Crossing the Boundaries:from negligence to intentional torts

from discipline to crime

Bill Madden National Practice Group Leader Medical Law, Slater & Gordon

Associate Professor Tina CockburnQUT Health Law Research Centre

PART ONE: FROM NEGLIGENCE TO INTENTIONAL TORTS

Intentional Torts in Medical Cases: Overview

Negligence vs Trespass

Case study: Reeves v R

Case study: Dean v Phung

The future

Negligence vs Trespass

Civil Claims: Tort law negligence and trespass

Function of the law of torts:

promote individual rights

Parties:

patient (plaintiff) v doctor/hospital (defendant)

Standard of proof:

Civil standard – balance of probabilities

Onus of proof:

Plaintiff must prove case

Remedies

Monetary compensation - award of damages

Autonomy > consent

"[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault". Schloendorff v Society of New York Hospital 211 NY 125 (1914) per Cardozo

J at 129.

Negligence or trespass?Consent vs informed consent?

“Anglo Australian law has rightly taken the view that an allegation that risks inherent in a medical procedure have not been disclosed to the patient can only be founded in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed.”

Rogers v Whitaker (1992) 175 CLR 479 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ at 490

“Consent is validly given in respect of medical treatment in circumstances where the patient has been given basic information as to the nature of the proposed procedure. “ Dean v Phung [2012] NSWCA 223 at [60] per Basten JA

“The nature of the consent to a medical procedure that is required in order to negative the offence of battery is described in the joint reasons in Rogers v Whitaker. It is sufficient that the patient consents to the procedure having been advised in broad terms of its nature.” Reeves v The Queen [2013] HCA 57 at [35]

Case study: Reeves v R

Reeves v The Queen[2013] HCA 57

Gynaecologist, Reeves (applicant, A) performed vulvectomy on patient (CDW)

CDW referred to A for treatment of precancerous lesion.

Prosecution alleged that CDW agreed to surgical removal of small piece of skin containing lesion but not removal of entire vulva, including her labia and clitoris.

A convicted of maliciously inflicting grievous bodily harm with intent: s33 Crimes Act 1900 (NSW).

Reeves v The Queen[2013] HCA 57

Appeal to High Court

Q: Did A have lawful cause or excuse?

No lawful cause or excuse if prove:

A performed surgery, knowing that it was not proper surgery for CDW‟s benefit (unwarranted surgery case)

A did not honestly believe that he had CDWs consent to the surgery (consent case): [4]

Reeves v The Queen[2013] HCA 57

Directions to jury

directions on "informed consent“:

"There will not be 'lawful cause or excuse' for the surgery performed by the [applicant] if the Crown proves beyond reasonable doubt that the [applicant] did not honestly believe at the time of the operation that the patient had given her informed consent to the full extent of the operation, including removal of the labia and clitoris".

Directions as to "What Does 'Informed Consent' mean?:

"To be valid, consent must be 'informed'. This means that the medical practitioner must at least explain to the patient the purpose of the operation, the part or parts of the body to be cut or removed, the possible major consequences of the operation, and any options or alternative treatments which may be reasonably available.”

Reeves v The Queen[2013] HCA 57

“Provided CDW was informed that the surgery involved the removal of her labia and clitoris, the applicant had a lawful cause or excuse for performing it. This was so regardless of any failure to inform CDW of its possible major consequences and any alternative treatments. A failure in either of these respects might be a breach of the applicant's common law duty of care exposing him to liability in negligence but it would not vitiate the consent to the surgery.” [35]

Reeves v The Queen[2013] HCA 57

Consent issue: Did prosecution exclude beyond reasonable doubt that CDW had been informed that the surgery involved the removal of her vulva, including her labia and clitoris.

Held: Court of Criminal Appeal did not err in holding that misdirection did not occasion a substantial miscarriage of justice.

appeal against conviction dismissed.

Case study: Dean v Phung

Dean v Phung[2012] NSWCA 223

2001 P injured at work > minor damage to teeth

53 consultations with D (dentist) root canal treatment, crowns and bridges fitted to

all P‟s 28 teeth - cost $73,640.

P sued D in trespass and negligence

claimed exemplary damages

D admitted negligence but denied trespass

Dean v Phung (trial)[2011] NSWSC 653

Medical evidence, Dr Howe consultant dentist:

“ (Dr Phung‟s treatment) …. inexcusably bad and completely outside the bounds of what any reputable dental practitioner might prescribe or perform. The treatment was obviously unnecessary and improper and it is the nature of a gratuitous aggravation of any existing injury.“ (at [7])

Dean v Phung (appeal)[2012] NSWCA 223

Did the Civil Liability Act apply?

CLA s3B(1)(a) exclusion: intentional act with intention to cause injury

Was trespass claim established?

Could D prove defence of consent?

Was P entitled to exemplary damages?

Dean v Phung (appeal)s3B(1)(a) exclusion

s3B(1)(a) “focuses solely upon the intention of the defendant practitioner”

1. Intentional Act

“A medical procedure will generally be an intentional act…”

Basten JA at [30]

Dean v Phung (appeal)s3B(1)(a) exclusion

2. Intention to cause injury “…the critical issue is whether, in particular circumstances, it was done „with intent to cause injury‟… (that is) a harmful consequence…

Something which is done with a therapeutic intent, that is, to prevent, remove or ameliorate a disability or pathological condition, would not ordinarily be so described. Indeed, even non-therapeutic treatment, such as cosmetic surgery, would not generally be so described...

… it would have been sufficient … to establish that the dentist knew at the time of giving the relevant advice that the treatment was not reasonably necessary.”

Basten JA at [30]

Dean v Phung (appeal)s3B(1)(a) exclusion

Preferable inference: D probably did not believe at the time he carried out the treatment that it was necessary given the injury suffered by P.

at [47]

Objective test: Relevant factors: expert evidence - disparaging of treatment in light of seemingly

minor injuries

“none of the experts could envisage circumstances in which a reasonably competent dentist would believe such irreversible treatment to be warranted”.

D did not give evidence

Dean v Phung (appeal)s3B(1)(a) exclusion

Policy of s3B(1)(a):

language of the exception “is not suggestive of concepts having some specific legal connotation, but is rather language which encompassed a broad policy objective,” namely “to leave those who have committed intentional torts to the operation of the general law.” (at [26])

Dean v Phung (appeal)Trespass claim

“In the therapeutic context, the defence to the tort of trespass to the person is consent. Where there has been ostensible consent, which is later challenged, the convenient starting point is to consider the validity of the consent, rather than asking whether it has been obtained by fraud.”

Basten JA at [48]

Dean v Phung (appeal)Trespass claim

TEST: was treatment “unnecessary in the sense that it was not capable of constituting a therapeutic response to the patient's condition.” [65]

HELD: Consent vitiated because treatment unnecessary as not capable of addressing P‟s condition [66]

Dean v Phung (appeal)exemplary damages

Damages: $1.743million (25% increase )

Including exemplary damages $150,000

Exemplary damages when conduct of D is “reprehensible, highhanded, outrageous or insulting” (at [79] conscious wrongdoing – course of conduct carefully

planned carried out for over a year

D remained unjustly enriched ($73,640) from a course of conduct he admitted was not necessary (at [80])

The Future

The Future of Intentional Tort Claims in Medical Cases

Intentional Negligence

Uncapped negligence claims

Greater scope for trespass claims

Vitiating ostensible consent

Avoiding CLA damages restrictions

Trespass claims: a framework for analysis

1. No consent, wrong treatment or exceeding consent: Consent cases Absence of information as to core elements of

procedure (cf. peripheral elements)

2. Ostensible consent vitiated: Unwarranted surgeryA) Nature of procedure misrepresented

treatment not capable of addressing P‟s condition > objective test

B) Improper motive conflict of interest > subjective test

D practitioner has onus of proof to establish consent

1. Consent cases Wrong treatment:

Chatterton v Gerson (circumcision instead of tonsillectomy example)

Exceeds scope of consent: Reeves

Murray v McMurchy (consent to caesarean > tubal ligation performed to remove uterine fibroids);

Armellin v Ljubic (consent to hysterectomy > salpigo–oophorectomy – ovary removal performed)

Cf: McDonald v Ludwig (consent to sterilization –filshie clips – also removed bowel adhesions > implied consent as dual purpose ie division of adhesion to facilitate identification as well as avoid bowel obstruction

2. Ostensible consent vitiated: Unwarranted surgery

A) Nature of procedure misrepresented - treatment not capable of addressing P’s condition D not doctor: R v Maurantonio (consent to medical

treatment - not doctor so could not provide medical treatment > no consent )

Suspended doctor/practice restrictions?: Richardson (identity did not include qualifications or attributes > consent); Bain v Bambit

Impaired doctors? HCCC v Marburg

2. Ostensible consent vitiated: Unwarranted surgery

B) Improper motive - conflict of interest

„...consent to the penetration of one's body for the purpose of medical treatment is not consent for other purposes such as sexual gratification or financial gain. The nature and character of the act of penetration may vary with the purpose for which it is performed.‟

Dean v Phung at [93]

sexual misconduct: King v Williams (“medical treatment” by singing teacher – no consent)

financial gain: HCCC v Tiong (breast uplift – initiated by doctor, not indicated etc); Appleton v Garrett (dentist unnecessary procedures); HCCC v Nemeth (overprescribing drugs of addiction)

Why plead intentional torts?

Trespass actionable per se

Defendant bears onus of proof

Strict liability

Exemplary and aggravated damages may be awarded

Civil Liability Act restrictions imposed on plaintiffs in negligence actions may not apply

HOWEVER: Intention may be difficult to prove

Insurance may not be available

Vicarious liability may not be imposed

References

Peter Cane “Mens Rea in Tort Law” (2000) 20 (4) Oxford Journal of Legal Studies 533

Tina Cockburn and Bill Madden “Intentional Tots and the Civil Liability Act 200 (Qld) “ (2005) 25 Qld Lawyer 310

Tina Cockburn and Bill Madden "Application of the Civil Liability Act NSW to intentional torts claims: Houda v NSW" (2005) 2 (7) Australian Civil Liability Bulletin81

Tina Cockburn and Bill Madden "A renewed interest in intentional torts following legislative changes to the law of negligence?" (2006) 14 (3) Tort Law Review 161

Tina Cockburn and Bill Madden “Intentional Tort Claims in Medical Cases” (2006) 13 Journal of Law and Medicine 311

Tina Cockburn and Bill Madden "Liability of the Police for wrongful arrest: Intentional Torts, the Protection of Civil Rights and the Civil Liability Acts" (2006) 26 Qld Lawyer 195

Bill Madden and Tina Cockburn "Intentional Torts Injury further defined" (2006) 44 (4) New South Wales Law Society Journal 64

Tina Cockburn and Bill Madden “Intentional torts to the person, compensation for injury and the Civil Liability Acts recent cases and contemporary issues” (2007) 18 (1) Insurance Law Journal 1

References (continued)

Bill Madden and TinaCockburn “NSW Civil liability Act: negligence and the intentional acts of others” (2007) 4 (1) Australian Civil Liability 1

Bill Madden and Tina Cockburn “Court Finds Negligent Dental Treatment Not an Intentional Act to Cause Harm - Case Note; Dean v Phung” (2011) 19 (8) Health Law Bulletin 117

Bill Madden and Tina Cockburn “An Intentional Act with Intent to Cause Harm in a Medical Context - Case Note; Dean v Phung” (2012) 20 (8) Health Law Bulletin 122

Tina Cockburn and Bill Madden “Pleading intention” (2013) Precedent 42 Peter Handford “Intentional Negligence: a contradiction in terms?” (2010) Sydney Law

Review 29 Peter Handford “Intention, negligence and some statutory conundrums” (2010) 18 Tort

Law Rev 140- Peter Handford “Intention Negligence and the Civil Liability Acts” (2012) 86 Australian Law

Journal 100 Phillipa Alexander “Maximum Costs and Intentional Torts in NSW” (2013) 116 (May/June)

Precedent 56 John Devereux “When Practicing Fails to Make Perfect: Medical Treatment and Battery”

(2013) 21 Tort Law Review 120

Plenary Speakers

Professor Peter Singer

Professor Sheila McLean

Professor Jocelyn Downie

Assistant Professor Charles Camosy

Dr Dale Gardiner

Dr Peter Saul

Professor Michael Ashby

Abstracts welcome, in particular around the conference‟s four sub-themes:

1. Withholding and withdrawal of potentially life-sustaining treatment (e.g. advance care planning, futile treatment)

2. Palliative care and terminal sedation

3. Euthanasia and assisted suicide

4. Determination of death and organ and tissue donation.

13 - 15 August 2014Queensland University of Technology,Gardens PointBrisbane, Australia

Key DatesSubmission of abstracts closes: 30 April 2014Early bird registration closes: 31 May 2014

International Conference on End of Life

http://icelconference2014.com