a patient in relation to the risks inherent in medical treatment and care.
Determination of a Standard of Care for Professionals
Allegations made against medical practitioners involving a breach of the duty of care will most frequently arise in the context of technical practice issues (that is, about assessment, diagnosis or treatment decisions and/or action) or, in the context of providing, or failing to provide, information as to the risks associated with a particular procedure or treatment. The case law and the legislation distinguish between these two contexts (technical practice and failure to warn of risks) therefore each context will be considered separately.
Technical practice issues
The test to determine whether a medical practitioner has been negligent was advanced in the United Kingdom in the case of Bolam v Friern Hospital Management Committee, 50 McNair J stating:
Where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not … is the standard of the ordinary skilled man exercising and professing to have that special skill … in the case of a medical man, negligence means failure in accordance with the standards of reasonable competent medical men at the time. 51
And:
A doctor is not in breach of his duty in the matter of diagnosis and treatment if he acts in accordance with a practice accepted at the time as proper by a reasonable body of medical opinion even though other doctors may adopt a different practice. 52
The test identifies the standard for professionals, and was adopted by the High Court of Australia in the case of Rogers v Whitaker53 which involved a claim made by a patient against her ophthalmologist. The test does not require that the medical practitioner ‘possess the highest expert skill’. 54 The appropriate standard is determined by what a reasonable body of medical opinion accepts, at the time, as proper, reasonable, competent practice. The standard applies to the provision of all patient care and will, in each case, be determined by the level of expertise of the individual and the particular circumstances surrounding the alleged event. As an example, where a medical practitioner has worked in a particular clinical area for a prolonged period of time and undertaken specialist postgraduate qualifications, the standard will be commensurate with that level of skill and experience. In circumstances in which a medical practitioner has only recently graduated, the standards would be that of any other qualified medical practitioner. In the case of Wilsher v Essex Area Health Authority55 a neonate sustained injuries resulting in almost total blindness from excessive amounts of oxygen administered while being treated in an intensive care unit. The premature neonate had, in addition to other illnesses, an oxygen deficiency. A junior doctor attempting to check the neonate’s oxygen levels mistakenly inserted a catheter into the vein rather than the artery. The registrar who was asked to check not only failed to identify the error but also made the same mistake himself at a later time. One of the issues before the court was the standard of care owed to the child. On appeal to the House of Lords the standard of care accepted was that of the position or post occupied. That is, the standard of the ordinary person exercising or professing to have that special skill, in this case the skill of a medical practitioner. As stated by Lord Glidewell:
The law requires the trainee or learner to be judged by the same standards as his experienced colleague. If it did not, inexperience would frequently be urged as a defence to an action in professional negligence.
In the case of a medical student it is imperative therefore that the student does not undertake any clinical activities for which they have not attained the requisite level of competency. The level of supervision for medical students must ensure that all tasks are carried out at an appropriate standard and a medical student must not undertake any task for which they are not clinically qualified without adequate and appropriate supervision.
Indicators as to the standard of care accepted at the time as proper, reasonable and competent may include relevant research data, affidavits and testimony of peers and experts in the particular clinical area, policy and procedure documents of the particular clinical unit and employing institution, policy documents of the respective departments of health and regulatory authorities in the particular state or territory, and standards set by specialist organisations and colleges. As an example, in the Queensland Court of Appeal case of Langley v Glandore Pty Ltd (in liq), 56 two surgeons appealed against a jury decision finding them negligent in their failure to ensure the removal of a surgical swab from the abdomen of a patient undergoing a hysterectomy. The surgeons appealed on the grounds that, as the surgical swab was left in the wound, the swab count must have been incorrect. Therefore, the finding that there was no negligence on the part of the scrub nurse or the circulating nurse, and thereby the hospital, should be overturned. The surgeons argued that: 57
… under the procedures in place and relied upon by all concerned in the operation, the primary duty that a correct count had been made of all instruments, sponges, packs and the like to establish that they had all been removed from the patient’s body at the conclusion of the operation, lay with the nurses.
Macrossan CJ and Byrne J considered the conduct of the nurses against standards for swab and instrument counts established by the Australian Confederation of Operating Room Nurses. These standards, produced in evidence during the trial, had been accepted as benchmarking the required standard for the procedures. The court overturned the earlier decision and the nurses were found to be negligent: 58
[T]he nurses clearly, under the procedure described, had the primary duty for making an accurate count to ensure that all the sponges used had been recovered from the plaintiff’s body.
Civil liability legislation in Australia now prescribes the standard of care for professionals. While the legislation adopts the general principle laid down in Bolam’s case (above) it lacks uniformity between the jurisdictions and medical practitioners must familiarise themselves with the legislative provisions in the particular jurisdiction in which they conduct their practice. The following therefore sets out the relevant sections of the legislation in each of the jurisdictions (other than the Northern Territory where there are no specific legislative provisions for professionals):
Queensland
The Civil Liability Act 2003 states, in s 22:
22 Standard of care for professionals
(1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.
(2) However, peer professional opinion can not be relied on for the purpose of this section if the court considers that the opinion is irrational or contrary to a written law.
(3) The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of the 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.
(5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by the professional of a professional service.
New South Wales
The Civil Liability Act 2002 s 5O states:
5O Standard of care for professionals
(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.
Australian Capital Territory
The Civil Law (Wrongs) Act 2002 s 42 does not limit the application of the provision to persons who hold themselves out as having special skills or practicing a professional. The section states:
42. For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of the reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
Victoria
The Wrongs Act 1958 ss 58 and 59 state:
58. Standard of care to be expected of persons holding out as possessing a particular skill
In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out a possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is, subject to this Division, to be determined by reference to:
(a) what could reasonably be expected of a person possessing that skill; and
(b) the relevant circumstance as at the date of the alleged negligence and not a later date.
59. Standard of care for professionals
(1) A professional is not negligent in providing 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 a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.
(3) The fact that there are differing professional opinions widely accepted in Australia by a significant number of respected practitioners in the field 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 widely accepted.
(5) If, under this section, a court determines peer professional opinion to be unreasonable, it must specify in writing the reason for the determination.
(6) Subsection (5) does not apply if a jury determines the matter.
Tasmania
The Civil Liability Act 2002 at s 22 states:
22. Standard of care for professionals
(1) A person practising a profession (a ‘professional’) does not breach a duty 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) Peer professional opinion can not be relied on for the purpose of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing professional opinions widely accepted in Australia concerning a matter does not prevent any one or more of those opinions being relied on for the purpose of subsection (1).
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Western Australia
The Civil Liability Act 2002 states at s 5PB:
5PB Standard of care for health professionals
(1) 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.
(2) Subsection (1) does not apply to an act or omission of a health professional in relation to informing a person of a risk of injury or death associated with –
(a) the treatment proposed for a patient or a foetus being carried by a pregnant patient; or
(b) a procedure proposed to be conducted for the purpose of diagnosing a condition of a patient or a foetus carried by a pregnant patient.
(3) Subsection (1) applies even if another practice that is widely accepted by the health professional’s peers as competent professional practice differs from or conflicts with the practice in accordance with which the health professional acted or omitted to do something.
(4) Nothing in subsection (1) prevents a health professional from being liable for negligence if the practice in accordance with which the health professional acted or omitted to do something is, in the circumstances of the particular case, so unreasonable that no reasonable health professional in the health professional’s position could have acted or omitted to so something in accordance with the practice.
(5) A practice does not have to be universally accepted as competent professional practice to be considered widely accepted as competent professional practice.
(6) In determining liability for damages for harm caused by the fault of a health professional, the plaintiff always bears the onus of proving, on the balance of probabilities, that the applicable standard of care (whether under this section or any other law) was breached by the defendant.
South Australia
The Civil Liability Act 1936 at s 41 states:
41 Standard of care for professionals
(1) A person who provides a professional service incurs no liability in negligence arising from the service if it is established that the provider acted in a manner that (at the time of the service was provided) was widely accepted in Australia by members of the same profession as competent professional practice.
(2) However, professional opinion cannot be relied on for the purposes of this section if the courts consider that the opinion is irrational.
(3) The fact that there are differing professional opinions widely accepted in Australia by members of the same profession does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Professional opinion does not have to be universally accepted to be considered widely accepted.
(5) This section does not apply to liability arising from connection with the giving of (or the failure to give a warning, advice or other information in respect of a risk of death of or injury associated with the provision of a healthcare service.
It is evident from the foregoing that, as a general principle, professionals will not be found liable in negligence if they practise in a manner that is widely accepted in Australia by peer professional opinion as competent professional practice. While the provisions apply to professionals across all disciplines, health-related or otherwise, the following is of note and should highlight the importance of identifying the provisions of the civil liability legislation in the particular state or territory in which a medical student is studying and intends to later practice in.
To whom does the section apply:
• Western Australia is the only state to refer specifically to the standard of ‘a health professional’
• in Queensland, the section refers to a ‘professional’
• and in Tasmania and New South Wales the legislation refers to the standard for a ‘person practising a profession’
• the South Australian legislation applies to a person providing a ‘professional service’
• and in Victoria, to ‘persons holding out as possessing a particular skill’.
What amounts to a breach:
• in New South Wales and South Australia the respective sections state the professional ‘does not incur liability’
• in Victoria and Western Australia the respective sections provide the professional is ‘not negligent’ or the conduct will not be ‘a negligent act or omission’.
The New South Wales case of Halverson & Ors v Dobler Halverson by his tutor v Dobler59 highlights the significance of different terminology when courts apply the test (of a professional’s standard of care) as set out under the civil liability legislation in making a determination as to whether the medical practitioner breached their duty of care to the patient. In this case, Kurt Halverson (by his tutor) sued his general practitioner, Dr Dobler, in negligence for failing to exercise due care in his treatment of Kurt between 1995 and 10 February 2001. Halverson alleged that Dr Dobler should have identified his cardiac problems before he suffered a cardiac arrest on 11 February 2001 and, due to the resulting hypoxic brain damage, sustained catastrophic injuries. Halverson submitted that Dr Dobler breached his duty of care by failing to carry out an ECG or refer him to a cardiologist after Dr Dobler detected Kurt’s heart murmur on 1 February 2001 and after Kurt suffered a period of loss of consciousness (a syncopal attack) on 4 February 2001. His Honour McClennan CJ considered the concurrent expert evidence of five general practitioners and then the concurrent evidence of five expert cardiologists. McClennan CJ preferred the evidence of the plaintiff’s experts. In relation to the peer acceptance test under s 5O of the Civil Liability Act 2002 (NSW), his Honour found the test did not operate to replace the standard as accepted in the case of Rogers v Whitaker. In finding that s 5O of the New South Wales Civil Liability Act 2002 was a defence, McClennan CJ stated:
Accordingly, the standard of care is still the standard that was endorsed in Rogers v Whitaker, but if a defendant is found to be negligent under this standard he or she can avoid liability if they can establish that they acted in a manner which was widely accepted in Australia as peer professional opinion as competent professional practice. 60
And:
In my view the section is intended to operate as a defence. The section is expressed so that ‘a person practising a profession … does not incur a liability in negligence’ if a certain state of affairs can be ‘established’. The italicised word goes to the issue of liability, not to the issue of negligence. 61
The wording of the New South Wales legislation is different from that of other jurisdictions such as Queensland in that it refers to incurring ‘liability in negligence’ rather than being in ‘breach of the duty’. In addition, it is noted that in all jurisdictions other than Queensland (‘widely accepted by peer professional opinion’) and Western Australia (‘in accordance with a practice … widely accepted by the health professional’s peers’) the standard is determined by specific reference to that which is ‘widely accepted in Australia’. This clearly influences the weight to be accorded to expert evidence from outside Australia. In all jurisdictions the civil liability legislation confirms that the court will not involve itself with the peer professional opinion unless it considers that opinion to be ‘irrational’, or in Western Australia and Victoria, to be ‘unreasonable’.
‘At the time’
The determination by the courts as to whether there has been a breach of the duty of care will require consideration of the conduct in light of the standards of practice ‘at the time’ the incident occurred. 62 The courts have been consistent in recognising that, with hindsight or the development of new technologies, conduct that is later found to be harmful may have been avoided. However, the courts will not hold a medical practitioner liable if at the time the event occurred it was not known that there was potential for damage or injury. The standard of care in negligence will be determined by the standards applicable when the conduct was alleged to have occurred, and not the standard at the time of the trial. The civil liability legislations in New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia provide that the liability of a professional, in providing a professional service, will be determined by the peer professional opinion ‘at the time’ the service was provided or at the time the act or omission occurred.
It is therefore of the utmost importance that medical practitioners maintain their clinical competency and an up-to-date knowledge base in their particular area of clinical expertise. If, on the evidence, it would be reasonable to assume that the competent clinician at the time would have known of the potential for harm from a procedure or treatment, then ignorance as to that fact will not provide a defence.
Failure to disclose risk
In addition to the breach of the duty of care by a technical blunder (an error in relation to technical practice) there is also the possibility that the medical practitioner may breach the duty of care by failing to disclose to a patient, or warn a patient, of risks. A medical practitioner has a duty to provide the information that a patient would require to make an informed decision about whether or not to undergo a diagnostic test or procedure. A failure to provide such information may result in a successful claim in negligence for breach of the duty of care where the patient proves that they would not have undergone the test or procedure had they been given the information and, as a result, they have sustained an injury. In relation to this duty to warn patients of risks associated with treatments and procedures, there is a lack of uniformity across the Australian states and territories. In some jurisdictions the civil liability legislation prescribes the obligations of medical practitioners to provide information as part of the process of obtaining consent. In the remaining jurisdictions the case law applies. The following will therefore address both the legislative framework and the common law (cases) applicable to the practical issue of disclosure of risk in the provision of healthcare services. It is noteworthy that a number of legal commentators63 have, on examination of the legislation, expressed the view that the changes introduced under the civil liability legislation might be little more than a restating of the common law and in ‘failure to inform’ cases the defendant medical practitioner may have lost the ability to have evidence of peers considered in the defence. 64 Section 22(5) of the Civil Liability Act 2003 (Qld), for example, expressly removes the protection of ‘peer professional opinion … in connection with the giving of or the failure to give a warning, advice or other information about a relevant risk of harm’.
Medical practitioners are subject to a prescribed duty to inform both proactively and reactively on the basis that they are to take reasonable care to provide information required to enable a patient to make a decision as to whether or not to undergo treatment. Section 21 of the Civil Liability Act 2003 (Qld), which is similar to the Tasmanian65 provision, states:
21. Proactive and reactive duty of doctor to warn of risk
(1) A doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical form of treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the information about the risk –
(a) that a reasonable person in the patient’s position would, in the circumstances, require to enable the person to make a reasonable decision about whether to undergo the treatment or follow the advice; and
In New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia there is no duty to warn another of an ‘obvious risk’. 66 However, medical practitioners should be aware that in a number of jurisdictions legislative limits in relation to the disclosure of information have direct relevance to a healthcare context. As an example, the Civil Liability Act 2002 (NSW) s 5H provides:
5H No proactive duty to warn of obvious risk
(1) A person (‘the defendant’) does not owe a duty of care to another person (‘the plaintiff’) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(a) the plaintiff has requested advice or information about the risk from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of the risk, or
(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
Allegations in negligence based on a ‘failure to warn’ are conducted in two stages. The first stage is to convince the court to the requisite standard that the relevant information was not communicated by the health professional to the patient. The second stage is to argue that had the information been given, the patient would not have consented to the treatment or procedure. In New South Wales, the plaintiff is precluded from leading this evidence under s 5D(3) of the Civil Liability Act 2002 which states:
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in light of all relevant circumstances, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
At common law, the determination of the duty to advise of risks of treatment within the Australian context was a gradual process that culminated in the High Court decisions in Rogers v Whitaker, 67Chappel v Hart68 and Rosenberg v Percival. 69 An analysis of the cases preceding these judgments serves to illustrate why the Australian courts formulated and implemented the standard of care that requires the disclosure of ‘material risk’ and focuses on the rights of patients to self-determination and autonomy.
As described above, negligence cases involving medical practitioners are commonly associated with procedural and diagnostic errors known as technical blunders. However, in the case of Chatterton v Gerson the court concluded that there was a duty on the medical practitioner to ‘explain what he intends to do, and its implications, in the way a careful and responsible doctor in similar circumstances would have done’. 70 The failure by the medical practitioner to provide such an explanation prior to a procedure or treatment would not constitute trespass71 (refer to Chapter 6, Consent, for an explanation of the action trespass to the person (civil assault or battery)), but rather a breach of the duty of care amounting to negligence. The test in Bolam’s case72 was therefore extended from the traditional application in technical blunder cases to cases where failure to warn of the risk was alleged. 73
In Sidaway’s case, 74 the plaintiff came under the care of a neurosurgeon in seeking relief from chronic arm pain. After 14 years of treatment the doctor performed a laminectomy at the level of cervical 4 and 5 of the spinal column. Though the procedure was competently performed, the plaintiff became paraplegic. There was no evidence that the plaintiff had ever asked for information as to the risks associated with this procedure and by the time the case came to trial the neurosurgeon had died. The action in negligence was based on the alleged failure by the doctor to warn the plaintiff of the risks prior to obtaining her consent to perform the surgery. The majority judgment held that the test in Bolam’s case applied to all aspects of a medical practitioner’s duty of care whether this was a technical activity such as diagnosis and treatment or the duty to warn of risk.
The dissenting judgment of Lord Scarman in this case is credited with being the origin of the view that the Bolam test does not apply to cases where the alleged negligence is a failure to warn of the risks. 75 Lord Scarman acknowledged that the Bolam principle was applicable to diagnosis and treatment and in such cases ‘the law imposes the duty of care but the standard of care is a matter of medical judgment’. 76 Lord Scarman concluded that in cases alleging negligence by the medical practitioner for failure to disclose risk:
[t]he critical limitation is that the duty is confined to material risk. The test of materiality is whether in the circumstances of the particular case the court is satisfied that the reasonable person in the patient’s position would be likely to attach significance to the risk. 77
This approach by Lord Scarman focused on the needs of a reasonable patient to have information, with a recognition that only the particular patient could fully appreciate their own particular needs and circumstances. It is noteworthy that the court imposed a duty to warn the patient of the material risks inherent in a procedure. The risks were considered to be material if ‘a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it’ or the medical practitioner ought to know that this patient would consider the information significant if told. 78
The meaning of the terms ‘material risk’, ‘significant risk’ and ‘risks inherent in the proposed treatment’ are significant to the practice of medical practitioners. They flag the existence of the duty to disclose relevant information to the particular patient or client. While a number of factors have been identified as indicative of a ‘material risk’ the courts have not concluded that one element is more significant than any other and, therefore, all factors would be considered. 79
The issue of the ‘likelihood of the occurrence of the risk’ has been raised as an indicator of the risk being ‘material’ and therefore necessary to disclose to the patient. Gaudron J, in Rogers v Whitaker, 80 stated that real and foreseeable risks must be disclosed; however, there was no obligation to disclose those which were ‘far-fetched’ and ‘fanciful’. In Causer v Stafford-Bell, 81 the patient suffered from menstrual problems and was advised to undergo an abdominal hysterectomy. The risk to her of developing a vesico-vaginal fistula and urinary incontinence from the procedure was estimated as being between 1:1000 and 1:10000. Post-operatively the patient indeed suffered the complications and initiated an action in negligence against the obstetrician and gynaecologist, alleging a failure to disclose the risk. The medical practitioner was held not to be in breach of the duty to warn, as the risk of developing a fistula was not significant or material so as to give rise to the duty. However, the fact that the risk of an occurrence is low must not be taken as indicating that it was not significant and material. In Rogers v Whitaker, where the plaintiff successfully sued the ophthalmic surgeon for failure to warn, the risk of suffering post-operative sympathetic ophthalmia was estimated as 1:14 000. 82
The gravity of the harm to the patient will significantly influence the information to be disclosed prior to obtaining consent for the treatment or procedure. In Rogers v Whitaker, 83 the patient was rendered blind in her only sighted eye as a result of the post-operative complications that had not been disclosed pre-operatively. The case of Uebel v Wechsler84 also involved an ophthalmic surgeon, sued by the patient for failure to warn of the risks associated with a corneal graft operation. The patient ultimately lost his eye and succeeded in his legal action on the grounds that the doctor was in breach of the duty of care in failing to disclose the risks that eventuated.
Other factors to be taken into account include the need of the patient to have the treatment,85the prior experience of the health professional, 86 the attitude and temperament and health of the patient (which includes their desire to have the information), 87 the medical knowledge available88 in relation to the treatment or procedure and whether the client has had access to other sources of information. 89
In the case of Bustos v Hair Transplant Pty Ltd and Peter Wearne90 his Honour, Judge Cooper, applied Rogers v Whitaker and Ellis v Wallsend District Hospital. 91 The allegations of negligence involved the performance of a hair transplant operation and the failure of Dr Wearne to warn the plaintiff of the ‘material risks’92 associated with the treatment. A material risk in these circumstances was taken to include anything associated with the procedure. This was due to the fact that, first, the procedure was elective and, secondly, it was for the purpose of improving the plaintiff’s physical appearance. The plaintiff, in the particular circumstances of the case, was unable to prove that if he had been informed of the risks he would not have undergone the procedure. Similarly, in Rosenberg v Percival, 93 the appellant was unable to persuade the High Court that, had she been advised of the material risks, she would not have undergone the surgery. In this case a nurse (the appellant), who consulted a maxillofacial surgeon (the respondent) complaining of increasing malocclusion, underwent a sagittal split osteotomy. Post-operatively she suffered chronic pain and sued the surgeon in negligence, alleging he had failed to advise her of the risk of temporomandibular joint problems prior to obtaining her consent. In reaching a decision, the High Court clarified the scope of the doctor’s duty to warn, with Gleeson CJ reiterating that the High Court does not consider the term ‘informed consent’ suitable within the Australian context. On the issue of causation Gleeson CJ stated:
Information about risk is being considered in the context of a communication between two people who have a common view that there is serious reason in favour of the contemplated surgery. The more remote a contingency which a doctor is required to bring to the notice of a patient, the more difficult it may be for the patient to convince the court that the existence of the contingency would have caused the patient to decide against the surgery.94
Gummow J observed that the risk must be precisely identified before it can be determined whether it was a ‘material’ risk. A material risk could be defined ‘by reference to the circumstances in which the injury can occur, the likelihood of the injury occurring and the extent or severity of the potential injury if it does occur’. 95 Whether the failure to warn of a material risk caused the damage, Gummow J determined, was a two-stage process. In the first instance the risk must be related ‘in a physical sense to the injury that was suffered’ and, secondly, there must be a causative link between the failure to warn of the risk and the occurrence of the injury.
Of great practical assistance is the case of Karpati v Spira. 96 The decision in this case gives all health professionals, including medical practitioners, a clearer indication of what factors the court will consider in determining whether a breach of the duty of care has occurred. 97 Spender J considered that, in ‘failure to warn’ cases such as this one, even if the doctor or doctors had adequately warned the patient, this advice should be conveyed in percentage terms or within a band or range of figures. The use of subjective terms such as ‘low’, ‘slight’ or ‘rare’ do not ‘adequately or relevantly convey the true nature of the risk’. 98 The taking and keeping of thorough and detailed medical records and notes, by implication, may assist the court in making a determination as to the reasonableness of the conduct of the health professional.
While the medical practitioner has the duty to provide the information necessary for the patient to make an informed decision it is for the court to determine what information a reasonable doctor would disclose in the particular case. The question for determination by the court is not whether the doctor’s conduct accords with medical judgment and practice but whether it accords with a reasonable standard of care as determined by the courts. This is confirmed in the New South Wales Civil Liability Act NSW 2002 at s 5P which states:
Both the courts and the legislature have been mindful of the effect that the occurrence of an injury may have on the plaintiff’s perception of what they would have done had they been warned of the risk prior to consenting to the procedure or treatment.
In the case of Hoyts v Burns99 a cinema patron claimed compensation for injuries she sustained when she fell, having failed to replace her seat which automatically lifted when she stood up. The woman claimed that, had the cinema provided a sign warning of the risk, she would not have sustained the injury. Justice Kirby stated:
… trial counsel for the Appellant protested that the ‘evidence’ about what would have been done if a sign had been displayed was a matter of ‘speculation’. So indeed it was. Whether or not, strictly, such evidence is admissible, it is commonly received in Australian courts. Presumably, this practice emerged once it was established that the relevant test of causation applicable in Australia was a subjective one. Nevertheless, the evidence of what a Claimant would have done if a non-existent warning had been given by a hypothetical sign is so hypothetical, self-serving and speculative as to deserve little (if any) weight, at least in some circumstances.
The New South Wales Civil Liability Act 2002 s 5D (3) (b) provides:
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in light of all relevant circumstance, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
Damage
As discussed, the damage is the ‘gist’ of an action in negligence. No matter how reckless a medical practitioner may have been in the care of a patient, if the patient has not sustained any injury as a result of that conduct, there can be no claim for damages. For example, the medical practitioner may administer the incorrect dose of a drug. Such an act may amount to a breach of the standard of care; however, if the patient sustains no injury they cannot obtain compensation through a claim in negligence. The philosophy behind compensation is that it aims to place the plaintiff in the position they would have been in had the injury not been sustained, as far as money is able to do this. Legislative provisions enable the relatives and dependants of a person who has died due to the negligence of a health professional to initiate an action for damages: Compensation to Relatives Act 1897 (NSW); Wrongs Act 1958 (Vic); Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic); Common Law Practices Act 1867 (Qld); Wrongs Act 1936 (SA); Fatal Accidents Act 1959 (WA); Fatal Accidents Act 1934 (Tas); Compensation (Fatal Injuries) Act 1968 (ACT); Compensation (Fatal Injuries) Act 1974 (NT). As an example, in the case of Alexander v Heise100 (referred to in the section in this chapter under Reasonable foreseeability) the wife of the deceased claimed under the Compensation to Relatives Act 1897 (NSW) for the death of her husband due to a cerebral haemorrhage. The wife made an appointment for her husband for a medical check up with her GP, however he died of an aneurysm the day before the appointment. The wife claimed unsuccessfully that had her husband been seen by the GP sooner than the arranged appointment date he may not have died.
Following are the types (also referred to as ‘heads’) of damage recognised by the court:
1 physical injury: harm to the body, the assessment of which will depend on the particular circumstances of the case and the quantum awarded in previous cases
2 pure economic loss: a purely financial loss which a plaintiff suffers due to the negligence of another
3 psychological and/or mental harm (nervous shock): this does not include grief but rather refers to a clinically demonstrable mental illness or disorder that renders the person unable to maintain their pre-event lifestyle. 101 In the cases of Tame v New South Wales102 and Annetts v Australian Stations Pty Ltd,103 the High Court held it is not a requirement of recovery in cases of pure psychiatric injury that there be a sudden ‘shock’. It is not necessary that the plaintiff sustain a physical injury in conjunction with the psychological damage to have it compensated. 104
A number of jurisdictions105 have reinstated the ‘normal fortitude’ rule in relation to psychological/mental harm. For example, s 32 of the Civil Liability Act 2002 (NSW) provides:
32 Mental harm-duty of care
(1) A person (‘the defendant’) does not owe a duty of care to another person (‘the plaintiff’) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.
(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
The assessment of damages is complicated and must be meticulously attended. This is because the system of compensation in Australia is in the form of a ‘once and for all’ lump sum payment. The plaintiff cannot come back to the court at a later time if the quantum of the damages was insufficient to meet the plaintiff’s needs or if it has been invested or spent inappropriately.
Damages are divided into specific damages and general damages. Specific damages are the actual costs the plaintiff has incurred, such as expenditure or lost wages as a result of the damage, from the time of the injury and at the time of the trial. This portion of the damages is the amount of expenditure already incurred and can be specifically identified. General damages are estimates of expenditure in the future flowing from the injury. These will include loss of future earnings, pain and suffering, loss of enjoyment of life, loss of expectation of life, anticipated costs of medical, nursing, diagnostic services, pharmaceutical, physiotherapy and rehabilitation. Recent legislative changes have imposed ‘thresholds’ and ‘caps’ on the award of damages.
The defendant will be liable for that damage which could reasonably be foreseen as a real risk; that is, damage which is not considered as too remote. The test of reasonable foreseeability serves to limit the damages for which the defendant will be liable. 106 Where the plaintiff has a particular susceptibility to injury, the defendant will be held responsible for the full extent of the damage which occurs. This is referred to as the egg shell skull principle, the rule that the plaintiff takes the victim as they find them and will be liable for the injury regardless of the severity, provided the type of injury itself was reasonably foreseeable. In 2003, the High Court of Australia handed down its decision in the case of Cattanach v Melchior (refer to the section in this chapter under duty to the unborn). 107 This case, on appeal from the Queensland Court of Appeal, involved a claim by parents to recover the costs of raising and maintaining their child who was unintentionally conceived due to the negligence of their medical practitioner. Mrs Melchior, who informed her doctor that she had had her right fallopian tube removed, underwent a tubal ligation on her left fallopian tube only. In fact, her right tube had not been removed, she became pregnant and successfully sued her doctor in negligence. In addition to compensation awarded for pain and suffering, loss of amenities, economic loss and special damages, the Supreme Court of Queensland awarded the plaintiff $105 249.33 for the costs associated with the raising of the child. The doctor appealed unsuccessfully to the Queensland Court of Appeal and to the High Court on the question as to whether the damages for past and future costs of raising a child were reasonable. The High Court held that the costs of raising a healthy child, who was unwanted, were recoverable. As previously noted (refer to the section in this chapter under duty to the unborn) such a claim is now precluded under civil liability legislation in a number of jurisdictions.
Exemplary damages where described by the High Court in Gray v Motor Accident Commission108 as ‘intended to punish the defendant and presumably to serve one or more of the objects of punishment, namely moral retribution or deterrence’. 109 Punitive damages, though invariably sought in medical negligence actions, are rarely successful and were not awarded in Australia until the case of Backwell v AAA (Backwell). 110 Punitive or exemplary damages are awarded to the plaintiff where the conduct of the defendant has been so excessively outrageous, gross or wanton as to warrant a penalty and warning from the court in the form of damages. Section 21 if the Civil Liability Act 2002 (NSW) preclude the award of exemplary or punitive damages, or damages in the nature of aggravated damages, in personal injury cases where the act or omission that caused the injury or death was negligence. In Queensland exemplary, punitive or aggravated damages cannot be awarded in personal injury damages unless the act causing the personal injury was an unlawful intentional act that intended to cause the injury sustained, or an unlawful sexual assault or other sexual misconduct. 111
Causation
The plaintiff must establish a causal relationship between the negligent conduct of the medical practitioner and the damage sustained by the plaintiff. The breach of the duty of care must be causally linked to the injury or no compensation will be payable. Questions of causation are questions of fact. In a healthcare context, this is often the most difficult element for the plaintiff to prove. The plaintiff must be able to prove that, on the balance of probabilities, the damage now claimed has been caused by the defendant’s conduct and is not in fact the natural progression of the underlying pathology, or the result of the plaintiff’s illness, disease or disorder.
The decision in the case of Barnett v Chelsea and Kensington Hospital112 established the ‘but for’ test as a means to determine if there was a causal relationship between the breach and the damage. Could the plaintiff prove that ‘but for’ the defendant’s negligence the plaintiff would not have suffered the injury? This test is now considered in combination with the ‘common sense’ approach113 as a means to determine the liability of the defendant.
In the Queensland Court of Appeal case of Green v Chenoweth, 114 the plaintiff claimed damages against a surgeon for failure to warn of the post-operative risk of adhesions following a myomectomy. The trial judge at first instance found on the evidence that even if the plaintiff had known of the risk she would have undergone the procedure. The Court of Appeal held that even if the plaintiff had received a warning she would still have consented to the surgery, although there was a chance she may have refused. Further, the negligent failure to warn of material risks cannot, standing alone, give rise to a cause of action. It must be proven, on the balance of probabilities, to have caused in some form of action or inaction the damage claimed by the plaintiff. The plaintiff’s appeal was dismissed.
In Black v Lipovac, 115 a fourteen-month-old child was prescribed aminophylline suppositories. After the administration of one of the suppositories the child suffered a fit and sustained significant neurological damage. The child by his ‘next friend’ (his parents) sued the general practitioner who had prescribed the aminophylline suppositories, the doctor who had administered an intramuscular injection of phenobarbitone soon after the fitting commenced, the ambulance officer who transported the child to the hospital and the manufacturer of the aminophylline. The action against the manufacturer alleged negligence in failing to provide adequate warning of the dangers of the drug on the packaging, and advise medical practitioners of the potential toxic side effects. The trial judge found on the evidence that only the child’s general practitioner who had initially prescribed the aminophylline suppositories had been negligent. Though the evidence confirmed that the manufacturer had failed to provide a warning as to the weight-related dependency of the dosage, and had failed to provide adequate written warnings on the packaging of the drug, they were not found to be liable for the child’s damage. The Court of Appeal upheld the initial decision as it could not be established that the lack of warning to either the doctor or the parents was causally linked to the damage that followed from the prescription for and administration of the drug.
As previously noted, the issue of causation has been specifically addressed by legislation in a number of jurisdictions. The panel reviewing the law of negligence in Australia in the late 1990s and early 2000 proposed the following recommendations:
• there are two elements that need to be established regarding a causal link between the alleged conduct and the damage:
1 factual causation: factually whether the negligent conduct played a part in bringing about the harm. The ‘but for test’ is not to be considered in isolation
2 scope of the liability: once it is established that negligence is the factual cause of the damage, the question is: what is the scope of the negligent person’s liability for that damage?
These recommendations have been adopted into legislation in Queensland, 116 Western Australia, 117 Tasmania, 118 the Australian Capital Territory, 119 South Australia120 and New South Wales. 121 In Victoria, 122 the plaintiff bears the burden of proving, on the civil standard of the balance of probabilities, any facts relevant to the issue of causation. As an example, s 13 of the Tasmanian Civil Liability Act 2002 states:
Division 3 — Causation 13. General principles
(1) Prerequisites for a decision that a breach of duty caused particular harm are as follows:
(a) the breach of duty was a necessary element of the occurrence of the harm (‘factual causation’);
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (‘scope of liability’).
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty, being a breach of duty that is established but which cannot be established as satisfying subsection (1)(a), should be taken as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.
In application therefore, factual causation is determined by whether ‘the breach of the duty was a “necessary condition” of the occurrence of the harm’. 123 In the case of Finch v Rogers124 the question before the New South Wales Supreme Court was precisely that, whether, as a matter of scientific fact, the breach of duty by the medical practitioner was a ‘necessary condition’ of the harm suffered by the patient. In this case the plaintiff was a patient who had undergone surgery for the removal of a testicle following a diagnosis of testicular cancer. The allegations of negligence were based on the failure of the medical practitioner to properly follow up and investigate the possibly that the tumour had metastasised. The plaintiff alleged that as a result of the delay by the medical practitioner he had been required to undergo an extra cycle of chemotherapy, which was accompanied by permanent tinnitus and peripheral neuropathy. The court held in relation to s 5D Civil Liability Act 2002 (NSW) at 147–8:
Addressing the issue of factual causation, but for the breach, and the delay which was the consequence of the breach, the following can be said. First, that Mr Finch would probably have been given Indiana BEP chemotherapy on Monday, 30 December 1996 or at the latest, Monday 6 January 1997. Second, that on either day, he would have been regarded as a good prognosis patient. Third, that given his response to chemotherapy (which was good) he would have needed only three cycles, not four; fourth, that he would not have suffered the disabling consequences of ototoxicity and neurotoxicity which were evident after the fourth cycle … I consider, that the Defendant’s negligence was a necessary condition of the harm that ensued … that it is appropriate that the scope of the defendant’s liability extend to the harm so caused … The consequences were in each case a foreseeable risk of the breach.
Apologies
Following an adverse event it had been the practice of many disciplines of health professionals to deny any knowledge of (or involvement in) the adverse event or refuse to admit that an adverse event had occurred. This was usually due to the perception that to recognise the adverse event or involvement in an adverse outcome is an admission of liability and may be used in future legal actions. All Australian states and territories have introduced statutory reform giving recognition to an ‘expression of regret’ or ‘apology’. It is important that medical practitioners are familiar with the legislative provisions in the states or territories in which they practice. As can be seen by the following, the use of particular language is very significant in ensuring that the apology or expression of regret is not an admission of liability. All health professionals, including medical practitioners, must familiarise themselves and understand the inter-relationship between the expression of regret or apology and the National Disclosure Policy (refer to Chapter 2, Safety and quality in health). The following provides an overview of the legislation pertaining to expressions of regret and apologies. Section 75 of the Civil Liability Act 1936 (SA) states:
75 Expression of regret
In proceedings in which damages are claimed for a tort, no admission of liability or fault is to be inferred from the fact that the defendant or a person for whose tort the defendant is liable expressed regret for the incident out of which the cause of action arose.
Under s 7 of the Tasmanian Civil Liability Act 2002:
(1) An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person –
(a) does not constitute an express or implied admission of fault or liability be the person in connection with that matter; and
(b) is not relevant to the determination of fault or liability in connection with the matter.
(2) Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.
(3) In this section,
‘apology’ means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, which does not contain an admission of fault in connection with the matter.
While the civil liability legislation in New South Wales and the Australian Capital Territory define an apology in a way that includes an admission of fault, in Queensland, Tasmania, Victoria, Western Australia and the Northern Territory an admission of fault is expressly excluded. The consequences of an apology or expression of regret are listed in Table 5.2.
| Legislation | Consequence | Admissibility in proceedings |
|---|---|---|
| Queensland Civil Liability Act 2003 s 72 | Allows an individual to express regret without concern that the expression of regret will be construed or used as an admission of liability. | Expression of regret is not admissible in proceedings. |
| New South Wales Civil Liability Act 2002 s 69 |
Does not constitute express or implied admission of fault or liability.
Is not relevant to the determination of fault or liability.
|
Not admissible in any civil proceedings as evidence of fault or liability. |
| Tasmania Civil Liability Act 2002 s 7(1) |
Does not constitute express or implied admission of fault or liability.
Is not relevant to the determination of fault or liability.
|
Not admissible in any civil proceedings as evidence of fault or liability. |
| Western Australian Civil Liability Act 2002 s 5AH |
Does not constitute express or implied admission of fault or liability.
Is not relevant to the determination of fault or liability.
|
Not admissible in any civil proceedings as evidence of fault or liability. |
| Victorian Wrongs Act 1958 s 14J (1) | In civil proceedings where death or injury is in issue or is relevant to an issue in fact or law the apology does not constitute liability for death or injury or admission of unprofessional conduct, carelessness, incompetence, or unsatisfactory professional performance. | Nothing in the section affects the admissibility of a statement with respect to a fact in issue or tending to establish a fact in issue. |
| Northern Territory Personal Injuries (Liability and Damages) Act 2003 s 13 | Section silent on consequence. | Not admissible as evidence. |
| South Australian Civil Liability Act 1936 s 75 | No admission of liability or fault to be inferred. | Section silent on admissibility. |
| Australian Capital Territory Civil Law (Wrongs) Act 2002 |
Is not (and must not be taken as) an express or implied admission of fault or liability.
Not relevant to deciding fault or liability.
|
Not admissible in any civil proceedings as evidence of fault or liability. |
Defences to an Action in Negligence
There are five commonly raised strategies in defending an action in negligence. The first is to deny or rebut at least one of the elements of the action. That is, the medical practitioner:
1 denies that a duty of care existed; or
2 establishes that the conduct and behaviour at the time of the incident was of a reasonable standard for a skilled professional; or
3 establishes that there was no damage suffered by the plaintiff; or
4 denies that there was a causal link between the conduct and the damage; or
5 establishes that the damage was not reasonably foreseeable.
The second defence lies in attempting to establish contributory negligence on the part of the plaintiff. Historically, contributory negligence amounted to a total defence. However, the defence is now referred to as a ‘partial defence’ which, if successful, results in the damages being divided amongst the number of persons held liable for the damage. This may include the plaintiff where their own conduct has in some way caused or contributed to the damage they are now claiming. The plaintiff effectively is under a duty of care to avoid being injured. The defendant seeking contribution from the plaintiff must establish, on the balance of probabilities, that the plaintiff contributed to their own injuries. As stated by Denning J in Froom v Butcher: 125
Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself …
It is for the judge to determine the percentage of the blame to be allocated to the plaintiff and the amount to be deducted from the damages. While contributory negligence is frequently raised in personal injury claims where seatbelts or motorbike helmets have not been worn at the time of the injury, it is most uncommon in a healthcare context. The defendant would be required to show that the patient conducted themselves in a negligent manner and thereby contributed to their own injuries. As an example, in the American case of Brockman v Harpole, 126 the Oregon Supreme Court held that a patient who had badgered the registered nurse about not wanting to wait while she was attempting to syringe his ear had contributed to the damage that occurred when his eardrum was punctured.
The third defence is known as volenti non fit injuria or voluntary assumption of risk. The defence requires that the plaintiff voluntarily assumed the risk of being injured by participating in the activity and therefore their injuries cannot found an action in negligence. This defence has its origins in employment law and has now been confined effectively to sporting activities. The defence is raised where a player is injured during a game or activity and all players are playing at the time by the rules. The defence is that the injured player voluntarily assumed the risk of injury in playing the game. Obviously patients and clients do not enter a hospital or health facility voluntarily assuming the risk of being injured. Therefore, the defence has no application in a healthcare context.
The fourth strategy is to claim that the action is out of time or statute barred. All jurisdictions have limitation periods after which, no matter how significant and severe the injury, an action cannot be initiated. As a general principle the time starts to run from when the plaintiff sustains the damage. However, the court has the discretion to extend the time in particular circumstances. 127 It has been recommended that the limitation period be calculated by what was referred to as the ‘date of discoverability’, which identifies the starting time as that date on which the plaintiff knew, or ought to have known, that the injury had occurred. Historically, the limitation period for minors did not start to run until the age of majority, which in all jurisdictions is 18 years. Therefore, in those states and territories with a 3-year limitation period, the person would have until they were twenty-one to commence an action in negligence and, in the other jurisdictions, until they were 24 years of age. The special rules that now apply to children and those with a disability are specific to each jurisdiction and all medical practitioners should consult the legislation in their particular jurisdiction. 128 The limitation period for personal injuries in all Australian jurisdictions is 3 years from the date on which the cause of action accrued or the date of discovery. As there are differences between the individual jurisdictions health professionals are advised to familiarise themselves with the provisions relevant to the state or territory in which they conduct their practice.
Finally, the defendant may join another defendant and show that, through that person or institution’s negligence, they are jointly liable for the damage. In the case of Jones v Manchester Corporation, 129 both the resident medical officer and the hospital board were held jointly liable for the negligence that resulted in the death of the patient. The medical officer had graduated from university some 6 months prior to her overdosing a patient with an intravenous anaesthetic. The hospital board, aware of her lack of experience, nevertheless rostered her to work alone in the Emergency Department overnight.
Vicarious Liability
The doctrine of vicarious liability is a common law concept and serves to shift the financial responsibility from the individual who has been found liable for the damage to another individual or entity that has a greater financial capacity to bear the loss. The policy consideration underpinning the doctrine is the recognition that an employer will be financially more capable than an employee of meeting the cost of compensating the plaintiff. Thus, within the healthcare system, the doctrine of vicarious liability transfers the responsibility for compensating the patient’s damages from the medical practitioner to the employer, who will be a hospital, healthcare facility, government agency or owner of a private healthcare provider.
The doctrine applies when an employee, in the course or scope of their employment, negligently injures a patient. An employer is vicariously liable for the torts of the employees but assumes no liability for independent contractors. The two tests therefore are:
1 Is the negligent individual an employee?
2 Did the negligent conduct occur within the course and scope of the employment?
Whether an individual is an employee will be determined through an examination of the relationship with the employer. Three tests are applied: the control test, the part and parcel of the organisation test and the multiple test. Historically, the control test determined the issue. However, the court now examines wider indicia to establish whether or not the person is an employee or an independent contractor.
The control test
The court looks to whether the employer has the legal authority to control the person, regardless of whether or not there is any attempt to exercise that control. In the case of Zuijs v Wirth Bros, 130 the High Court held that a trapeze artist was an employee for the purpose of workers’ compensation. The employer had attempted to escape liability by arguing that the work performed by the artist was beyond their control. The court stated:
The duties to perform may depend so much on professional skill or knowledge … or the necessity of the employee acting on his own responsibility may be evident, that little room for direction or command in detail may exist. But this is not the point. What matters is the lawful authority to command so far as there is scope for it.
From the perspective of a highly skilled medical practitioner, this decision is of great significance. The judgment clearly indicates that the employer will not be able to escape liability by arguing that the work is so complicated, specialised and technical that they did not have control and therefore are not in an employer–employee relationship. Provided the employer has the legal right to tell the individual where, when and how the work is to be done, the control test will be satisfied.
Part and parcel of the organisation test
This may be referred to as the ‘integration test’ or the ‘organisation test’ and alone will not determine the existence of an employer–employee relationship if the control test indicates an independent contractor rather than an employee. The test is applied in combination with other indicia of employment. 131 Effectively the court examines whether the person is part of the employer’s organisation.
In the case of Albrighton v Royal Prince Alfred Hospital, 132 a 15-year-old girl was admitted to the Royal Prince Alfred Hospital for corrective surgery to her spine. The procedure involved the application of a halopelvic traction. On her lower back she had a large hairy naevus over her spine which, it was suggested, indicated tethering to the spinal cord and adjacent structures with the risk of rupture and possible paraplegia if traction were applied. During the admission, she was seen by a neurosurgeon, who requested a second opinion. The traction was fitted prior to the examination by the consultant neurosurgeon and after five days the spinal cord was severed and the girl became a paraplegic. The girl sued the two doctors and the hospital as being vicariously liable for its employees. The hospital attempted to escape liability by claiming that the consultant neurosurgeon was not an employee but rather an independent contractor, a private practitioner beyond its control. On appeal, the Court of Appeal of the Supreme Court of New South Wales held that the hospital was vicariously liable for the doctor, stating as follows: 133
The control test is not now acceptable in its full vigour. Today, the uncontrollability of a person forming part of an organisation, as to the manner in which he performs his task, does not preclude recovery from the organisation, and does not preclude the finding of a relationship of master and servant, such as to make the former vicariously liable for the negligence of the latter.
The issue was also raised in Ellis v Wallsend Hospital. 134 In this case, the plaintiff successfully sued the surgeon for failing to warn her of possible paralysis pre-operatively.
Unfortunately, the doctor died, and his estate and insurance cover were not adequate to meet the claim. Mrs Ellis therefore sought to be compensated, under the doctrine of vicarious liability, by the hospital where the doctor had admitted her as a patient. In holding that the doctor was an independent contractor, the court considered the totality of the relationship between the doctor and the hospital. The court heard evidence that the doctor at all times carried on his own business, received no remuneration from the hospital, was paid directly by his patients and exchanged his medical services for the use of the hospital beds. Samuels JA stated: 135
I conclude that it [the totality of the relationship between the parties] points convincingly to the conclusion that in treating the appellant Dr Chambers was engaged in his own business and not the hospital’s. He was conducting his independent practice as a neurosurgeon and his relationship with the hospital was not one of employer and employee.
The multiple test
This is not a test as such but rather a collection of indicia that are consistent with the employer–employee relationship. The five elements considered by the court are as follows.
1 Is tax taken from the pay prior to receipt by the person?
2 Does the person receive sick leave?
3 Is there a superannuation contribution by the employer?
4 Does the employer provide the plant and equipment?
5 Is there an expectation of personal service?
The liability of the employer under the doctrine of vicarious liability is confined to the negligence of an employee in the ‘course and scope of their employment’. The term ‘course and scope of the employment’ is given a very broad application by the courts and includes all activities that the employee is authorised to do, even if carried out in an unauthorised manner. It is important, therefore, for medical practitioners to be clear about the activities they are and are not authorised to undertake. This will vary not only from institution to institution but also between different clinical units within the same institution. Hospital protocols and policies and guidelines are invaluable documents in relation to this element.
To be outside the course and scope of the employment, the health professional must be undertaking some activity that is so totally unrelated to the employment that they are a ‘stranger vis-a-vis the employer’. 136
Non-Delegable Duty of Care
Hospitals and healthcare facilities hold themselves out as providing a service to the consumers of healthcare. As such, hospitals owe a non-delegable duty of care to patients and clients. This duty is based on the relationship between the institution and the patient and therefore cannot be delegated to others.
In Kondis v State Transport Authority, 137 it was held that the employer owed a non-delegable duty of care to employees to maintain a safe system of work. In this case, an independent contractor injured an employee while operating a crane and the employer was held to be liable for the damage. The non-delegable duty is also owed to patients and cannot be devolved to employees. It is therefore separate and distinct from vicarious liability. As stated by Mason J in Kondis’s case138 the non-delegable duty arises:
because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.
A ‘special relationship’ giving rise to the existence of a non-delegable duty of care is said to exist between the hospital and the patient. This ‘special relationship’ exists because the hospital assumes the responsibility for the control, care and supervision of a patient or is so placed, in relation to a particular patient, as to assume a particular responsibility. The vulnerability and dependence of the patient on the hospital is fundamental to the ‘special relationship’ that goes to the existence of the non-delegable duty of care. 139 In Elliott v Bickerstaff, 140 it was held that this latter element was satisfied in the hospital–patient relationship as:
the patient is usually specially dependent or vulnerable in that … [they have] no relevant expertise and, rather like an employee, must put up with whatever the hospital subjects him to in fulfilling its undertaking, and perhaps it is thought that, by its arrangements, the hospital has ultimate control over what the patient is subjected to even though it does not control how the medical officers do their work.
In the healthcare context, this non-delegable duty imposes on the hospital or healthcare facility the obligation to employ adequate numbers of appropriately trained and skilled staff, ensuring that the plant and equipment is operational and safe, and that the patients are not exposed to any undue risk. However, statutory defences in most jurisdictions give public authorities a measure of protection from liability from harm that is the outcome of decisions about the allocation of scarce resources. 141
Alternative Actions
A patient or client may wish to pursue a claim for compensation through initiating an action under the Trade Practices Act 1974 (Cth). This use of consumer law, in a healthcare context, relieves the patient of the burden of having to prove that the medical practitioner behaved in a manner that was in breach of the standard of care. Section 52 of the Trade Practices Act 1974 (Cth) states: ‘a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive’.
The patient must bring the action within 3 years of acting upon the representation of the corporation. The plaintiff would argue that the corporation (the hospital) made a representation, for example, that the blood and blood products were not contaminated. The plaintiff then would have relied on the representation that was false and misleading and, as a result, sustained an injury.
The issue has been raised and resolved as to whether hospitals and other providers of healthcare services are corporations for the purpose of the legislation. 142 It has been held that, as hospitals trade in goods and services, they are corporations. This interpretation has been extended to individual health professionals across a number of disciplines including medicine. It appears that, if the services are exchanged for monetary reward, the professional will fall within the definition of ‘trade and commerce’ and become liable for action under the Act. 143
SCENARIO AND ACTIVITIES
Mr Butter is admitted to Shine Hospital for the removal of his diseased kidney. On the morning of Mr Butter’s surgery there has been a multi-vehicle accident. The operating theatre nurses and doctors have been working continually from 3 a.m. carrying out surgery on those injured in the accident. Two of the patients had sustained such significant injuries they had not survived their surgery. The operating theatres are still very busy as Mr Butter is checked in for his surgery. The nurse checked Mr Butter’s identification and consent. The nurse does not notice, until Mr Butter is anaesthetised, that his medical records do not contain the required pre-operative physical assessment form. The surgeon, who has been working since 4 a.m., was also the doctor who assessed Mr Butter the preceding night. He decides that he will proceed without the assessment form as he thinks that he has a clear memory of the examination he carried out on Mr Butter. The surgeon considers that the time required to retrieve the missing assessment form will only cause further delay in the operating schedule. The doctor mistakenly removes the wrong kidney. Almost simultaneously Mr Butter has a respiratory arrest and though he can be resuscitated he now only has one diseased kidney which will require almost immediate removal.
• What is the legal action Mr Butter is most likely to pursue?
• Identify all the elements necessary to win in the legal action you think Mr Butter will take. Include for each element the legal principles (from the case law) and legislative requirements (from the Acts of Parliament) that apply for Mr Butter to succeed in his case.
• Identify the possible arguments that you, as the nurse, doctor or hospital may use to defend yourself if you were a defendant in this action.
To ensure that you have identified and understood the key points of this chapter please answer the following questions.
1 What is the standard of proof in a civil action in negligence?
2 Identify the names of the parties in an action in negligence. For example, in most cases the patient will initiate the action and will be called the …, and the medical practitioner who was responsible for the care of the patient when the injury occurred will be called the ….
3 What are the elements necessary to succeed in an action in negligence?
4 What criteria must be satisfied to establish a duty of care between the patient and the medical practitioner?
5 In what circumstances may a medical practitioner owe a duty of care to an unborn infant?
6 Can you locate and identify the legislation in your particular jurisdiction which establishes the standard of care for professionals (www.austli.edu.au). Having done that, describe the standard of care required of a medical practitioner under that Act.
7 What sources of information would you access to identify the standard of care in a particular clinical area or in relation to a particular medical intervention?
8 In relation to the disclosure of risk, what information must be disclosed to a patient?
10 What is the legislative definition of causation in your jurisdiction?
11 Describe the concept of a non-delegable duty of care.
12 Discuss the elements necessary to establish that an employing healthcare facility is vicariously liable for an intern (employee).
13 What are the provisions for giving an ‘apology’ or ‘expression of regret’ in relation to an incident from which a cause of action in negligence may arise in your state or territory.
Further reading
Boston, T., ‘A hospital’s non-delegable duty of care’, Journal of Law and Medicine 10 (2003) 364.
Brophy, E., ‘Does a Doctor have a duty to provide information and advice about complementary and alternative medicine?’, Journal of Law and Medicine 10 (2003) 271.
Butler, D., ‘Once more into mire, dear friends: Determining the existence of a duty of care negligence’, National Law Review (2000) 3; Online. Available: http://web.nlr.com.au..
Chambers, K.; Krikorian, R., ‘Review of the final Ipp Report and its impact on health claims’, Australian Health Law Bulletin 11 (4) (2003) 37.
Cockburn, T.; Madden, B., ‘Intentional torts claims in medical cases’, Journal of Law and Medicine 13 (2006) 311.
Devereux, J., ‘Medical law report’, Journal of Law and Medicine 6 (1999) 331.
Devereux, J., Australian Medical Law. 3rd edn (2007) Routledge-Cavendish, AbingdonOxon.
Hirsch, D., ‘PD v Harvey: Revisiting a doctor’s duty of care to sexual partners’, Australian Health Law Bulletin 11 (10) (2003) 109.
Ipp, J.; et al., Review of the Law of Negligence. (2002) Australian Government, Department of Treasury; Online. Available: http://revofneg.treasury.gov.au/content/reports.asp..
Kennedy, E., ‘Punitive damages for medical negligence’, Australian Health Law Bulletin 8 (3) (1999) 27.
Madden, B., ‘Changes to the definition of negligence’, Australian Health Law Bulletin 12 (1) (2003) 6.
Madden, B.; Cockburn, T., ‘Duty to disclose medical error in Australia’, Health Law Bulletin 15 (2005) 19.
Magnussan, R.S., ‘Legal issues in teamwork: liability within medical teams and hierarchies in NSW’, Precedent 79 (2007) 10–17.
McDonald, B., ‘The common law of negligence’, Commercial Law Quarterly (2003) 12.
McIlwraith, J.; Madden, B., Healthcare and the Law. 4th edn (2006) Lawbook Co, Sydney.
Mendelson, D., A New Law of Torts. (2007) Oxford University Press, Melbourne.
Parker, M., ‘Reforming the law of medical negligence: solutions in search of a problem’, Torts Law Journal (2003) 136–164.
Skene, L., Law and Medical Practice. 2nd edn (2004) LexisNexis, Sydney.
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