Section 22 of the Civil Liability Act (CLA) provides that a professional does not breach a duty of care if the behavior in question was widely accepted by  a significant number of respected practitioners in the field as competent professional practice (that is, it was in accordance with peer professional opinion).

Health practitioners frequently seek to rely upon s22 when defending claims alleging inadequate treatment.   The defence must be proven on the balance of probabilities, and is not easy to establish.  As is almost always the case in litigation, the factual background and the evidence will be critical.

This is illustrated by the recent decision of the Queensland Court of Appeal in Mules v Ferguson[1].  The factual background is tragic.  Ms Mules sought treatment from her general practitioner on a number of occasions in September 2008 for neck pain.  At the final consultation on 25 September 2008 Ms Mules was admitted to Cairns Private Hospital and the following day diagnosed with cryptococcal meningitis, which left her blind and deaf.

Ms Mules commenced proceedings against her general practitioner alleging that her illness should have been diagnosed earlier, and that this would have allowed her to avoid the resulting injuries.

Ms Mules' claim initially failed on the basis that although the trial judge considered that Dr Ferguson’s treatment fell short of what he found would have been reasonable care, the appropriate approach would not have resulted in earlier treatment and changed the outcome.  The trial judge also found that based on the evidence of the experienced general practitioners who gave evidence at the hearing, Dr Ferguson had established the peer professional opinion defence created by s22 of the CLA. 

Ms Mules' appealed against that decision to the Court of Appeal, which took a different view of the evidence.  It found that on close examination of the factual background, reasonable care required Dr Ferguson to perform a physical examination on 18 or 19 December.  She should also have taken greater account of Ms Mules' headaches.  The court found that these factors should have resulted in an earlier referral and a different outcome.

As to the peer professional opinion defence, the Court found that although there was evidence that experienced general practitioners considered Dr Ferguson’s approach was consistent with a reasonable standard of general practice, this assumed facts consistent with Dr Ferguson’s version of events.  While the trial judge did largely accept Dr Ferguson’s account, his findings differed from her account in that he found that there had been some complaint of headache by Ms Mules and that Dr Ferguson was aware of some reduction in Ms Mules’ range of neck movement. 

When these factors were taken into account, there was no evidence upon which the trial judge could be satisfied that Dr Ferguson had demonstrated that her actions were protected by the peer professional opinion defence.  The Court accordingly found in favour of Ms Mules.