In October 2013, Mr Boxell experienced chest pain and was taken to the emergency department at Frankston Hospital (‘the Hospital’). Following examination, observation and investigation, no cause for Mr Boxell’s pain was found, and he was discharged without a diagnosis. The next day Mr Boxell died at home as a result of acute aortic dissection (‘AD’).
Mr Boxell’s wife and children alleged the defendant, Peninsula Health (who conducted and managed the Hospital) was negligent because it failed to consider and exclude AD as a cause for Mr Boxell’s presentation, and failed to perform a CT aortagram (‘CTA’), a definitive investigation for AD. The defendant argued that it considered the possibility of AD, but on the presenting history, physical examination and investigation results, there was no clinical basis for performing a CTA. Further, the defendant alleged that it acted in a manner widely accepted as competent professional practice and therefore was not negligent by reason of s 59 of the Wrongs Act 1958 (Vic).
The trial was focussed entirely upon liability with the following questions asked of the Court:
- Did the defendant consider AD a cause of Mr Boxell’s chest pain?
- Was the defendant negligent because it failed to perform a CTA to exclude or confirm AD?
- Was the defendant not negligent because it acted in a manner widely accepted by a significant number of respected practitioners in the field of emergency medicine as competent professional practice in the circumstances?
The defendant conceded causation, though the question of damages remained in dispute.
The Court considered expert evidence from numerous emergency physicians and cardiologists in relation to the central issues of the standard of reasonable care and competent professional practice. It found that on the basis of the presenting history and risk factors, competent professional practice would have included considering the diagnosis of AD with a high index of suspicion throughout the emergency presentation, teasing out the history of the onset and quality of pain in minute detail, and reconsidering the probability of AD before discharge. Because the Hospital did not take these steps, it could not be concluded that its conduct satisfied a standard of competent professional practice.
The Court concluded that it was not reasonable emergency practice to discharge Mr Boxell without diagnosis before performing a CTA to confirm or exclude AD. Acting reasonably, it was necessary for the Hospital to keep AD under consideration throughout the course of Mr Boxell’s attendance, when other possible serious causes for his presentation were eliminated or rendered less likely. There was a need for ongoing clinical curiosity as to the cause for the sudden, severe chest pain, and it was not reasonable to discharge Mr Boxell without a diagnosis before performing a CTA to confirm or exclude AD. Accordingly, the defendant was negligent.
The case is of particular interest because the Court provides helpful guidance on the operation of the ‘professional practice defence’ under s.59 of the Wrongs Act 1958 (Vic), comparable to s 5PB of the Civil Liability Act 2002 (WA).
Interestingly, the Court adopted a broader interpretation for the standard applicable and does not limit it to identifying a specific ‘practice’ that existed during the relevant time period (as is the case in WA). However, even with the broader interpretation, it seems that defendants will have difficulty obtaining sufficient proof to establish that the conduct was widely accepted as competent professional practice. The Court stated [at 34]:
“The text of s59(1) does not speak of ‘a practice’. A standard of competent professional practice in the circumstances is not limited to a specific practice, and may cover professional practice in a more general sense. However, it remains necessary for a defendant to establish a standard of care which was widely accepted in Australia at the time as competent professional practice responding to the particular circumstances in which the service was provided. … Where a defendant has responded to circumstances which involve a variety of factual considerations, or call for a series of subjective judgments, it may be difficult to prove a standard of response which was widely accepted at the time as competent professional practice by a significant number of respected professionals across Australia who do not themselves give evidence.”
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