KEY TAKEAWAYS-Polsen v Harrison provides clarity onthe interpretation of the languageunder section 5O and emphasises thatwhat is considered “widely accepted”in medical practice need not beuniversally accepted.The “widely accepted” test isgenerally imprecise and requiresfinal judgment by the Court. Variouselements may impact a determinationthat a practice is widely acceptedincluding the seniority of the expert,practice, knowledge and experience.The appeal judgment providedclarification that a judge must besatisfied that the questions asked ofthe experts in conclave,meet the parameters of the claim.Essentially, the assumption thatthe judge was required to preferone expert’s opinion over anotheris inconsistent with the purpose ofsection 5O. The purpose of the sectionis to allow a judge to decide if theexpert evidence, even if conflicting,demonstrates a basis for acceptingthat the practice in question iswidely accepted.While this is a New South Walesdecision, it is of interest in Victoria asthe standard of care for professionalsset out in section 5O in the New SouthWales legislation is replicated in section59 of the Wrongs Act (1958) Vic).This case is an important reminderthat expert opinion needs to be basedon and supported by the evidence,as this is critical when assessing therespective merits of expert opinion andthe issue of negligence. As always, thisbrings in to focus the need for detailedrecord keeping by clinicians which, inturn, enables experts to base opinionsupon substantive evidence.Level 9 | 360 Elizabeth StreetMelbourne Victoria 3000AustraliaT: +61 3 9498 6699VI CD O C SU M M ER 202477
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