Health service found to have breached duty of care because it delayed treatment of an open fracture to the thumb of a eight-year-old child.

In Issue

  • Breach of duty of care by health service
  • Whether defence on basis of widely accepted professional practice available

The Background

The plaintiff, an eight-year-old boy, suffered a significant infection after presenting to the Liverpool Hospital (the Hospital) in Sydney with an open fracture to his thumb. The infection resulted in the amputation of a significant portion of the thumb. The plaintiff attributed the infection to unreasonable delays in treatment of his injury and commenced proceedings against the South Western Sydney Local Health District, which has legal responsibility for the actions of the Hospital. The defendant health service sought to raise a defence pursuant to s 5O(1) CLA (NSW), on the basis that its management of the plaintiff accorded with widely accepted professional practice. In doing so, the defendant placed significant reliance upon Australian therapeutic guidelines for administration of prophylactic antibiotics.

Decision at trial

The parties presented conflicting expert evidence in relation to treatment of open fractures. Ultimately, the trial judge discounted expert evidence submitted by the defendant on the basis that it relied on a reading of therapeutic guidelines that was too narrow. In making this finding the trial judge commented that the guidelines were (manifestly) only a guide and that regard should be had to the facts of the case and the gravity of the risk of ““horrendous” damage from infection” associated with failing to take a cautious approach to treatment.

The trial judge found that the Hospital should have reallocated resources or referred the patient to another health service when it became apparent that treatment could not be provided urgently. Its delay in effecting timely treatment of the plaintiff’s wound was unacceptable and constituted an escalating and continuing breach of duty for which it was liable in damages.

The court rejected the peer professional defence based on s 5O CLA (NSW) on the basis that the relevant peer professional opinion sought to be relied upon was considered by the court to be irrational.

Implications for you

Upon accepting referral of a patient, a health service is subject to a duty to take reasonable care to provide for that patient’s medical needs. Guidelines for professional conduct may be relevant to the standard of care owed, however will not necessarily be determinative of it. Decisions to act, or to take no action, must be weighed against potential consequences for the recipient of services.

Most Australia civil liability regimes contain a provision analogous to s 5O(1) of the NSW Act (Civil Liability Act 2003 (QLD), s 22(1); Civil Liability Act 1936 (SA), s 41(1); Civil Liability Act 2002 (TAS), s 22(1); Wrongs Act 1958 (VIC), s 59(1); Civil Liability Act 2002 (WA), s 5PB(1)). When assessing whether such a defence is available, regard must be had to the facts that were available at the time professional services were rendered, as well as the facts that were actually taken into consideration.

It is important to bear in mind that these statutory defences are subject to the overriding qualification that the relevant peer opinion must be rational and reasonable.