Delivered about 3 weeks ago, Smythe v Burgman (No 2) [2015] NSWSC 298 raised issues regarding breach of duty, causation and an evidentiary issue regarding the value of usual practice.

The headnote summary addresses for each:

Breach of duty:  the alleged medical negligence resulting in amputation of leg was whether general practitioner ought to have diagnosed arterial ischaemia notwithstanding atypical presentation – relevance of subsequent detection of abnormal pulses to determination whether defendant checked pulses and found them to be normal at first examination –

Causation: whether amputation would or could have been avoided if ischaemia diagnosed at first examination, on which the court found that there was insufficient evidence to assess the value of chance of avoiding amputation if earlier diagnosis made

Evidence of usual practice – inferences to be drawn from clinical notes and the importance of timing of versions given by plaintiff compared with contemporaneous business records.

Briefly stated at [101] is a finding that many doctors take the approach of recording only those clinical findings which are abnormal and that, because it is an approach that is commonly used by general practitioners, it amounts to accepted practice. See also at [117]:

Further, the evidence established that the usual practice adopted by Dr Burgman of not recording every normal finding was widely accepted among general practitioner and therefore would not give rise to a liability in negligence even if it were relied on as a particular of negligence: s 5O of the Civil Liability Act 2002 (NSW).

However it is not clear that a section 5O finding was necessary as the court does not appear to have held that the defendant was in breach of duty, requiring reliance on the section 5O defence.