What is an ‘irrational’ medical opinion in a negligence claim?

Date: Apr 18, 2018

Medical negligence claims are well known for their complexity. Judges must make important decisions for a complicated field in which they likely have no previous professional experience.

The courts therefore rely on a panel of experts who provide opinions on standard industry practices. A judge must then weigh up any opposing views when ruling on whether negligence has occurred.

According to the Civil Liability Act 2002, a medical professional cannot be found liable if his actions are widely seen as acceptable practice by peers. But there is an exception: Section 50 of the Act says the courts can ignore peer professional opinion if it is deemed irrational.

How is a ruling of irrationality decided? A recent case that went before the NSW Court of Appeal has explored the issue in depth. Let’s take a look.

The original trial ruling

A teenager received $240,000 in compensation last year when Justice Leonard Levy ruled a hospital had been negligent when treating a complex crushing injury to his thumb when he was eight years old.

Eventually, the wound developed gangrene and the tip of the boy’s thumb was amputated. Our original summary of the case can be found here.

Justice Levy favoured the plaintiff’s medical experts over the defendant’s. He believed the defendant’s experts put forth irrational arguments about the acceptable standard of antibiotics care provided to the plaintiff.

A key point of contention was which antibiotics the boy should have received based on the circumstances of his accident and the injuries involved.

Was the appeal successful?

The hospital’s lawyers appealed the decision, arguing that Justice Levy had improperly used the irrationality defence. Three appellate judges agreed, ruling Justice Levy had committed procedural errors and mistakes in how he applied the irrationality test.

First, irrationality was not a matter raised by either the plaintiff or defendant at trial. It was considered procedurally unfair to only introduce the issue during his findings without allowing the parties to offer submissions. The appellate judges also disagreed with the judge’s definition of irrational. Justice Levy had referred to a dictionary to define the term but used the entry for ‘unreasonable’ rather than ‘irrational’ in doing so.

The Court of Appeal said the terms may have overlap but could not be considered synonyms. They also called upon legal precedence that showed dictionary definitions are rarely a convincing way of establishing statutory meanings.

Lastly, the appellate judges said the irrationality clause should only be called upon in very exceptional cases. It was seemingly designed for situations where a doctor’s opinion is at odds with the latest medical knowledge but many peers still adhere to an outdated practice. This was not such a case.

The appellate judges allowed the appeal, overturned the original compensation orders and dismissed the medical negligence claim.

Pursuing a medical negligence claim in NSW

Unfortunately, on this occasion, the plaintiff was unsuccessful in receiving damages, despite winning the first trial.

This particular case underlines the difficulties that arise in medical negligence claims and any subsequent appeals, which is why seeking legal advice from leading no-win, no-fee personal injury lawyers is key.

Please contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for a free consultation about your claim.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.