AMA VICDOC Summer 2024 - Magazine - Page 76
FAILURE TO UNDERTAKE
HANDS-ON EXAMINATION
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The court also considered the appellant’s
submissions that the respondent’s
experts did not address that a physical
examination was not undertaken prior to
discharge. It was found however, that the
respondent’s evidence did not contradict
the scope of the questions asked of the
experts. During the trial, evidence was
tendered by the nursing staff in charge of
the post-operative care of the patient and
an ICU doctor, who advised the respondent
of the appellant’s condition. No expert
raised concerns about this practice, nor
that the evidence of the medical staff
suggested incompetence and ultimately
the submissions lacked substance
on appeal.
ASSESSING THE MERIT OF
EXPERT OPINIONS
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The appeal submissions made by the
appellant suggested that it was the
function of the trial judge to conduct
analysis of the competing approaches
advocated by the experts and to decide
on their merits. The appeal judgment
confirmed that this was misconceived
and the judge’s function is to evaluate
all of the opinions and decide overall,
whether the expert evidence satisfies
the relevant criteria.
The Court highlighted that, in the
context of section 5O(3) of the Act, a court
is under no duty to compare the relative
merits of competing expert opinions.
There is express acknowledgment in
section 5O(3) that there can be “differing
peer professional opinions widely accepted
in Australia”. Although one avenue of
management might be preferred by some
experts, a different approach constituting
competent professional practice was
not inconsistent with satisfaction of the
section 5O standard. That some competent
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AMA VI C TO RIA
peers might have drained the haematoma
before discharging the plaintiff was not
inconsistent with satisfaction of the
section 5O standard.
The court noted that it is common
in negligence, where expert evidence
is tendered, to ensure that the experts
assess the correct “manner” of the
respondent’s medical services. In other
words, the experts must provide opinion
within the scope of the conduct, rather
than comment on action taken by the
medical practitioner that is not relevant
to the proceedings.
The court clarified that although there
may be conflicting views which refute a
standard of care expressed by experts,
this does not necessarily remove the
standard from being widely accepted.
In addition, the court determined that
this ground of appeal was no more than
an assumption. The assumption that the
judge was required to prefer one set of
opinions to another was inconsistent
with the language and purpose of section
5O of the Act. This formed a central
part in the court’s rejection of the
appellant’s submissions.
CONDITIONALITY OF EXPERT OPINIONS
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Finally, the appellant submitted that the
respondent’s experts expressed opinions
that were conditional. It was suggested
that the respondent’s expert opinions were
inadequate to support the respondent’s
conduct because their opinions were
coupled with conditions, namely that it was
a precondition to the appellant’s discharge
that she had been properly examined and
informed. The appellant submitted that
this condition was not satisfied. The appeal
judge considered this submission without
substantial basis, noting that the experts
explained and justified their opinions.
Ultimately, the court dismissed the
appeal by the appellant and ordered the
appellant pay the respondent’s costs.
