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Court overturns decision that following clinical guidelines was “irrational”

David Pakchung, MBBS (Syd) MHA (UNSW) GCAppLaw (Qld) CertIT DipRACOG AssocDipAppSc (Ambulance), FRACMA, Head of Claims (QLD), Avant

Tuesday, 13 February 2024

Photo of emergency department from outside

This court decision caught the attention of many in the medical profession. It involved a case where doctors were initially found to be negligent because gentamicin was not prescribed as part of an antibiotic regime for a child with a fractured thumb, despite the regime being consistent with clinical guidelines.

Sadly, the child’s thumb was later amputated due to gangrene and his father brought a negligence claim against the relevant health district over the treatment.

The health district was ordered by the judge to pay over $240,000 in compensation after they found that the doctors should not have just followed the guidelines, but devised an appropriate antibiotic regime specific to the child’s case. The health district appealed the court’s decision and it was overturned.

Ultimately, this means doctors can rely on guidelines, so long as the practices in the guidelines are widely accepted in Australia.

How the child's injury was managed

The patient was eight years old and suffered an acute fracture of the distal part of his left thumb and an injured middle finger after falling on a wet cement floor. He was taken to his local hospital emergency department and was given pain medication, flucloxacillin and had his injuries temporarily dressed before being transported to another hospital, which is a tertiary referral trauma centre. On examination, it was decided he would undergo surgery that evening to further investigate the wound, for a washout and, if appropriate, fixate the fracture.

The child’s surgery was later postponed to the morning because of other emergency procedures that were of higher priority. He was put on intravenous cephazolin just before midnight.

The following morning, the child underwent a wound washout, K-wires were inserted to address the fracture, the extensor tendon and the nail beds of his injured fingers were repaired. After the surgery, he was placed back on intravenous cephazolin and upon being discharged was prescribed oral Augmentin Duo Forte 500mg.

The child was referred to the hospital’s plastics and hand clinic for a post-operative review.  During the period he attended the clinic, he developed superficial skin necrosis, then infection and gangrene of the thumb.

The issue before the court was whether the antibiotic regime the child was put on before his surgery was appropriate.

First judge rules going by the book as "irrational"

A medical professional is not considered negligent under the law if they can establish that at the time of addressing the medical issue they acted in a manner widely accepted in Australia as competent professional practice by peer professional opinion. However, this legal defence does not apply if the court considers the peer professional opinion is irrational.

The first judge stated the health district’s peer opinions that the antibiotic regime was competent professional practice because it was in line with Therapeutic Guidelines: Antibiotic, version 14, were “without soundly-based supporting reasoning” and “irrational”.

The judge instead preferred the family’s expert opinion that antibiotic treatment should be provided on a case-by-case basis. This would have led to gentamicin being considered as part of the treatment, and that clinical guidelines were not to be “adhered to slavishly, as a box-ticking exercise”.

While the antibiotics administered by the doctors were in line with the guidelines, the District Court judge decided that but for a failure to also administer gentamicin, the child “would most probably not have suffered the injurious effects of the infection, which ultimately resulted in the development of osteomyelitis and gangrene in his left thumb”. He consequently ordered the health district to pay the family $240,000 in compensation for the doctors' negligence.

Health district's successful appeal

The health district appealed this decision, and Court of Appeal judges determined the first judge was incorrect in concluding the health district’s peer opinions were irrational. The court recognised it was widely accepted practice in Australia not to administer gentamicin in a case such as this one, and overturned the initial decision.

The Court of Appeal ruled that the child’s father would, therefore, have to pay the trial and appeal court costs for the health district.

Key learnings

  • Guidelines can be relied upon when providing patient care, so long as the guidelines correspond with widely accepted practice in Australia.
  • If you are unsure about what course of treatment is best for the patient, seek advice or a second opinion from a peer that has dealt with similar presentation of the medical issue.
  • It is crucial to stay up to date with developments in the treatment and management of illnesses, diseases and other medical issues. Regularly attending department meetings or continuing education meetings are a great way of doing so, as well as reading research papers and articles in specialist and general journals, aside from being across the latest clinical guidelines.
More information

For medico-legal advice, please contact us on nca@avant.org.au or call 1800 128 268, 24/7 in emergencies.

Read our factsheet Medication-related claims - insights to reduce risks

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Disclaimers

The case discussed in this article is based on a real case. Certain information has been de-identified to preserve privacy and confidentiality.

IMPORTANT: This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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