The NSW Court of Appeal overturned a finding of liability against a hospital, for an alleged failure to appropriately administer antibiotics to a patient. The hospital relied on the defence under s 5O of the Civil Liability Act 2002 (NSW) (the Act), that it had acted in a manner widely accepted as competent by peer professional opinion.

In Issue

  • Whether the professional opinion relied upon by the hospital in support of conservative antibiotic management was irrational

The Background

On 22 August 2011, Robert Gould (then eight years old) presented at the Campeltown Emergency Department with an open fracture to his left hand, sustained when he slipped and fell on wet cement. Mr Gould was transferred to Liverpool Hospital by ambulance at approximately 8pm for emergency surgery, and was seen by a doctor at approximately 10:30pm that night. There were two more serious cases that night requiring the use of the emergency operating theatre, and Mr Gould was not operated on until 8:30am the following morning. Despite an uneventful discharge following the procedure, gangrene developed in Mr Gould's thumb, which led to its amputation on 15 September 2011.

Relevantly, upon his arrival at Campeltown Hospital on 22 August 2011, Mr Gould had been administered with a penicillin-derived antibiotic (flucloxacillin). A cephalosporin (namely, cephazolin) was later administered to him at Liverpool Hospital, at around 11:55pm . No further antibiotic was administered that evening.

In March 2014, Mr Gould commenced proceedings by his tutor (his father), against the hospital, in the NSW District Court.

The Decision at Trial

In the NSW District Court Mr Gould obtained judgment in the sum of $240,930.10. The trial judge found that a number of breaches of duty had occurred but held that only one, the failure to "use an appropriate antibiotic regime including a second generation cephalosporin plus gentamicin", was causative of Mr Gould's injury. Specifically, it was held that the failure to administer an additional antibiotic drug, gentamicin (a gram-negative antibiotic), after the administration of cephalosporin, caused the infection to set in (which it was held led to the requirement for amputation).

The hospital had argued that the antibiotic regime adopted by it was one considered competent by peer professional opinion and that, pursuant to s 5O of the Act, it was not liable for the injury. The trial judge did not make an express finding about whether the hospital's actions were accepted as competent by peer professional opinion, but did find that both the hospital's experts opinions were irrational, and that s 5O could not therefore apply.

The Issues on Appeal to the NSW Supreme Court

The hospital appealed to the NSW Supreme Court of Appeal against the finding that s 5O did not apply, on the basis that the practice followed with respect to antibiotic administration (i.e. not to administer gram-negative antibiotics in Mr Gould''s circumstances) was not irrational pursuant to s 5O(2) of the Act.

The Decision on Appeal

The Court of Appeal noted that much of the evidence was agreed, and that the primary point of difference was whether it was competent practice to administer a cephalosporin antibiotic only in circumstances like Mr Gould's, as set out in the 2011 "Therapeutic Guidelines – Antibiotic" publication (which is based upon the WHO guidelines and recommendations). The Court of Appeal found the reasoning of the trial judge, that the opinions of the hospital's experts were irrational, could not be sustained, both because it was procedurally unfair and because the trial judge applied the wrong legal test.

The test employed by the trial judge equated inadequacy or insufficient explanation of reasoning with irrationality, which was held to be incorrect. The Court of Appeal noted "it is difficult to resist the inference that the primary judge conflated the ordinary process of resolving a conflict between competing expert opinions, with the entirely different process required by s 5O(2) of determining whether an opinion is “irrational”.

It was also found that, on the evidence actually presented at trial, Mr Gould failed to show that gentamicin actually should have been administered.

The appeal was therefore upheld.

Implications for you

This appeal decision reverses the problems brought about by the trial decision for health providers, particularly in the face of the global issue of anti-microbial resistance. A practical effect of the appeal decision is that it clarifies the requirements that a plaintiff must meet to establish that a peer professional opinion is irrational.