Duty of care — medical negligence
NSW
4 sources
Common Law
JS
You
What is the standard of care required of a medical professional in NSW, and when does a failure to meet that standard constitute negligence?
E
Evatt
The standard of care for medical professionals in NSW is governed by both common law and the Civil Liability Act 2002 (NSW). A medical professional must exercise the degree of care, skill, and judgment that a reasonable person in that professional's position would exercise.
Key Principle
Under s 5O of the Civil Liability Act 2002 (NSW), a medical professional is not liable in negligence if they acted in a manner widely accepted by peer professional opinion as competent professional practice — even if contrary views exist. 1
The High Court in Rogers v Whitaker 2 modified the Bolam test for Australia: the standard of care is not solely determined by medical opinion — particularly for disclosure of risk. A doctor must warn of material risks a reasonable patient would attach significance to. 3
To establish negligence a plaintiff must prove on the balance of probabilities:
- The defendant owed a duty of care;
- There was a breach of that standard; and
- The breach caused the plaintiff's loss. 4
E
Evatt
Searching case law