Determining Negligence in Medical Negligence Claims



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When treating any patient a doctor owes that patient a duty of care to ensure that the treatment they provide is to a reasonable standard of skill and care.

When things don’t go according to plan and the treatment causes an injury, it can be difficult to determine whether it is as a result of negligent care or an acceptable outcome of the treatment provided. There is a fine line between whether a doctor was negligent in providing treatment and whether he/she has in fact provided reasonable care.

This issue is dealt with by utilising Section 5O of the Civil Liability Act 2002 (NSW) (‘Civil Liability Act’).

Section 5O(1) of the Civil Liability Act provides that:

A person practising a profession (“a professional”) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

In a medical negligence claims, “a professional” can refer to a doctor or any other health care provider who provide treatment.

So what exactly does this mean?

Say that you decide to consult an Orthopedic Surgeon (a Surgeon who specialises in bones, joints, ligaments, muscles, nerves and tendons) after one year of experiencing pain in your right knee. Apart from the pain in your knee, you are generally of good health. During your consultation with the Surgeon, he performs an examination of your right knee and asks a series of questions relevant to your previous health and the history of the injury.

The Surgeon then refers you for a series of diagnostic tests, which include an x-ray and MRI of your knee. After receiving the results of the x-ray and MRI, the Surgeon recommends that you have knee replacement surgery. You consent to the procedure the Surgeon has recommended, and have the surgery.

After the surgery, you recover well and attend a number of follow up appointments with the Surgeon who constantly advises you that your right knee will continue to improve provided you regularly attend your scheduled physiotherapy sessions and perform the recommended exercises at home.

In the weeks following the surgery, despite attending all of your physiotherapy appointments and performing all of the recommended exercises at home, the range of motion in your knee improves very slowly. You consult the Orthopedic Surgeon who performs numerous additional tests and discovers that you have an extremely rare genetic muscle condition (1 in 1,000,000) that affects the muscles in your knee, which could not have been detected unless very sophisticated and expensive tests had been performed. This condition impacts the rehabilitation of your right knee.

In this scenario, the Surgeon will not be liable in negligence because no reasonable doctor in this position would have performed genetic testing to exclude this condition. The standard by which this is judged is known as ‘peer professional opinion’.

This is an example of how Section 5O of the Civil Liability Act would operate.

Obtaining an expert opinion

The above example raises the question of how we prove that a doctor has not acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. In medical negligence claims, this evidence is introduced by way of an expert opinion from a doctor in the relevant field in which the alleged negligence occurred.

Obtaining an expert opinion from a doctor is time consuming and difficult in a medical negligence claim. Firstly, we are required to collect detailed information on your medical history and past treatment. We must then carefully review this material, and prepare the information in the form of a chronology to be reviewed by an expert.

After this information has been prepared, we then approach an independent expert doctor comment on the treatment provided. This expert is independent in the sense that they do not know you or the doctor complained of.

Once the expert has reviewed the information, the doctor then provides a written report assessing whether the treatment was provided would be widely accepted in Australia as competent professional practice. If the expert does not believe that the doctor’s conduct was up to this standard, we can then rely on the opinion to start a case in Court.

Very few medical negligence cases are simple and often require considerable investigation by experienced legal professionals. If you or somebody you know has suffered a medical injury due to the negligence of a doctor or medical practitioner, you may be entitled to compensation. For more information, please call Stacks Goudkamp on 1800 251 800 to arrange a free, no-obligation assessment of your claim, or alternatively, make an online enquiry.



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