Issue 34 / 3 September 2012

WHAT are the legal implications of performing treatment with no therapeutic benefit on a patient? Two recent cases provide some guidance.

The first emphasised patient autonomy. In Harris v Bellemore Paul Harris, injured in two motor vehicle accidents as a child, requested leg lengthening surgery as the normal growth of the bone in one leg was affected.

At age 30 years, he saw orthopaedic surgeon Dr Michael Bellemore, who asked him to undergo a psychiatric assessment, to which the patient agreed.

In the court case that ensued when Mr Harris sued Dr Bellemore for medical negligence it was agreed that, beyond lengthening of the right leg by 3 cm to match the left, the only purpose of the leg lengthening was to increase Mr Harris’ height. Mr Harris wanted to have both limbs lengthened by a further 8 cm to increase his height to equal that of his twin brother.

The case against Dr Bellemore was that it was negligent to offer such surgery because its likely benefits were not warranted by the potential risks “on any reasonable evaluation”. Mr Harris claimed that as a result of the treatment he suffered from a number of physical disabilities as well as an incapacitating psychiatric disability making him totally unfit for work for the rest of his life.

Dr Bellemore’s defence was that to analyse whether the surgery should have been offered by comparing the risks and notional objective benefits of purely cosmetic surgery flew in the face of the High Court’s acceptance of patient autonomy as the paramount consideration in determining the appropriate standard of care.

Mr Harris was partly successful in his claim because of an error in carrying out the surgery but not in regards to the agreement to perform the surgery. The trial judge said Mr Harris was entitled, and indeed was required, to make his own decision as to whether to proceed with the surgery. Dr Bellemore had tried to discourage Mr Harris from having the surgery intended to increase his height.

However, in the second case — Dean v Phung — involving dental work, the dentist recommended the treatment.

Todd Dean had suffered minor injuries to his front teeth when he was struck by a piece of wood at work. Dr Mark Phung recommended root canal therapy and crowns to all of Mr Dean’s teeth — performed at 53 consultations over the course of a year, costing almost $75 000, paid for by the workers compensation insurer. (These costs were later recovered in a separate case.)

The court noted that unchallenged expert opinion suggested one of two possible inferences: Dr Phung was so incompetent that he did not realise that the course of treatment was without clinical justification; or he either knew there was no clinical justification or did not care.

The court found the dentist probably did not believe at the time that he carried out the treatment that it was necessary, given the work injury suffered by Mr Dean. That finding led to a more generous award of damages to Mr Dean — more than $1.7 million — as civil liability legislation does not apply in cases of intentional acts done with intent to cause injury. In this case the injury was the non-therapeutic treatment.

The court also examined the issue of consent and found that where the nature of the procedure has been misrepresented, consent was vitiated. Dr Phung was found to have acted fraudulently, at least in the sense that he was reckless as to whether the treatment administered was either appropriate or necessary.

The unusual circumstances in Dean v Phung also came to the attention of the NSW Dental Tribunal, which made a finding of professional misconduct.

The distinction between Harris v Bellemore and Dean v Phung is reasonably clear — the difference between a patient requesting a procedure and a doctor suggesting it.

However, the full ramifications of the NSW Court of Appeal’s decision in Dean v Phung may reverberate in the future, particularly in overservicing disputes and perhaps more extreme examples of entrepreneurial medicine.

Mr Bill Madden is national practice group leader ― medical law with Slater & Gordon. He is also an adjunct fellow, School of Law, University of Western Sydney, senior fellow, Melbourne Law Masters, University of Melbourne and adjunct professor, School of Law, Queensland University of Technology.

Posted 3 September 2012

3 thoughts on “Bill Madden: Unnecessary treatment

  1. Anonymous says:

    This has implications for orthopaedic surgeons now who are fully aware of the rock-solid scientific evidence contra knee arthroscopies:
    http://doctorskeptic.blogspot.com.au/2012/06/knee-arthroscopy-in-arthrit

    Any insurer who covers orthopedic surgeons for this procedure should be very concerned.

  2. Harry Karipis says:

    The link to the Harris v Bellemore case is out of date as there was an appeal by the plaintiff was partially successful. For those that are interested and care see http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/196.html

  3. Bill Madden says:

    The author Bill Madden agrees with Harry Karipis that there was an appeal from the Harris v Bellemore judgment. However, the appeal did not interfere with the trial judge’s comment that Mr Harris was entitled, and indeed was required, to make his own decision as to whether to proceed with the surgery.

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