Explaining Intervening Acts in Medical Negligence Cases
The RMB Compensation division explains the principle of an intervening act in medical negligence.
Imagine you are injured in a motor vehicle accident caused by another driver’s negligence. You require surgery which is also performed negligently by the surgeon, which means you suffer worse and ongoing losses - continuing wage loss, need for medical treatment and so forth.
Who is responsible for those losses, and who is responsible for payment of compensation?
Basic principles of law dictate that where an “intervening” (and unforeseeable) act occurs, then the earlier party should not be responsible due to a break in the “chain of causation”. However, the principle has been explored in greater detail by the Courts specifically concerning the negligence of medical practitioners following an earlier negligent act.
Previous cases dealt with by the Courts include:
- Liston v Liston (1981) where the South Australian Supreme Court found that a negligent driver was responsible for back injuries sustained in a motor vehicle accident and also as a result of subsequent permanent disability arising from unsuccessful surgery. This was on the basis that there was nothing unreasonable, extrinsic or extraneous about the specialist surgeon’s decision to perform the surgery.
- Aquilina v NSW Insurance Ministerial Corporation (1994), which involved a motor vehicle accident wherein the negligent driver was found to be responsible for both back injuries sustained in the subject motor vehicle accident, and also for the significant complications of negligently performed back surgery.
As a result of those cases, in order for “an intervening act to break the chain of causation”, it must be “unforeseeable”. The cases demonstrate that there exists an inherent and foreseeable element of risk associated with medical treatment, including that it may be performed negligently. Therefore negligently performed treatment will NOT break the chain of causation UNLESS the treatment was inexcusably bad; obviously unnecessary or improper; or extravagant from a medical perspective.
Where the treatment is considered inexcusably bad, obviously unnecessary or improper, or extravagant from a medical perspective, the negligence can be considered “gross negligence” and the chain of causation will be broken.
Put simply, unless the negligence is considered to be “gross negligence” the chain remains unbroken and the original negligent party will remain responsible for the losses which flow.
Looking at the situation outlined at the beginning of this article, the negligent driver will remain responsible for the losses, unless the surgeon has performed grossly negligent surgery.