Recent commentary on section 5PB of the Civil Liability Act

Legislative Context – Section 5PB

An act or omission of a health professional will not be negligent, if it is established that the act or omission was in accordance with a practice that, at the time, was widely accepted by their peers as competent professional practice. This is the case even if another practice which is widely accepted as competent professional practice, differs from or conflicts with the widely accepted practice the health professional acted or omitted to do something in accordance with.

A practice does not have to be universally accepted to be considered widely accepted as competent professional practice.

Section 5PB does not apply in relation to a health professional’s duty of care to obtain fully informed consent by warning of material risks of injury involved in a treatment and/or procedure.

Veitch v Connor [2023] WADC 38

Background

The decision in Veitch is somewhat different to our usual case summaries.

The decision concerns negligence of Ms Veitch’s solicitor (Mr Connor) in failing to progress a claim in tort against ophthalmologist, Dr William Ward, which was ultimately dismissed for want of prosecution.

However, the case is relevant as Gething DCJ, in assessing the Plaintiff’s lost opportunity to pursue her claim against Dr Ward, was required to determine whether Ms Veitch would have been successful in her original action. One of the main allegations against Dr Ward was that the surgical techniques he used were outside competent professional practice.

For context, Ms Veitch underwent extracapsular cataract extraction (the Surgery) performed by Dr Ward on 28 January 2011. Post-operatively, she unfortunately suffered from left cornea dysfunction and underwent a left corneal transplant in May 2012. She was subsequently advised that the tissue donor had blood cancer and Ms Veitch became concerned she would develop the same.

Ms Veitch instructed Mr Connor to commence proceedings against Dr Ward, but these proceedings were ultimately dismissed for a want of prosecution after Mr Connor failed to remove the matter from the Inactive Cases List.

In Ms Veitch’s original claim against Dr Ward, she relied on the following four causes of action:

1. a failure to warn of the material risks involved in the Surgery;
2. negligence in the choice of surgical techniques used to perform the Surgery, namely, Dr Ward should have performed a phacoemulsification with soft shell technique as opposed to extracapsular cataract extraction;
3. negligence in the manner in which Dr Ward carried out the Surgery; and
4. using the principle of res ipsa loquitur, negligence in the performance of the Surgery could be inferred by the Court from the fact of Ms Veitch’s left cornea dysfunction.

Ms Veitch’s failure to warn case has not been considered below, as it is not relevant for the purposes of the application of section 5PB.

Outcome

Gething DCJ referred to the following principles (amongst others) as decided in Mabior:

1. Section 5PB(1) appears to assume that, but for the circumstances of its operation, negligence may be found where a reasonable person would have taken precautions in accordance with section 5B of the CLA.
2. In order to engage Section 5PB, there must be at least some evidence as to the practice widely accepted by peers as competent professional practise. A plaintiff would be unsuccessful in their action, if a Court accepted that, in relation to an act or omission in issue, there was a practice widely accepted by the defendant’s peers as competent professional practise and the plaintiff did not prove the defendant failed to act in accordance with that practice.
3. Section 5PB(1) does not create a defence, but once there is evidence of a widely accepted practice supporting a defendant’s conduct, that practice will generally provide the standard against which the conduct of the defendant is to be judged unless the plaintiff proves otherwise.
4. If a plaintiff does not disprove the application of section 5PB(1), for example by establishing that the practise was not widely accepted or the defendant’s act or omission was not in accordance with that practice or the practice is so unreasonable that no reasonable health professional in the defendant’s position could have acted or omitted to do something in accordance with that practice, then the defendant is not liable.

Noting the above, Ms Veitch was required (in an effort to establish a lost opportunity to pursue her claim against Dr Ward) to prove that Dr Ward’s surgical techniques were not in accordance with a practice that, at the time, were widely accepted by his peers as competent professional practice.

Gething DCJ accepted competent professional practice may encompass more than one school of thought or treatment options or surgical techniques. Therefore, in order to overcome section 5PB, Ms Veitch was required to show that the surgical techniques employed by Dr Ward, and preferred by his expert (Dr Groeneveld), were not within the practice widely accepted by Dr Ward’s peers as competent professional practice. To do so, Ms Veitch had to prove that the opinion of Dr Groeneveld, who agreed that the Surgery was in accordance with a widely accepted practice, should be totally rejected.

Ultimately, there was no rational basis for a judge in the original claim to have wholly rejected the opinion of Dr Groeneveld.

Whilst there was evidence from Dr Arshinoff which suggested that another widely accepted practice was the use of two different viscoelastics and a phacoemulsification with soft shell technique, the evidence overall suggested it was a matter of surgical preference and did not preclude a finding that Dr Ward had acted in accordance with a widely accepted practice.

Given Dr Groneveld’s evidence accepted the Surgery was within a practice widely accepted by Dr Ward’s peers as competent professional practice, it was difficult to see how the Plaintiff could have successfully established Dr Ward’s surgical techniques were outside widely accepted practice. Accordingly, section 5PB would have precluded a finding of negligence.

Whilst Gething DCJ considered it was difficult to assess the Plaintiff as having any real prospect of success in her original claim, he held that she had lost the opportunity to pursue her claim against Dr Ward. The value of her lost opportunity was 10%.

Ultimately, if the Plaintiff had been wholly successful in the Original Action, she would have been awarded $42,678.00 in damages. Accordingly, the value of her lost opportunity was $4,267.80.

Implications

It may be that there are two or more alternative widely accepted practices. In those circumstances, where the decision to act in accordance with either practice is a matter of surgical preference, the choice of one over the other, will not necessarily mean a practitioner has failed to act in accordance with a widely accepted practice.

Expert evidence will be pivotal in establishing whether a practitioner has acted in accordance with a widely accepted practice, and ultimately, each case will be determined on its own facts.

To read the decision in Veitch v Connor [2023] WADC 38, click here. Note, the decision is pending appeal.