ED release following discharge and in absence of ‘high level of suspicion’ causes death

The Supreme Court of Victoria has recently considered the scope of reasonable emergency medical practice, following the death of a patient released from an Emergency Department the previous day, without diagnosis. Although ultimately finding the defendant was negligent, the Court revisited the onus of establishing a peer professional defence and notably confirmed section 59 of the Wrongs Act 1958 (Vic) is broad enough to capture the response of a professional to a situation which calls for their expertise.

In Issue

• Did the defendant consider acute aortic dissection as a cause of chest pain?
• Whether the defendant was negligent in failing to perform a CT aortogram to exclude or confirm the diagnosis of acute aortic dissection
• Whether the defendant’s peer professional opinion defence under section 59 of the Wrongs Act 1958 (Vic) could succeed

The Background

In October 2013, Ronald Boxell (Mr Boxell) experienced chest pain and presented at the emergency department of a hospital (defendant). He was discharged the same day, without diagnosis (examination) and died the following day from acute aortic dissection (AD).

Mr Boxell’s wife and children alleged the defendant health service provider, as manager of the defendant breached its duty to Mr Boxell because its employee medical practitioners failed to consider and exclude AD as a cause of his pain, and failed to perform a CT aortogram (CTA). The defendant denied breaching its duty to Mr Boxell by arguing that its medical practitioners considered the possibility of AD, but on the presenting history, physical examination and results, there was no clinical basis for performing a CTA. It further denied it was negligent on the grounds that it acted in a manner widely accepted as competent professional practice within the meaning of section 59 of the Wrongs Act 1958 (Vic) (Act) (section 59 defence). The defendant conceded causation.

The Decision at Trial

The Supreme Court of Victoria (Court) considered extensive expert evidence and held that it was not reasonable emergency practice to discharge Mr Boxell without diagnosis, before performing a CTA to confirm or exclude AD. Consequently, by failing to perform a CTA, the defendant was found to be negligent, with damages to be assessed.

Notably, the Court elaborated on previous decisions¹ and clarified that the defendant bears the onus of proving a section 59 defence, which has the effect of establishing an alternative standard of ‘reasonable care’ in lieu of the alleged standard of ‘competent professional practice’. It was argued that a course of professional conduct does not constitute a ‘practice’ within the meaning of the section 59 defence so the defence does not apply, in circumstances where the ‘determination of the issue of negligence requires reference to a variety of factual circumstances’.² The defendant relied on the judgment of Sparks³ and stated that ‘competent professional practice’ is ‘broad enough to capture the response of a professional to a situation which calls for their expertise’.⁴ The Court agreed⁵ that section 59(1) is not limited to a specific practice and may cover professional practice in a general sense.

Whilst the experts could not agree on the reasonableness of the defendant’s discharge, the Court considered the experts’ consensus that Mr Boxell’s family history of aortic aneurysm (family history) would be considered a risk factor which ought to have presented a “high index of suspicion”. Whilst the relationship between the family history and presenting symptoms of chest pain were not well understood in 2013, the Court held that competent professional practice required the defendant to investigate the pain and family history in ‘minute detail’ and consider the probability of AD before discharge. The Court concluded that the defendant had not done so and therefore could not have assessed the risks/benefits of performing a CTA.

The Court found that by failing to consider the diagnosis of AD with a high level of suspicion and take further steps to confirm or exclude AD, the defendant did not act in a manner widely accepted as competent professional practice. The Court also found that the defendant breached its duty of care to Mr Boxell by failing to practice clinical curiosity as to the cause of his chest pain and discharging without a diagnosis, nor performing a CTA to confirm or exclude AD.

Implications for you

Previously, there was a risk for defendants that a section 59(1) defence could only apply to a specific practice or method of providing a professional service. This decision resolves that risk by determining that a section 59(1) defence can apply in the context of the response of a professional to any situation which calls for their expertise. It otherwise clarifies the evidentiary onus incumbent on a defendant when seeking to rely on a section 59 defence.

Boxell & Ors v Peninsula Health [2019] VSC 830