We regularly hear of cases where patients have sought and obtained medical treatment, but something has gone wrong and the outcome has been a poor one. Often when complications arise, more serious medical problems or even death can result. That can be tragic.
Having said that, it is also very clear that not every adverse medical outcome is the result of a breach of duty of care on the part of the medical practitioner or other provider. There are many situations where a complication arises simply because it is an accepted risk of the medical treatment being administered. All of us have been in situations where we have to undergo a medical procedure and the risks of that procedure are outlined to us. Indeed, it is commonplace now for all treatment providers to outline in detail the risks of the procedure, which is entirely proper so that the patient can make an informed decision about going ahead with the procedure. Clearly, in a life-threatening situation, there may be little or no choice about having the procedure.
The law has grappled with how to establish if an adverse outcome arose from a breach of duty on the part of the doctor or other treatment provider. In the ACT, there is a law which sets down some principles governing claims for damages such as in relation to adverse medical outcomes. That law, the Civil Law (Wrongs) Act 2002, provides that in deciding whether a person was negligent the standard of care required of that person is that of ‘a reasonable person in the defendant’s position who was in possession of all of the information that the [person] either had, or reasonably ought to have had, at the time of the incident out of which the harm arose’.
Almost all medical cases involve the provision of expert evidence. That expert evidence needs to be from an expert in the particular field of medicine or medical treatment that is the subject of the claim. There can be differing opinions within the medical profession about what was appropriate or was inappropriate. Often a court is called upon to exercise the difficult role of deciding between competing views. One thing is clear, however, and that is that in almost all cases, there is a need to carefully consider who is to provide the expert evidence and to ensure that it is from someone who can comment on what the particular doctor or other health provider should have done, being in possession of the information that they had and also having the particular expertise required to perform that procedure.
An interesting High Court case this year has shown how different judges can have different opinions. This case is interesting because it involved a young woman who suffered a severe asthma attack and was treated by ambulance officers. The ambulance officers administered a particular drug and not adrenaline. The woman suffered severe brain damage as a result. Initially, the Supreme Court of Queensland found in favour of the employers of the ambulance officer on the basis that the relevant and predominant opinion at the time was that the administration of adrenaline in circumstances like those facing this woman was inappropriate, as she had a high heart rate and blood pressure.
On appeal, however, the Court of Appeal in Queensland found that there was a Clinical Practice Manual for ambulance officers which would have suggested the appropriate course was the administration of the adrenaline and that the failure to do so was a breach of the ambulance officer’s duty of care. The failure of the ambulance officer to administer the adrenaline amounted to negligence.
Finally, the High Court allowed further review of the decision and reinstated the original decision that there was no negligence. The High Court found that it was contrary to law to treat the Clinical Practice Manual as determining the standard of care in the face of other expert evidence on that subject. The High Court, therefore, found that the ambulance officer had acted reasonably and there was no breach of duty of care.
This case demonstrates how difficult it can be to prove that a breach of duty has arisen. Each case involves a careful consideration of all of the circumstances, including all of the medical records and documents and obtaining proper, current and clear expert evidence about the standard that should be applied.
How can we help?
If you have been in involved in a medical treatment where you think you may be entitled to compensation, please contact our Personal Injury team on 02 6285 8000 or by email.
