AMA VICDOC Summer 2024 - Magazine - Page 77
KEY TAKEAWAYS
-
Polsen v Harrison provides clarity on
the interpretation of the language
under section 5O and emphasises that
what is considered “widely accepted”
in medical practice need not be
universally accepted.
The “widely accepted” test is
generally imprecise and requires
final judgment by the Court. Various
elements may impact a determination
that a practice is widely accepted
including the seniority of the expert,
practice, knowledge and experience.
The appeal judgment provided
clarification that a judge must be
satisfied that the questions asked of
the experts in conclave,
meet the parameters of the claim.
Essentially, the assumption that
the judge was required to prefer
one expert’s opinion over another
is inconsistent with the purpose of
section 5O. The purpose of the section
is to allow a judge to decide if the
expert evidence, even if conflicting,
demonstrates a basis for accepting
that the practice in question is
widely accepted.
While this is a New South Wales
decision, it is of interest in Victoria as
the standard of care for professionals
set out in section 5O in the New South
Wales legislation is replicated in section
59 of the Wrongs Act (1958) Vic).
This case is an important reminder
that expert opinion needs to be based
on and supported by the evidence,
as this is critical when assessing the
respective merits of expert opinion and
the issue of negligence. As always, this
brings in to focus the need for detailed
record keeping by clinicians which, in
turn, enables experts to base opinions
upon substantive evidence.
Level 9 | 360 Elizabeth Street
Melbourne Victoria 3000
Australia
T: +61 3 9498 6699
VI CD O C SU M M ER 2024
77
