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.