Australia: Peer accepted practice: consideration of the term ‘widely accepted practice' for medical treatment

Wright v Minister for Health [2016] WADC 93

Key Points

• The Minister for Health relied on section 5PB of the Civil Liability Act 2002 (WA).
• Section 5PB provides a medical practitioner with a defence against allegations of negligence if the treatment they provided was a 'widely accepted practice' that is supported by 'a large group of the health professional's peers'.
• This case highlights the importance of providing appropriate literature to a Court in support of the treatment practice that is the subject of the litigation. The articles and opinions need to be weighted and relevant, and considered by respected experts in the field of medicine.
• Where there is more than one widely accepted practice, and in the absence of exceptional circumstances, the parties need only to prove that the treatment was appropriate in the circumstances and supported by a large body of medical experts in the same field.

Background

On 12 October 2010 Mr Wright (the plaintiff) suffered serious injury in a motorcycle accident. Among his numerous injuries he suffered a severe fracture to his heel bone or 'calcaneus'. The calcaneus assists with stabilising the foot during movement.

The staff at Fremantle Hospital (the Hospital) treated the heel bone fracture conservatively.

The plaintiff alleged that, except for a short period where surgery could not have been performed, the fractured heel should have been surgically corrected.

After discharge from the Hospital the plaintiff arranged undergo surgery on a private basis. The plaintiff alleged that the delay in surgery had left him in a worse state than if it was surgically corrected earlier.

The plaintiff alleged that the Hospital was negligent because it continued to treat the heel fracture conservatively. The Minister for Health did not dispute many of the facts of the case. The case turned on what constituted widely accepted practice.

The Minister for Health pleaded that the decision to treat the plaintiff conservatively on 13 October 2010, and subsequently on 16 November 2010, 13 December 2010, and on 17 January 2011, was in accordance with a practice that, at the time of those decisions, was widely accepted by orthopaedic surgeons as competent surgical practice.

The plaintiff's case was dismissed.

The Law

The plaintiff was required to prove that the Hospital was negligent when they opted to treat the plaintiff's heel fracture conservatively. They also alleged that earlier surgical treatment would have led to a better outcome.

The plaintiff had to provide evidence that no reasonable orthopaedic surgeon would treat a severe calcaneal fracture conservatively.

The defendant pleaded section 5PB of the Civil Liability Act 2002 (the Act). Section 5PB provides that the conduct of a health professional cannot be characterised as negligent if it was in accordance with a practice widely accepted by the health professional's peers as competent.

The court initially considered if the exceptions provided in section 5PB(4) applied to the 'widely accepted practice' standard. Sweeny DCJ determined that section 5BP(4) can only be relied upon in exceptional circumstances, where conduct is so unreasonable that no other practitioner could have acted in the same way.

To determine whether the conservative treatment was 'widely accepted practice' Sweeny DCJ looked very closely at the intention of this section of the Act and used extrinsic materials to construe the meaning of this section. The Learned Judge undertook a review of the explanatory memorandum of the Act, and a second reading speech.

The extrinsic materials emphasised that the intent of section 5PB of the Act was that the judgment of negligence for medical professionals would be determined by what constitutes 'widely accepted reasonable conduct'.

This 'modified Bolam test' provides that the 'professional practice' must be a reasonable peer opinion that can withstand logical analysis i.e. the fact that the distinguished experts in a field are of an opinion demonstrates the reasonableness of that opinion. Evidence that a practice is widely accepted is not established on the opinion of a few experts, but instead, it is the widely held opinion of the medical profession.

The Court must be satisfied that where there are questions of assessment of the relative risks and benefits of adopting a medical practice, a reasonable view assumes that the experts have weighed the risks and benefits in forming their opinion.

The Learned Judge also described the term in the ordinary sense of the words as 'if a large group of the health professional's peers regard a practice as representing competent practice, then the practice is widely accepted'. The practice does not need to be universally accepted. The practice also does not need to have been adopted by all of those peers in a similar situation, just that they recognise the practice as competent medical practice.

Where there may be two or more schools of thought on a treatment option, each may be considered to represent competent medical practice and be considered 'widely accepted'. It may come down to clinical judgement in an individual case to decide which widely accepted treatment is appropriate in the circumstances. In this case the Minister did not try to establish that conservative treatment was the only widely accepted method of treating a comminuted fracture of the calcaneus in 2010.

To reach a determination the Learned Judge undertook a substantial review of the medical literature and the expert reports provided by the parties. He identified that articles provided to the court for consideration are weighted according to the research methods employed by the authors, and referred to the guidance of an evidence table e.g.:

• Level I are randomised control trials and the review of those trials;
• Level II are prospective cohort studies, or smaller randomised control trials;
• Level III are case control studies where patients with a particular outcome re compared with those who do not share that outcome;
• Level IV are case series with no control group; and
• Level V are expert opinions.

Randomised control trials are uniformly considered the best evidence. Expert opinions, that involve assessment of an individual patient, have the least evidential impact. Articles that are published subsequent to the treatment in question are not insignificant if they summarise past acceptable treatment options or set out prior medical opinion.

In this case the Learned Judge assessed each article and expert report he was presented with to determine what treatment, at the time of the incident, was 'widely accepted'.

The evidence proved that there was more than one accepted practice for an orthopaedic surgeon treating a severe calcaneal fracture.

Sweeny DCJ found that there was adequate evidence to indicate that conservative treatment of a calcaneus fracture was a 'widely accepted practice' among orthopaedic surgeons.

Conclusion

This District Court decision provided a detailed examination of the intention and application of section 5PB of the Act.

The Learned Judge emphasised the importance of providing the best supporting evidence, where it is available, to prove that a treatment practice was 'widely accepted practice'.

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