Lowns v. Woods; Procopis v. Woods

[1996] Aust Torts Reports 81
Download Judgment: English

The plaintiff is the father of a child who suffered from seizures and who received brain damage due to a particular seizure. During that particular seizure, the mother had sent another child to call the local doctor, one of the defendants, who did not come. As New Zealand imposes a statutory duty on doctors to come to the aid of people in need, the defendant was found to be in violation of his duty.

The appropriate treatment for a patient within the plaintiff’s condition of experiencing a seizure was the administration of diazepam (valium), preferably intravenously by a medical practitioner in hospital, or where this was not possible, via the rectum.

Dr. Procopis was a specialist paediatric neurologist who had been treating the child. He had not provided instructions to the plaintiff as to the administration of valium via the rectum as a possible treatment.

This Court assessed whether both doctors had violated their duty of care and whether they had to share the damages.

With regard to Dr. Procopis, the Court found that he was not in breach of his duty of care by failing to advise the parents of the possibility of administering rectal valium. The Court considered what was typical practice of paediatric neurologists at the time of the incident, including consulting other doctors, and found that the treatment was outside of the “reasonable body of (medical) opinion,” a principle established in Rogers v. Whitaker. Thus, not advising the parents of the possible treatment was not unreasonable and Dr. Procopis did not violate his duty of care. One judge dissented believing that by not providing advice that covers all circumstances, such as when a seizure occurs for an unknown amount of time or if it appears that medical assistance would not be available within half an hour—a situation that would call for the rectal administration of valium, Dr. Procopis violated his duty of care.

The Court affirmed the lower court’s ruling in finding Dr. Woods as violating his duty. Doctors have a duty derived from statute and custom to provide for those in need within their proximity. The plaintiff was within that proximity to Dr. Woods, making the lack of action by Dr. Woods a violation of that duty. One judge dissented stating that while there may be a custom there is currently no legal obligation and that the court should not impose a legal obligation in this case.

“In the present case, … Dr Lowns himself acknowledged that within the ordinary standards of a local medical practitioner in his position, had he received the emergency call deposed to by Matthew Woods' sister, he would have been obliged to, and would in fact, have responded. This acknowledgment does not foreclose contrary evidence or prevent a contrary conclusion. But it is powerful testimony (confirming impressionistic understanding or ordinary medical practice in this State) as to what that practice requires.

The Medical Practitioners Act 1938, s27(2), applicable at the time, did not impose a duty for the breach of which, as such, Matthew Woods and his father could sue for civil damages. Yet the subsection reflects the expectations which were accepted as appropriate and proper amongst medical practitioners in responding to a call to the aid of a "person ... in need of urgent attention". This is a high standard. It goes beyond what is expected, and imposed by the law, in the case of other professions. It goes far beyond what may be expected and demanded of an ordinary citizen. But in the noble profession of medicine, it is the rule which Parliament has expressed; which the organised medical profession has accepted; and which Dr Lowns himself acknowledged and did not contest.” (pp. 2-3)


“...[T]o persuade a court to a factual conclusion that those skilled in the field are wrong in concluding that, eg, a particular treatment should/not be followed will require cogent reasons. It can be done; but the burden of factual persuasion will ordinarily be a heavy one.

... That decision [to not advise the child’s parents of rectal administration of valium] was, as I have described it, a clinical decision. I mean by this that it was a decision made by a treating doctor not simply as the result of deductions or inferences drawn from general principles; it was a decision made after weighing the circumstances of the child's individual case. The decision was made having regard to the child's medical history of which the doctor was aware, after weighing the needs which, at the relevant time, the patient had, after assessing the likelihood of further fitting and the extent of the detrimental effects (if any) apt to flow from any further fitting, and after balancing the advantages and disadvantages - and the dangers - of involving lay persons in a procedure such as the rectal injection of a drug.

In my opinion, when a clinical decision of this kind is made, a court will be slow to find the decision wrong and, a fortiori, so wrong as to be negligent. There are, of course, cases in which it will do so. But, in my respectful opinion, this is not a case in which, having regard to the evidence, the court should reach such a conclusion.” (p. 9)

“There was an obvious physical proximity, for Joanna had come on foot. There also proximity" in the sense that Dr Lowns was a existed [sic] an adequate medical practitioner to whom a direct request for assistance was made in where, on the evidence presented, there was no reasonable impediment or circumstance diminishing his capacity or indicating significant or material inconvenience or difficulty in him responding to the request, in circumstances where he knew, as he must be deemed to have admitted once it is found the conversation occurred, that serious harm could occur to Patrick Woods if he did not respond to the request and provide treatment. Once it is found, as here, that administering valium at the time determined by the trial judge would have brought an end to the status epilepticus before the onset of brain damage causing quadriplegia,40 [sic] causal proximity is also established.” (pp. 27-28)