Is your expert actually an expert?

In a recent WA case the plaintiff alleged that the Hospital breached its duty of care to her by failing to recognise that she was suffering from evolving and detectable sepsis, and to commence antibiotic treatment in a timely manner. The Court was only asked to make a finding as to liability.
 
 The Hospital denied that the plaintiff ever had sepsis and argued that the proper diagnosis was SIRS (systemic inflammatory response syndrome) or ARDS (acute respiratory distress syndrome) in respect of which they had correctly provided treatment. The Hospital asserted that it was not negligent because its care and treatment of the plaintiff was in accordance with a practice that was widely accepted as competent professional practice.
 
The plaintiff had attended hospital with superficial and partial burns, but no full thickness burns, to her knee region, which amounted to less than 20% of her body area. She had suffered no inhalation injury. There was obvious inflammation. It was not in dispute that she had significant spikes of temperature over the first 48 hours, persistent tachycardia, elevated inflammatory markers, evolving neutropenia and respiratory distress requiring oxygen.
 
Whilst the plaintiff's expert agreed that many of the markers were consistent with SIRS, the constellation of symptoms was said to indicate evolving sepsis. In that regard, the most significant marker was the extremely low neutrophil count which was described by the plaintiff's expert as appallingly low and one which severely compromised her ability to fight any infection. He had only seen such severe neutropenia in patients with sepsis or those undergoing chemotherapy. He disputed that burns to less than 20% of the body could give rise to ARDS without sepsis.
 
To the contrary, the defendant's experts were of the opinion that the best explanation for the plaintiff's condition was ARDS and that whilst rare, burns of the extent suffered by the plaintiff could give rise to ARDS. As the screens for systemic microorganisms were clear, the CRP was in the range consistent for burns and the multi-organ failure occurred after severe hypoxia, ARDS was the more likely diagnosis. As the plaintiff was not suffering from any general infection, the use of antibiotics would not have altered her condition in any event.
 
However, the Court rejected the defendant's paediatric experts, at least in part on the grounds that none were experienced in the development of ARDS in paediatric patients. The Court found that the plaintiff did suffer sepsis and that her sepsis continued to evolve up until the time that she was transferred to and treated in the ICU.
 
The Court was satisfied that prior to the plaintiff being admitted to the ICU, no consideration was given to the possibility that her deterioration was due to sepsis as opposed to fluid overload and as a result the plaintiff was not commenced on antibiotics. The Hospital had failed to recognise the possibility of sepsis, test for it and treat the plaintiff with antibiotics.
 
The Court noted that none of the medical experts suggested that where a patient was suffering sepsis that it was widely accepted as competent professional practice by doctors working in a paediatric burns unit, to fail to recognise that a patient is, or might be, suffering from sepsis and in those circumstances to test for sepsis.
 
As a result the Court was satisfied that the plaintiff had established that the treatment of the plaintiff did not accord with what was widely accepted by the health professional's peers as competent professional practice.
 
The Court was also satisfied that but for the negligent conduct of doctors, the plaintiff would not have developed ARDS to the extent that she did and consequently would not have suffered the injuries which flowed from ARDS. As a result the Hospital is liable to compensate the plaintiff for the injuries and disabilities which resulted.
 
This decision highlights the importance of briefing experts who have the requisite expertise to comment on the specific clinical issue which is in dispute in the proceedings. A failure to do so, results in running the risk that the Court will reject the expert evidence on the basis that the expert lacks the requisite expertise to offer an opinion.
 
Reference: Mabior bhnf Kelei v Child and Adolescent Health Service <https://jade.io/article/569856>  [2018] WADC 12

Post by Monica Pecker and Cameron Leaver

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