THE Full Court of the Supreme Court has ruled in favour of a Perth doctor who was sued by the family of a deceased patient because he refused to provide advice on a course of action he had advised against.
THE Full Court of the Supreme Court has ruled in favour of a Perth doctor who was sued by the family of a deceased patient because he refused to provide advice on a course of action he had advised against.
In a ruling which has significant ramifications for professionals outside the medical world, the court turned down an appeal, accepting that the duty of care owed by the specialist, an oncologist, did not extend to advice on how to pursue (in WA) treatment he had expressly advised against.
The appeal followed a WA District Court action which was won by the doctor last year.
The doctor’s lawyer, Neil McKerracher QC, had argued in Perth District Court that success for the patient would have had alarming ramifications for any professional adviser.
Mr McKerracher told that court the plaintiff was asking the Supreme Court to impose a duty on advisers that extended all previous boundaries.
Legal analysts suggested this extension could have included accountants, lawyers, engineers and architects, as well as doctors.
The patient, was 30 years of age when she contracted ovarian cancer. By 32 she had shadows indicative of secondary tumours on her lungs.
Her oncologist advised that there was no further treatment he could offer, except palliative care but a search of the Internet for alternative treatments revealed hope in the form of a radical surgical treatment offered by a doctor in the US.
The patient’s family raised the $108,000 needed to travel to the US to complete the treatment.
The Perth oncologist was sceptical of the treatment and advised the family against going to the US – his advice was not heeded.
Unbeknown to the oncologist, another doctor at Royal Perth Hospital was testing a treatment that was similar to, but not the same as, the US treatment.
Evidence given at the trial by the Royal Perth doctor indicated that the patient would not have been eligible for his treatment, because secondaries were already present.
Tragically, the patient died of the cancer in 1996.
Her father died shortly afterwards, leaving a widow who was mortgaged and driven to pursue her dying daughter’s last wish.
It was the family’s belief that even though the oncologist thought nothing further should be done, he still had a duty to ascertain whether there was any further treatment available, even if it was not yet public.
But the courts disagreed. In an earlier decision, Judge Roger Macknay, from the Perth District Court, said in his judgment: “To impose such a duty would be extremely onerous and productive of great uncertainty as to the extent of a medical practitioner’s duty of care to his patients.”
Last month, the Full Court of the Supreme Court agreed.
Cutting through the tragic circumstances of the case, Justice Neville Owen summed up by saying: “I accept the contention that the duty of care did not extend to giving advice on how to pursue (in this State) treatment which had been expressly advised against.”
In a ruling which has significant ramifications for professionals outside the medical world, the court turned down an appeal, accepting that the duty of care owed by the specialist, an oncologist, did not extend to advice on how to pursue (in WA) treatment he had expressly advised against.
The appeal followed a WA District Court action which was won by the doctor last year.
The doctor’s lawyer, Neil McKerracher QC, had argued in Perth District Court that success for the patient would have had alarming ramifications for any professional adviser.
Mr McKerracher told that court the plaintiff was asking the Supreme Court to impose a duty on advisers that extended all previous boundaries.
Legal analysts suggested this extension could have included accountants, lawyers, engineers and architects, as well as doctors.
The patient, was 30 years of age when she contracted ovarian cancer. By 32 she had shadows indicative of secondary tumours on her lungs.
Her oncologist advised that there was no further treatment he could offer, except palliative care but a search of the Internet for alternative treatments revealed hope in the form of a radical surgical treatment offered by a doctor in the US.
The patient’s family raised the $108,000 needed to travel to the US to complete the treatment.
The Perth oncologist was sceptical of the treatment and advised the family against going to the US – his advice was not heeded.
Unbeknown to the oncologist, another doctor at Royal Perth Hospital was testing a treatment that was similar to, but not the same as, the US treatment.
Evidence given at the trial by the Royal Perth doctor indicated that the patient would not have been eligible for his treatment, because secondaries were already present.
Tragically, the patient died of the cancer in 1996.
Her father died shortly afterwards, leaving a widow who was mortgaged and driven to pursue her dying daughter’s last wish.
It was the family’s belief that even though the oncologist thought nothing further should be done, he still had a duty to ascertain whether there was any further treatment available, even if it was not yet public.
But the courts disagreed. In an earlier decision, Judge Roger Macknay, from the Perth District Court, said in his judgment: “To impose such a duty would be extremely onerous and productive of great uncertainty as to the extent of a medical practitioner’s duty of care to his patients.”
Last month, the Full Court of the Supreme Court agreed.
Cutting through the tragic circumstances of the case, Justice Neville Owen summed up by saying: “I accept the contention that the duty of care did not extend to giving advice on how to pursue (in this State) treatment which had been expressly advised against.”
