11 June 2021
When the doctor gets it wrong
Many defendants or insurers will have experienced cases where a plaintiff may not have received optimal medical treatment after the accident which is the subject of the claim.
The treating doctor may have made the wrong choice of treatment entirely, or alternatively may have made the right choice but then implemented that option ineffectively. Had the doctor not made such a mistake, then the treatment expenses may have been much lower, or the plaintiff may have recovered from the accident and returned to work more quickly.
Either way, the actions of the treating doctor have proved costly for the defendant. Bartier Perry therefore regularly receive queries from defendants about whether they have a cause of action against the doctor.
The courts have made it clear that the starting point – and in the great majority of cases, the finishing point – is that any medical treatment which an injured person receives after an accident is regarded as a natural consequence of that accident.
In other words, the law states that the risk that an injured plaintiff might receive negligent medical treatment after an accident is a risk that is part and parcel of that accident.
The main case on the topic remains Mahony v J Kruschich (Demolitions) Pty Limited (1985) 156 CLR 522. A worker sued his employer, who in turn cross-claimed against the plaintiff’s doctor, alleging that the treatment provided to the plaintiff after the accident had been negligent.
The High Court said that, for there to be a break in the causal chain such as would make the doctor independently liable to the employer, the medical treatment needs to be inexcusably bad; completely outside the bounds of what any reputable medical practitioner might prescribe; obviously unnecessary or improper; or extravagant from the point of view of medical practice or hospital routine.
It can readily be seen that these criteria are very high hurdles for any defendant to meet if it wishes to cross-claim against the doctor; these standards mentioned by the High Court are far more demanding than merely establishing negligence i.e. the doctor made a mistake.
A further complication arises from the legal status of the defendant. If the defendant is an occupier of premises, and is not the employer of the plaintiff, then the sections in the Civil Liability Act which deal with causation need to be considered. However, if the defendant is the plaintiff’s employer, then the Civil Liability Act does not come into play.
An excellent example of how these principles work in practice can be found in Aquilina v NSW Insurance Ministerial Corporation (unreported, 1994). The plaintiff suffered back injuries in a motor vehicle accident. Unfortunately, the surgery which was performed on his back also left him with brain damage.
The driver who caused the motor vehicle accident was found by the Court to be liable not only for the back injuries, but also the brain damage arising from the doctor’s poor treatment. In other words, the poor treatment by the doctor was regarded as a foreseeable risk arising from the original motor vehicle accident.
On the other hand, there have been some cases where the treating doctor has been found to be independently liable to the plaintiff.
An example of this is where the work injury itself was caused by the doctor’s negligent advice in failing to advise the worker not to return to work, thereby causing a myocardial infarction while at work (see George v Survery  NSWSC 5). In fact, the doctor in that case admitted that his treatment of the plaintiff had been so poor as to come under the categories of incompetence mentioned by the High Court in Mahony.
Similarly, in Phung v Advanced Arbor Services Pty Limited  NSWCA 215, a worker suffered an injury to his mouth and jaw in the course of his employment. His employer arranged treatment by a dentist. Subsequently, another dental consultant said that the work done by the first dentist was completely unnecessary.
The workers compensation insurer of the employer kept making payments to the plaintiff, but ultimately sued the treating dentist, and was successful on the basis of unjust enrichment, breach of contract, and breaches of the Fair Trading Act and Trade Practices Act.
Remedies for a defendant
Importantly, the parties in Phung agreed that the employer could not simply launch a recovery action against the dentist under section 151Z of the Workers Compensation Act, because the original accident, and the treatment by the dentist, did not occur at the same time. This has been the case since Hood Constructions v Nicholas (1987) 9 NSWLR 60.
Indeed, a workers compensation insurer is prevented from creatively using the common law to circumvent the restrictions of statutory limitations to the right of indemnity or recovery; see GIO Australia Limited v Robson  42 NSWLR 439.
Another workers compensation insurer tried the ingenious tactic of alleging that the tortfeasor owed the worker’s employer a duty not to cause economic loss, in the form of workers compensation payments. Not surprisingly, this brave attempt met little favour in the Victorian Court of Appeal; see Scott v Bowyer (1998) 1 VR 207.
If that is so, then the employer is left to follow the path chosen by the employer in Phung. We think it is fair to say that the legal considerations which arose in that case are far more complex and unpredictable than is the case in the typical recovery under section 151Z.
The Phung judgment depended to an extent on its own facts, and we would not be at all confident that many employers could successfully follow the trail blazed by Advanced Arbor Services: it is clear that the rights of recovery by an employer are intended to be exclusively governed by section 151Z.
If in doubt, go without
The concept of causation is one of the most difficult principles in the law; there are various guidelines, but ultimately causation lies in the eye of the beholder.
In cases of poor medical treatment after an accident, the person who caused that accident is sometimes very keen to say that the injuries were in fact caused, largely or in part, by that poor treatment.
The facts of each case are of course different, and we can cast an eye over any particular facts if required. However, the law makes it quite clear that the aggrieved defendant should nearly always take a very deep breath, carefully consider the implications of cases like Mahony and Aquilina, and accept that the law in these situations runs strongly against the prospect of a successful claim by a defendant against the doctor.