The advent of Covid 19 has brought into focus the past achievements of the medical profession in achieving almost miraculous advances in public health in the eradication of diseases through vaccination and other programmes.  It has also raised awareness of the limits of medical science in times of crisis at both a public and personal level.  The search for a vaccine to deliver us continues.   In the meantime, we can only place our hope in medical science in its present state of evolution to save us from an epidemic that does not appear to be well understood by our medical profession and defies our very existence by taking so many lives.

At what point should our medical profession, or those in charge of our public heath institutions, be brought to account for any limits or failings in their intervention.  The almost sacred position held by the medical profession in our society has partly come about through prior advances in medical science that have achieved so much for public health.  It also has its origins in Western European philosophy that has also informed the law of medical negligence.

Medical negligence is a branch of the law of professional negligence.  At traditional English common law, only three callings were recognised as “professions” – clergy, doctors and lawyers.   As other vocations, such as engineering and banking, have adopted some “professional” characteristics, professional negligence principles at common law have also been applied to some extent to those fields as well.

The fiduciary obligations of “utmost trust and confidence” are the defining feature of the professional relationship.  The rationale is that a patient or client (as in the case of a lawyer) must have absolute confidence in making full disclosure of all matters relevant to the retainer of the professional.   The personal information provided is held in the strictest confidence, as is the advice provided by the professional, with disclosure permitted only in limited circumstances.

The defining feature of the fiduciary relationship between professionals and their clients was explained by the High Court of Australia in Hospital Products Ltd v U.S. Surgical Corporation (1984) 8 ALJR 58, as requiring the elevation by professionals of their client’s interests above their own personal interests.

Apart from an overriding fiduciary obligation of trust and confidence, a duty of care owed by medical practitioner is determined to some extent by the structure and ethos of the medical profession.  The Hippocratic Oath to do no harm as well as the principles of medical science and practice have a role to play in defining the scope of the duty of care owed to patients.  It is not possible to find that a medical professional has been in breach of a duty of care owed to a patient unless the standard of that duty has been defined.

Medical practitioners receive a bachelor of medicine and bachelor of surgery (“MBBS”), undergo an induction as resident medical officer (“RMO” or “intern”) in a teaching hospital for 12 months before completing training as a registrar over a period of 4 years.  A medical practitioner may embark on general practice after completing some of the years of training as a registrar.  After completing all years of training as a registrar, a medical practitioner may continue training as a specialist over a period of 6 years through various colleges.  Those in specialist training may progress through the ranks as a fellow or staff specialist in a particular teaching hospital before seeking specialist consulting roles as a visiting medical officer (“VMO”) at a number of teaching hospitals.  The standard of care required of a medical practitioner may vary depending upon the extent of his or her training and experience.

Registrars carry out their duties as employees of statutory corporations that operate hospitals in various “local health districts” in New South Wales.  Those statutory corporations are usually sued for the negligence of employed registrars on the basis of vicarious liability.

A patient may be admitted as a public patient to a teaching hospital under a particular consultant.  Any medical or surgical treatment will usually be carried out by the registrars allocated to that consultant for training.  A consultant may actively participate in any medical or surgical treatment with the registrar or may merely be “on call” for assistance.  It is important to know whether the consultant played an active role in any surgical procedure at a public hospital in analysing a potential medical negligence claim.  It may be necessary to join the consultant as a defendant in addition to the public hospital.

A statutory corporation operating a public hospital will owe a non-delegable duty of care to a public patient who has not paid for medical services.  There will be no contractual relationship between the hospital and the patient to confirm the existence and define the scope of the duty of care.  The statutory corporation operating the public hospital will usually be liable for the negligence of an admitting or attending consultant who is not an employee of the hospital pursuant to principles of non-delegability.  These principles operate along the same lines as vicarious liability.

A consultant who admits his own private patient to a public hospital or private hospital will perform the surgical or other treatment himself pursuant to a contract with his private patient.   Any alleged breach of duty of care on the part of the consultant must be considered in accordance with the scope and nature of the contractual relationship with his or her private patient.

A physician in the medical profession carries out a primary diagnosing and treating role in managing a patient.   The physician will be responsible for the prescription of medication and may refer the patient to other specialities such as radiologists and pathologists or surgeons.   It is important to identify who is managing the patient and making treatment decisions.  These decisions may be based upon separate advice received from consulting radiologists and pathologists.  It may be necessary to join a consulting radiologist or pathologist for mis-interpreting or mis-reporting a radiograph or pathology sample.  A general practitioner may operate in the role of physician by arranging radiology and pathology or by referring the patient to a surgeon.   The roles and functions may overlap.

The standard of care required is measured according to the state of medical knowledge and practice prevailing at the time of the alleged negligent treatment.   At traditional English common law, the standard of care required was described in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 as:

“Ordinary care and skill on the part of a competent medical practitioner in the position of the defendant.” (the “Bolam Test”)

It was necessary under the Bolam Test to lead evidence from an expert witness, who was another doctor in the same field, on behalf of a plaintiff bringing a medical negligence claim as to the applicable standard of medical care required as well as whether the care actually provided fell short of that standard.  The defendant doctor would escape liability under the Bolam Test if he or she were able to establish through expert evidence from another doctor also in the same field that he or she acted:

“In accordance with a practice accepted at the time as proper and by a responsible body of medical opinion even though other doctors adopt a different practice (Sidaway v Board of Bethlehem Royal Hospital and Maudsley Hospital [1985] AC 871)

It can be seen from these principles for finding liability in negligence at common law against medical professionals that the standard of care applied allows for differences of opinion as to what may be “proper” so long as the relevant “difference of opinion” is held by a “responsible body” of their colleagues.  This “peer review” test has been adopted into the law of New South Wales, subject to some modification, by the following legislative provision in the Civil Liability Act 2002 that somewhat misleadingly refers to a “standard of care:”

5 O – Standard of Care for Professionals

  1. A person practising a profession (“a professional”) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
  2. However, peer professional opinion cannot be relied upon for the purposes of this section if the court considers that the opinion is irrational.
  3. The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent one or more (or all) of those opinions being relied upon for the purposes of that section.
  4. Peer professional opinion does not have to be universally accepted to be widely accepted.

Section 5 O (1) creates a defence to an action in medical negligence similar to that allowed under the Bolam Test at common law that allowed a medical professional to rely upon a difference of opinion as to the standard of care required that may exculpate him or her so long as it was widely although not necessarily universally held by his or her colleagues.  The main modification introduced by the legislation allows the Court to reject any such difference of opinion relied upon in defence should it be “irrational.” (5O (2))

It will be interesting to see how those who are aggrieved by public health interventions to Covid 19 will fare in seeking redress through the legal system against those managing the response to an epidemic that is not well understood by medical science and where there have been significant differences in opinion by public health officers as to how the response is to be managed.  The approach to management of the response appears to be a “trade off” between preservation of human life on the one hand and the maintenance of public finances and health infrastructure on the other.  At what point does the “trade off” fall foul of “widely held peer professional opinion” as to “competent medical practice.”  A comparison between the disastrous public health response in the United States of America to the relatively more successful response in Australia demonstrates the extremes of the “trade off.”  It is only the legal system that can bring public health officers and medical professionals to account for failing the public and it is the lawyer’s professional duty to do so.