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9 Feb 2023, by Amy Sarcevic
Proving that a hospital or medical practitioner has breached their duty of care is often front of mind for plaintiffs when bringing forward a medico legal dispute. In recent months, however, a number of high profile defendants throughout Australia have claimed victory in the face of clear, or even admitted, duty breaches.
From bone defects to terminal cancer, the medical context of these cases varies significantly. But in each one, the plaintiff was unable to prove causation, despite an escalation of poor outcomes.
Eliza Faulk, Partner at Makinson d’Apice Lawyers – and a speaker at this year’s Medico Legal Congress – believes these decisions could spur a new trend, in which causation is more widely cited in defence cases.
“In the past, defendants have often been reluctant to run a case on causation, so it is really interesting that some are now pursuing it more aggressively,” said Ms Faulk ahead of her speech at the Congress.
“One or two high profile decisions, like those seen recently in NSW and ACT, can give defendants more comfort that causation arguments will be thoroughly canvassed by courts.
“So, it is something for plaintiffs to be mindful of when bringing forward a dispute. Equally, something for defendants to consider giving more weight to in their investigations.”
New and improved treatments could accelerate the trend, she argues, as they begin to render medical mishaps, like diagnostic delays, inconsequential.
The reverse was seen in a recent case in the ACT, where a doctor who gave a delayed diagnosis for non-Hodgkinson’s lymphoma was forgiven by the court, on the basis that the delay made no impact on the patient’s life expectancy. Additionally, in a recent NSW case, where a radiologist admitted to having misread an X-ray, but the court determined his breach made no bearing on the patient’s outcome.
“In both cases, the prognosis would have been poor, regardless; but with emerging treatments, the prognosis could be good regardless,” Ms Faulk said. “So plaintiffs might have an increasingly tough time proving causation for death or (seemingly) unnecessary surgery, for example, following a medical error.”
Ms Faulk says the onus is now on plaintiffs to be more careful with the cases they bring; and not assume that because a breach has been established, that causation will follow.
“Now, more than ever, it is important to recognise that proving breach of duty is not enough. Yes, the doctor made a mistake, but has it caused the damage? This will require expert evidence and plaintiffs will want to ensure they have all of that covered before they bring proceedings.”
Where such cases are brought forward, defendants should thoroughly investigate that causal link, Ms Faulk advised.
“The tide appears to be turning, so fighting for causation could be a sensible move for defendants,” she concluded.
Hear more expert advice from Eliza Faulk at the upcoming 32nd annual Medico Legal Congress, hosted by Informa Connect.
This year’s event will feature Australia’s leading legal professionals, academics and hospital directors.
Learn more and register your place here.
About Eliza Faulk
Eliza has close to 25 years of experience in insurance law both as a practising lawyer and within corporate management. Over the last 20 years she has specialised in health and medical negligence working with Australia’s largest medical defence insurers, including as the NSW head of civil claims at Australia’s leading medical defence organisation.
Informa Connect Australia is the nation's leading event organiser. Our events comprise of large scale exhibitions, industry conferences and highly specialised corporate training.
