The law of negligence
Introduction
The most common ground on which a health professional, hospital or health service might be
sued via court proceedings is negligence. Negligence is a type of civil (as opposed to criminal)
wrongdoing (i.e. a 'tort').
A person who is injured as a result of health care that he or she has received may be entitled to
monetary compensation (damages) if it can be proven, on the balance of probabilities, that the
health care professional who provided the care was negligent.
Before we examine issues of particular interest to participants in the Project, it will be helpful to
review the basic principles of the law of negligence. We will then apply those principles to the
specific circumstances of the Project.
The elements of an action in negligence
As noted above, adverse outcomes in health care are not uncommon. Even if a health care
professional has made a mistake, it can be very difficult for a patient to establish that the
professional has been negligent. All of the following elements of negligence need to be proven
before damages can be awarded:
1 There was a duty of care owed by the health care professional to the person.
2 There was a breach of that duty of care.
3 There was an injury which was caused by the breach in the duty of care.
4 The injury was reasonably foreseeable as a result of the breach.
Proof on the balance of probabilities requires a patient to establish that in the circumstances it
was more likely than not that negligence occurred. This is a lower standard of proof than
applies in criminal cases, where the prosecution must prove the case beyond reasonable doubt.
The existence of a duty of care
A patient who has been harmed must establish that the health care professional owed them a
duty of care. Whether a duty of care exists will in part depend on whether there is considered
to have been an assumption of responsibility and/or the nature of the relationship between the
parties.
In most cases involving health care provision, in particular those relevant to the Project, the
existence of a duty will be obvious. For example, a nurse who is rostered to duty in an urgent
care centre clearly owes a duty of care to a patient who presents to the centre requiring urgent
attention.
There are instances, however, where it may not be clear whether a duty of care was owed, so
the question becomes: what is the scope of the duty of care?
The circumstances in which the courts are willing to find that a duty of care exists are
expanding. This is said to be in line with increasing consumer awareness and expectations,
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technological advances, and trends in other jurisdictions. For instance, a doctor has been held
to owe a duty of care to the partner of his patient, whom he had never seen, for failing to
diagnose his patient's HIV infection and counsel his patient to be tested for the virus.13 Another
doctor has been found to owe a duty of care to the parents of his patient who alleged that they
incurred travel costs to obtain treatment for their daughter overseas as a result of the doctor not
informing them of a clinical trial which was locally available.
14
Later in this manual we will consider issues relevant to the Project such as the responsibility of
a GP to provide telephone advice or attend a patient at the request of a nurse. Underpinning
these issues are questions about the scope of the duty of care of the GP and of the nurse.
The standard of care
The duty owed to a patient by a health care professional is to exercise reasonable care. Falling
below the expected standard of care amounts to a breach of duty. This duty extends to all the
ways in which a health care professional is called upon to exercise his or her skill and
judgment, and includes examination, diagnosis, treatment and provision of information and
advice.
The standard of care in Victoria has now been defined in the Wrongs Act 1958 so that a
'professional is not negligent in providing 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 a significant number of respected practitioners in the field (peer professional
opinion) as competent professional practice in the circumstances'.15 The standard expected is
that of an ordinary skilled person exercising and professing to have that special skill.16 All other
states (but not the Northern Territory) have similar statutory provisions.
If there are differing peer professional opinions which are widely accepted by a number of
respected practitioners in the field, one or more of these opinions may be relied on; peer
professional opinion does not have to be universally accepted to be considered widely
accepted.
If reputable guidelines or standards exist that are relevant to a particular clinical situation,
they
are likely to be referred to by a court as evidence of the accepted standard of care. Guidelines
cannot be followed blindly, however, and all clinicians remain accountable for their clinical
judgement. The status of guidelines and related documents is explained in more detail later in
this manual.
Health care professionals generally will be judged, therefore, against the standards of care
accepted by their peers. 'Peer professional opinion' cannot be relied on, however, if the court
determines that the opinion is unreasonable - it is expected that this would only occur in rare
13 BT v Oei [1999] NSWSC 1082
14 McCann v Buck [2001] WASCA 78
15 Section 59 Wrongs Act 1958
16 This means that a person 'need not possess the highest expert skill at the risk of being found
negligent it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising
that particular art.' : Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at 121
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circumstances, for example when a court is satisfied that there is no logical basis to support a
body of expert opinion.
Breach of duty
A breach of the duty of care occurs when there is a departure from the standard described
above.
Some of the ways in which health care professionals have been found to breach their duty of
care include:
x failing to treat (adequately or at all);
x failing to diagnose;
x failing to advise or warn a patient of material risks associated with treatment;
x not keeping up to date with the current state of knowledge;
x failing to refer to a specialist where appropriate;
x failing to adopt recognised precautions;
x failing to attend or examine;
x failing to diagnose a condition (where a reasonably competent practitioner would not
have so failed);
x technical error in treatment;
x failure to communicate with other professionals; and
x poor delegation.
A court does not consider the motivation of the health care professional, in particular whether a
health care professional did his or her best to take care, or acted according to his or her best
judgment. The assessment of the standard of care is purely objective - was the care provided
reasonable in the circumstances?
The health professional's conduct is measured against a reasonable health professional in
respect of the specific task adopted, and not against his or her own specific level of competency
or experience.
17
A departure from common practice may provide evidence of negligence, but it is not conclusive
of itself. The ultimate test is that of reasonableness, in the context of the circumstances.
17 Wilsher v Essex Area Health Authority [1986] All ER 801
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Injury and causation
In order for negligence to be established, it must be shown that an injury occurred which
resulted from the breach of duty. The injury may be physical or psychiatric harm or economic
loss.
The basic test is whether, ‘but for’ the negligence, would the injury have occurred?; if the injury
would have occurred anyway, liability will not be proven.
Foreseeability
The final essential element in negligence claim is that the injury or loss which was suffered was
reasonably foreseeable, meaning that a reasonable person would have realised that it was
possible the breach could result in that particular injury or loss.
Damages
The result of a successful negligence claim is that the injured person receives monetary
compensation, called damages.
A person may recover damages to compensate for any financial loss resulting from the injury
('special damages'), but in order to recover damages for 'pain and suffering' ('general damages')
the person must demonstrate that he or she has sustained a 'significant injury' within the
meaning of the Wrongs Act 1958.
A person will have a 'significant injury' only if he or she can prove a physical injury which
comprises at least 5% permanent impairment of the whole body where the injury is physical, or
10% permanent impairment of the whole body where the injury is psychiatric.18 A person
cannot claim general damages for psychiatric injury, however, if it is secondary to a physical
injury.19
If the person does not have a significant injury they will be confined to a claim for economic loss
only, which generally will include past and future medical expenses, the cost of any services or
equipment required, loss of earnings and earning capacity and the cost of attendant care.
Negligence vs incompetence and culpability
Negligence does not mean that a health care professional is incompetent or morally culpable.
The risk of adverse events in health care is well documented and it is widely accepted that even
the most highly trained and competent health care professionals will make mistakes at times.
The challenge for hospitals and health services is to design their systems of care so that they
do not depend solely for their safety on the ability of the health care professionals that they
engage to perform perfectly, every time.
Mistakes will occur even within the best systems and some mistakes will lead to foreseeable
harm to patients, exposing the health care professional and/or the hospital or health service to a
18 Wrongs Act 1958, section 28LB, 28LE, 28LF
19 Wrongs Act 1958, section 28LJ
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claim of negligence. A finding of negligence merely means that in the particular circumstances,
on the balance of probabilities, the act or omission of the health care professional departed
from what was acceptable peer practice, or was considered by the court to be unreasonable
practice.
Further, not every mistake will amount to negligence. There can be differences in professional
opinion, and mistakes can be made even though a health care professional exercised their skill
to the required standard.
Most cases are settled out of court.
Less than 5% of cases proceed to judgment. Any payment
made to a plaintiff to discontinue their case is usually made with a denial of liability. It is
generally cheaper and less risky to dispose of a claim this way, since court hearings are costly,
stressful and unpredictable. Simply because a case is settled in this matter does not mean that
negligence is proved or admitted.
Negligence, therefore, is a legal concept that in almost all circumstances does not imply moral
culpability. Only in extremely rare cases might a health care professional be found to be
culpable, and that will be in circumstances where their behaviour amounted to recklessness. A
health care professional in these circumstances may be found guilty of criminal or culpable
negligence if it is proved beyond reasonable doubt (as opposed to the balance of probabilities,
which is the usual test for negligence) that they acted with reckless indifference to the welfare of
a person. A finding of criminal negligence implies moral culpability and must be distinguished
from the tort of negligence, discussed above.
Finally, while accountability is key, it is a separate and distinct concept from culpability.
Accountability means every health care professional must be able to take responsibility and
explain and/or justify their actions. All health care professionals, at all levels, are professionally
responsible for maintaining their competence and performance and limiting their scope of
clinical practice accordingly.
It is important that health care professionals are provided with appropriate support so that they
can practice safely. This should include the approval and implementation of policies,
procedures and guidelines that clearly define the expectations and scope of duty of health care
professionals, as provided for in the Project
