Issue 24 / 29 June 2015

IN 1374, a woman called Agnes of Stratton appeared before the London courts, seeking damages from a surgeon who had failed to deliver on a promise to repair her mangled hand for a reasonable fee.
The case was dismissed on a technicality but, as arguably the first medical negligence case in English law, it prompted the judge to set out some basic principles. These included that a physician should be held liable if a patient was harmed as a result of his [sic] negligence, but not if he had diligently applied himself even if that had not led to a cure.
Despite all the changes in medicine over the intervening centuries, to a large extent those principles are still with us.
Working out how to apply them, though, can be far from a simple matter, as a recent speech by High Court Justice Susan Kiefel makes clear.
Justice Kiefel starts her overview of medical negligence with the landmark 1992 case of Rogers v Whitaker, which centred on a doctor’s failure to warn of a treatment risk that later eventuated.
I suspect few doctors would be unaware of that case which, as Justice Kiefel says, “doubtless has been largely responsible for the abundance of information which is now routinely provided to patients about surgery or other treatment”.
Such complex and difficult cases, she says, are part of the ongoing, incremental evolution of the law relating to medical negligence: “each case… adds to the body of knowledge which may later become distilled as a rule, a test or a legal principle”.
You could equally describe them as part of an ongoing tug of war between two opposing forces.
Former High Court Justice Michael Kirby once described leaders of the medical and legal professions as like “two ancient vessels passing each other in the night” when it came to debating medical negligence issues.
“As is usually the case, neither side has a monopoly of wisdom”, he said, while acknowledging the trauma and frustration health professionals could experience in the face of negligence claims.
When the ancient vessels Justice Kirby described do come together in battle over particularly tricky legal questions, the High Court can end up being the venue.
Among the cases Justice Kiefel describes is a “wrongful life” suit brought on behalf of a child born with severe disabilities as a result of her mother’s undiagnosed rubella during pregnancy.
The court found against the child in that case, declaring that, although the mother would have terminated the pregnancy if she had been informed of the risk of disability, it was not possible to prove that non-existence would be better than the child’s current position.
From the tragic to the… well, it’s perhaps best I don’t insert an adjective here.
Another case saw a patient sue his surgeon after spinal surgery because he claimed he wasn’t warned of the risk of femoral neurapraxia or the less likely outcome of permanent paralysis if spinal nerves were damaged.
The patient developed neurapraxia but not paralysis. He argued that, although he would have accepted the neurapraxia risk if he had been warned of it, he would not have had the surgery if he had been warned of the paralysis risk.
In rejecting the case, the High Court compared his argument to that of a mountaineer who tackled a difficult climb after receiving negligent advice from a doctor that his knee was fit for the task — only to be injured in an avalanche. 
The mountaineer might not have undertaken the climb if he had received the correct advice about his knee but, Justice Kiefel asks: “Why should the doctor be held responsible for all the risks inherent in mountain climbing?”
Avalanches aside, one thing we can be sure of is that medical negligence law will continue to evolve, responding to new circumstances including those thrown up by social and technological change.
As Justice Kiefel says: “Who knows what the action for negligence will look like in another 100 years”. 
Jane McCredie is a Sydney-based science and medicine writer.

One thought on “Jane McCredie: Legal avalanches

  1. Dr Harry Haber says:

    Medical negligence needs a different approach to the present method of complaint. At present a complaint in NSW is sent via email to the complaints unit which then requests a reply to the doctor concerned . The doctor replies and the unit responds with a reply to the person making the complaint without allowing an opportunity to respond with a mediation approach even though there is provision for mediation in the regulations. If mediation and better explanation of the issues occurred , this could lead to more prompt resolution. A situation occurred to me where a patient sent an anonymous complaint to the complaints unit. The patient presented with a pigmented lesion on the face, I advised that I did not have microscopic vision to advise removal without referral to a dermatologist. The patient complained that I had POOR vision, obviously having misunderstood my comment of needing a biopsy with histological examination. The complaint unit rejected the complaint even though there would be an email address, so that I could reply and explain the misinterpretation.This just a simple example of better communication needed.

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