Australia: A paramedic is not an emergency physician: High Court visits the standard of care for professional negligence claims

In brief - Medical malpractice case provides lessons for insurers and professionals on assessing standard of care and careful preparation of witness statements

Main takeaways from State of Queensland v The Estate of the Late Jennifer Leanne Masson [2020] HCA 28

• In regard to standard of care of professionals, the High Court's judgment reaffirms that the standard to which a professional is to be assessed is that which is widely accepted, despite not necessarily being accepted by the majority.
• Witness statements must use the language of the witness and be as contemporaneous as possible.

Woman suffering severe asthma attack sustains irreversible brain damage during transfer to hospital

In July 2002, Jennifer Masson, a 25-year-old chronic asthmatic suffered a severe asthma attack while visiting friends in Cairns. 

An ambulance was called. The attending paramedic administered intravenous salbutamol in the initial phase of treatment based on his interpretation of the QAS Clinical Practice Manual (CPM). The CPM relevantly indicated:

The paramedic's clinical judgment to administer salbutamol over adrenaline was due to Ms Masson at the time having both an elevated heart rate and high blood pressure. He knew that adrenaline carried with it a high risk of adverse effects, including the potential for arrhythmia or cardiac arrest. 

Despite some signs of improvement during transfer to Cairns Base Hospital, Ms Masson's heart rate suddenly dropped and her condition rapidly deteriorated. The paramedic assessed that she was in "imminent arrest" (cardiac arrest - she was already in respiratory arrest) and administered adrenaline. 

Despite the administration of both salbutamol and adrenaline, Ms Masson sustained severe, irreversible brain damage from the deprivation of oxygen prior to arriving at hospital and remained in a vegetative state for the following 13 years before her death in 2015.

Supreme Court dismisses claim against the State of Queensland

Ms Masson's Estate commenced proceedings against the State of Queensland (the State) alleging that the paramedic's failure to promptly administer adrenaline to Ms Masson was a negligent omission for which the State was vicariously liable. In the alternative, it was alleged that the State's paramedics were not provided adequate training. 

Notably, as the events took place before the enactment of the Civil Liability Act 2003 (Qld), the determination of the claim was governed by the common law.

At first instance, the trial judge determined that the paramedic had considered administering adrenaline to Ms Masson but decided against doing so because of the increased risk of adverse effects on account of her elevated heart rate and high blood pressure at the time. The CPM required consideration  of adrenaline, it did not require its administration. 

The question then was whether the paramedic's consideration, and rejection, of adrenaline was negligent and contrary to peer professional opinion. To this, the trial judge commented that in 2002, there was a responsible body of medical opinion which supported the view that Ms Masson's clinical presentation provided a medically sound basis to administer salbutamol at the time of treatment. The claim was dismissed.

Estate of Ms Masson successfully appeals to Queensland Court of Appeal

The Estate appealed to the Queensland Court of Appeal. 

The Court of Appeal comprising Fraser and McMurdo JJA and Boddice J determined that the paramedic had departed from the relevant Practice Manual and was negligent in failing to administer adrenaline to Ms Masson at the outset.

In the joint judgment delivered by Justice McMurdo, she commented that it was inconsistent with the exercise of reasonable care and skill for a paramedic to depart from the CPM, even if following that CPM would have entailed risks. Their Honours further held that the trial judge's finding about the responsible body of medical opinion supporting the administration of salbutamol to a patient in Ms Masson's condition in 2002 was not supported by evidence.

The appeal was allowed and judgment was given for $3,179,384.

High Court unanimously finds that Court of Appeal erred in its determination

The State was granted special leave to appeal to the High Court. The bench consisting of Chief Justice Kiefel and Justices Bell, Keane, Nettle and Gordon delivered judgment on 13 August 2020.

The High Court was unanimous in their finding that the Court of Appeal erred in its determination.

In their joint judgment, Nettle and Gordon JJ considered that although the Estate successfully demonstrated that the majority of specialist emergency physicians in 2002 would have chosen adrenaline from the outset, this did not mean that the minority, who would have chosen salbutamol as a first preference, were negligent in doing so. Their Honours were also careful to draw a distinction between an emergency physician and a paramedic who operates in time critical situations and without the assistance and certitude of the facilities of a hospital's emergency department.

As to the question of adherence to the CPM, the High Court commented that the Court of Appeal (and those representing the parties) treated the CPM as though it were a legal document or statute which was incorrect. The correct approach was that adopted by the trial judge who commented that the Practice Manual was "intended to guide and assist rather than to proscribe decision making" (see Masson v Queensland  (2018) Aust Torts Report 82-399 at 66, 706 [111]),  and while it prompted consideration of adrenaline, it did not require its administration. 

In the same way that the parties and the Court of Appeal interpreted the CPM as a legal document, there was much discussion in both the Court of Appeal and the High Court's judgments about the paramedic's written statement prepared seven years following the events in 2002 and his use of the phrase "not permitted". Kiefel CJ, Bell and Keane JJ drew attention to the paramedic's evidence in chief as being persuasive and not inconsistent with his written evidence while noting that the statement had the "hallmarks of professional drafting".

Ultimately, the High Court agreed with the trial judge's conclusion that the paramedic's clinical judgment to administer salbutamol made in light of Ms Masson's elevated heart rate and blood pressure was supported by a responsible body of medical opinion. The State's treatment of Ms Masson did not fall below the standard of care expected of an ordinary skilled intensive care paramedic. 

Key takeaways from High Court's decision in Queensland v Masson

The High Court's judgment accords with the wording in certain of the current, mostly codified, law regarding standard of care of professionals. In New South Wales, for example, section 5O of the Civil Liability Act 2002 (NSW) requires assessment of the standard of care for professionals being the manner (at the time the services were provided) which was widely accepted in Australia by peer professional opinion as competent professional practice. The important theme here is twofold:

1. The professional needs to act in a manner widely accepted, this does not connote majority acceptance, and
2. Professionals must be judged as against their peers. The standard of a medically qualified emergency physician cannot be determinative of the standard of a paramedic who, while also relevantly qualified, is not trained to the same degree and who must operate with limited resources and under immense pressure.

As Kiefel CJ, Bell and Keane JJ said ".this is a less exacting standard than that expected of specialists in emergency medicine. The Court of Appeal correctly observed that intensive care paramedics cannot be expected to make fine professional judgments of a kind that require the education, training and experience of a medical specialist." 

The judgment is also a timely reminder about drafting witness statements. It must be remembered that the statement is that of the witness and must use the language of the witness. Additionally, the more contemporaneous the statement, the more likely it will reflect the witness's true account of the incident. This can be achieved by early evidence gathering, particularly where a claim is likely.

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