We are often asked about the likelihood of a medical negligence case proceeding to trial. In Victoria, medical negligence claims most commonly resolve at a mediation. Where a medical negligence claim does proceed to trial (or verdict), the judgment often provides useful insights into the operative function of the relevant sections of the Wrongs Act 1958 (Vic) (the Act) – the legislation that governs medical negligence claims.
In the Supreme Court of Victoria decision of Boxell v Peninsula Health  VSC 830 (Boxell), Justice Keogh provided valuable commentary on Section 59 of the Act which contains a defence that medical practitioners can rely upon in defending an allegation of negligence.
Peer Professional Opinion – a defence
If a medical practitioner can establish that they acted in a manner that was widely accepted in Australia as competent professional practice, by a significant number of respected practitioners in the field – also known as peer professional opinion – they will be found not negligent.
Justice Keogh sets out three elements that the medical practitioner must establish to rely on the peer professional opinion defence. These include:
- that the medical practitioner is a professional – this is not contentious in the majority of cases;
- the standard of care – this involves the medical practitioner calling experts to establish a standard of competent professional practice that is widely accepted by professionals in the same field; and
- that the medical practitioner acted in a manner which satisfies the standard of competent professional practice – in other words, that the medical practitioner’s actions and/or treatment was widely accepted by professionals in their field as described at point two.
If a medical practitioner can establish all three elements on the balance of probabilities and the Judge accepts this evidence over the Plaintiffs, the medical practitioner can rely on the defence to defeat an allegation of negligence.
Boxell & Ors v Peninsula Health  VSC 830 was a case brought by Mr Boxell’s family after his death occurred due to undiagnosed and untreated acute aortic dissection.
Mr Boxell had a history of chest pain in 2012. On 6 October 2013, he experienced chest pain and was transferred to Frankston Hospital by ambulance. Mr Boxell was seen in the Emergency Department by two junior doctors and a senior consultant. His treating team carried out examinations, observations and investigations that ultimately did not lead to a definitive cause of his pain. Mr Boxell was discharged without a diagnosis and the next day, he passed away at home as a result of an acute aortic dissection causing hemopericardium (blood within the pericardial cavity) and cardiac tamponade (fluid build-up within the pericardial sac).
The Plaintiffs alleged that the Defendant failed to appropriately treat Mr Boxell by neglecting to carry out a CT angiography to exclude the possibility of aortic dissection before discharge. The Defendant argued that Mr Boxell’s presenting symptoms did not indicate the need for a CT angiography nor, at the time of his attendance on 6 October 2013, require a differential diagnosis of aortic dissection.
Ten expert witnesses were called – six emergency physicians, two cardiologists, one cardiothoracic surgeon and one radiologist. Ultimately, although the evidence provided by the cardiologists was relevant, the evidence given by the emergency physicians was preferred in circumstances where the central issue in the case was the treatment provided by an emergency physician.
The Defendant failed to establish that it acted in a manner that was widely accepted by professionals in their field. Justice Keogh found in favour of the Plaintiffs concluding that it was not reasonable emergency practice to discharge Mr Boxell from the Emergency Department without diagnosis before performing a CT angiograph to confirm or exclude an aortic dissection.
This case highlighted that when preparing a case for the Plaintiff:
- it is imperative to obtain supportive evidence from an expert witness who has equivalent qualifications or experience as the Defendant medical practitioner. Evidence from medical practitioners who have differing credentials to the Defendant will still be relevant however the evidence from experts with the same or very similar expertise as the Defendant may be preferred or given greater weight;
- when preparing the letter of instruction and briefing material to an expert for their opinion, it is vital that the history of the matter is accurate, detailed and cross-checked with the medical records; and
- when briefing an expert for their opinion as to breach or causation, consider asking the expert to perform a literature search on relevant articles, published at the time or before the cause of action, that address and discuss the treatment in issue.
Patients (or a family member of a patient) who are considering commencing proceedings against a medical practitioner for injury or death due to negligent treatment, should note that in the majority of cases, the Defendant will obtain evidence to establish the elements required to rely upon the peer professional opinion defence.
The role of the Plaintiff lawyer is to test the credentials of the experts relied upon, investigate whether there is an alternative widely accepted peer professional opinion and make that evidence available to the court.
Brave Legal has considerable experience and expertise in investigating, preparing and resolving medical negligence claims. We are available to discuss a potential medical negligence claim and the implications of cases like Boxell so please contact us directly on 03 9070 9816.
 Section 59 Wrongs Act 1958 (Vic)
 Boxell & Ors v Peninsula Health  VSC 830 
 Boxell & Ors v Peninsula Health  VSC 830 
 Boxell & Ors v Peninsula Health  VSC 830