Judicial comment on
defensive medicine
Bill Madden
Structure
• Judicial comments (mostly appellate)
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1978 – Royal Commission (Pearson report)
1985 – Sidaway v Bethlem Hospital
1998 – Chappel v Hart
2000 – ‘Defensive lawyering’ (Arthur J S Hall)
• Legal framework
• Discussion points
Reference 1: Surgical procedure
• Chappel v Hart [1998] HCA 55
• Kirby J fn 113 - when legal principle requires it, take care not to create a false standard
of liability…which may have undesirable professional and social consequences.
• Article by Mendelson (transcript of argument), reference to MDU survey of doctors.
• Focus of decision was causation.
Reference 2: Sexual abuse reporting
• Sullivan v Moody [2001] HCA 59
• Transcript reference back to SASCFC CLT v Connon
• The fear of suit may lead to unnecessary tests and other procedures at great cost in
terms of delay and expense and the risk of the child.
• Focus of decision was duty (coherence).
Reference 3 & 4: Cancer diagnosis
• Schiller v Conah [2002] NSWSC 1264; Mouratidis v Brown [2002] FCAFC 33
• ‘Classic; argument: To conduct a `blind stab' would be a departure from standard
procedure. To hold otherwise would be to encourage the practise of `defensive medicine'
and lead to a higher false negative ratio, thus rendering the current system even less
reliable.
• Focus of decisions was on breach.
• Note: 2002 tort reforms, Salem & Forster article 2009 – Survey results suggest no
change in defensive medicine.
Reference 5: Psychiatric patient discharge
• Hunter Area Health Service & v Presland [2005] NSWCA 33
• Spigelman CJ: Evidence of defensive practices exists but court should be slow to conclude
a medical practitioner distort correct practices; in any event query incremental effect
given existing law.
• Santow JA: civil liability (for) decisions to restrain, is likely to induce a detrimentally
defensive frame of mind, undermining coherence of the statutory scheme.
• Focus on this issue was on duty (coherence).
Reference 6: Wrongful life
• Harriton v Stephens [2006] HCA 15
• Callinan J, narrow comment: ‘Defensive medicine, practised as a result of a decision
favourable to the appellant, could lead to a greater readiness on the part of practitioners
to counsel abortion’.
• Focus was on damage.
Reference 7: Loss of chance (1)
• Tabet v Gett [2010] HCA 12
• Passages in transcript of argument – question by Crennan J
• ‘… a shift of focus away from outcome and on to loss of a chance in terms of actionable damage,
that would inevitably encourage defensive medicine…’
• Long reply by B Walker SC.
• Lack of empirical evidence
• Inappropriate assumption as to medical practice
Reference 7: Loss of chance (2)
• Tabet v Gett [2010] HCA 12
• Crennan J at [102]:
• ‘…Policy considerations which tell against altering the present requirement of proof of causation in
cases of medical negligence include the prospect of thereby encouraging defensive medicine, the
impact of that on the Medicare system and private medical insurance schemes and the impact of
any change to the basis of liability on professional liability insurance of medical practitioners…’
Reference 8: Psychiatric patient
• ACT v Crowley [2012] ACTCA 52
• The claimant was mentally ill and was wielding a kendo stick as weapon in public, when
shot by a police officer.
• Presland revisited, summary of remarks of Spigelman CJ,
• Nothing more said on the topic of defensive medicine.
Definition by Studdert 2010
• ‘Tort scholars conceive of defensive medicine as “overdeterrence,” meaning that signals
from tort law lead physicians to take more precautions than are socially optimal
(considering both the injury-reducing potential of the precautions and their cost’.
Legal framework
• If defensive medicine relevant, in what context?
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Duty
Breach
Causation
Damage.
• Breach: the social utility of the activity that creates the risk of harm (if it goes beyond ‘a
reasonable person in the person’s position would have taken those precautions.
• Normative causation: ‘appropriate for the scope of the negligent person’s liability to
extend to the harm so caused’.
Discussion 1
• No decision turning solely on defensive medicine.
• Strongest comment Crennan J in Tabet v Gett .
• Policy considerations which tell against altering the present requirement of proof of
causation in cases of medical negligence include the prospect of thereby encouraging
defensive medicine, the impact of that on the Medicare system and private medical
insurance schemes and the impact of any change to the basis of liability on professional
liability insurance of medical practitioners.
Discussion 2
• Doubt as to practical effects.
• Spigelman CJ in Presland .
• The Court ought to be slow to conclude that a medical practitioner, acting true to his or
her profession, would permit the process of formulating a professional opinion to be
distorted by the prospect of civil liability.
• Supported by the Salem & Forster conclusions in 2009.
Discussion 3
• Incremental impact?.
• Spigelman CJ in Presland.
• The spectre of defensive medicine influences from a single case may not add much to
such judicial incentives as may already exist, to practise defensive medicine.
Discussion 4
• Caselaw lacks evidence to support submissions.
• Bret Walker SC during argument in Tabet .
• Defensive medicine submissions are ‘rarely if ever accompanied by anything in the nature
of even the most exiguous empirical demonstration from behaviour in systems benighted
by such forms of recovery that can be regarded as over defensive and due to doctors’
perceptions or medical administrators’ perceptions of that form of recovery’.
Discussion 5
• Sidaway 1985 (30 years ago).
• It may be that in matters of civil wrong or tort, courts are concerned with legal principle
and if policy problems emerge, they are best left to the legislature.