The crony (peer) defence takes a hit! (Mules v Ferguson)
I read with interest the Queensland Court of Appeals recent decision in relation to this matter. The Court of Appeal by a 2:1 majority overturned the trial judge’s earlier rejection of this medical negligence claim.
The case involved allegations of negligence against a general practitioner for failing to refer a patient ultimately found to suffer from cryptococcal meningitis. The patient suffered a catastrophic outcome due to such meningitis, including loss of sight and hearing. Damages were assessed [provisionally] at over $6.7 million by the primary trial judge.
The trial judge concluded that the GP had been negligent in not completing a careful neck examination and inquiry as to the patient’s progress, when she attended repeatedly.
Nonetheless, the trial judge dismissed the patient’s claim on the 2 basis that:
- Causation: even had the GP done what she ought and completed a careful neck examination and inquiry as to the patient’s headaches, etc., in the particular circumstances, such further steps would not have raised sufficient concerns to result in the patient being referred for a neurological review/assessment in time to receive treatment avoiding her catastrophic outcome.
- Peer Defence: Although he concluded the GP was negligent and should have completed a careful neck examination and further questioned the patient, he considered such GP had made out a defence under the Civil Liability Act on the basis that she had acted in a way, which was widely accepted by peer professional opinion.
The case is interesting in that as far as I know it was the only Australian case in which a trial judge has found that a medical practitioner’s care was negligent, but nonetheless excused it on the basis of such “peer defence.” This struck me at the time as an odd conclusion: in a way, the trial judge accepted the GP should have done something, but because a bunch of colleagues wouldn’t have done it either (and therefore, not surprisingly, thought she had acted reasonably), excused her.. I hate this defence!
Pleasingly for the patient, the Court of Appeal overturned the trial judge’s conclusions on each of these 2 points.
The appeal primarily centered on a careful review/analysis of the evidence as to whether, had the GP completed the examination and further inquiry she ought, this would have triggered an early referral. By a 2:1 majority the members of the Court of Appeal concluded [contrary to the trial judge] that it would.
The trial judge had accepted that if such a referral had occurred, the patient would have acted on it expeditiously and treatment would have taken place which would have avoided the catastrophic injuries she suffered due to her meningitis.
The members of the Court of Appeal also overturned the trial judge’s acceptance of the “peer defence”.
Interestingly, for future reference, the decision makes clear that for such a peer defence to be made out, the medical practitioner’s experts must confirm that the doctor’s conduct on the facts as found, was in accordance with peer professional opinion. It is not sufficient for experts to simply make a broad sweeping conclusion or to do so based on the medical practitioner’s claims as to what the patient told them and what they observed (if such claims are then [as here] not fully accepted).
The case highlights that making out such a peer defence will be quite a difficult and complex evidentiary task for defendants and their advisors. Where there are important primary disputes as to what took place during the relevant consultations, etc., the defence team will need to ensure confirmation of support for a peer defence across the cross section of likely findings open to the judge. Such likely findings may not be something necessarily obvious prior to the commencement of trial.
Predictably perhaps, in my view it is appropriate that this defence is given narrow application, once a trial judge is convinced that care was negligent – the situations in which doctors should be excused for failing to show reasonable care, because of peer practices, should be rare indeed..