Peer Professional Opinion Defence Rejected Again

by | Mar 10, 2019 | Health Blog

A recent NSW decision again considered the s.50 peer professional opinion defence in a claim by family members for pure mental harm following the death of their father.

Mr Frangie (the Deceased) suffered a heart attack at home. He was taken to Liverpool Hospital where, following investigations, it was found he had suffered a ST elevation myocardial infarct (STEMI). As it was likely that the Deceased had been suffering the heart attack for at least a day prior to attending hospital, his late presentation suggested that his prognosis was poor. He was discharged after 5 days, on 18 November 2016, but died at home on 21 November 2016.

The Plaintiffs’ alleged that the Hospital was negligent in that:

  1. upon discharge, the Deceased should have received a recommendation to utilise a wearable defibrillator;
  2. the Deceased should have been provided with the drug Eplerenone; and
  3. prior to discharge, the Deceased should have received further assessment by way of a cardiac MRI study.

In considering the s.50 defence relied upon by the Defendant, the Court stated that it was bound by the Court of Appeal decision in McKenna and the question to be asked was therefore whether there was a professional practice, or practices, in existence at the time of the Hospital’s treatment and management of the Deceased in relation to:

  • whether or not to utilise a vest defibrillator;
  • whether or not to recommend the drug Epleronone; and
  • whether or not to undertake a cardiac MRI prior to discharge.

In McKenna, McFarlan JA found that the s.50 defence was not available to the defendant as it was unable to identify features of the care provided sufficiently in common in a variety of situations such that it could be said that there was a ‘practice’ which could be deployed by a professional to deal with a given situation.

In the present case, the Court found that the evidence did not disclose any ‘practices’ that the Hospital conformed with, finding that what in fact occurred, was that the treating cardiologist developed a management plan, consisting of a number of miscellaneous components, to deal with the Deceased’s particular circumstances. It was acknowledged that the care provided must involve an individualised inquiry.

Whilst the Defendant submitted that peer professional opinion (widely held) would accept that the decisions about the choices made in that plan were reasonable, the Court found that this was insufficient to enliven s.50. The defence was therefore not available to the Defendant.

Despite this, on considering the evidence in the matter, the Court held that the Plaintiffs had not proved that the Defendant’s failure to do the matters alleged, was a breach of its duty of care. It found at [88] that the suggested precautions which the Plaintiffs said should have been undertaken by the Hospital to safeguard against the relevant risk, were not established to be suitable for the Deceased’s particular circumstances, and did not appear to be supportable more generally, at least in Australia. The trial judge stated that it would not be an exaggeration to say that the application of those precautions would, in the case of the Deceased, have verged upon experimental and it cannot be said the Hospital’s failure to take those precautions was unreasonable.

Further the Plaintiffs were unable to prove factual causation ie. that the performance by the Hospital of the matters alleged would, on the balance of probabilities, have prevented the Deceased’s death.

Frangie v South Western Sydney Local Health District trading as Liverpool Hospital [2019] NSWDC 42.

Gemma McGrath

Gemma McGrath