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KembaraXtra- Case Law-DeFreitas v O'Brien (1995)
Key Principle:
Key Principle:
- The "body of responsible medical opinion" supporting a medical professional's actions does NOT need to be "substantial" in number to be considered acceptable. It only needs to be a responsible body of opinion.
- Plaintiff: Suffered chronic back/neck pain, underwent unsuccessful surgery, then a second surgery despite a myelogram suggesting no nerve compression.
- Second Operation Findings: Surgeon found severe compression of nerve roots.
- Post-Op Complications: Further pain, infection, CSF leak, requiring more surgery. Developed chronic arachnoiditis.
- Plaintiff's Claim: Negligence in the surgeries and management of the CSF leak.
- The core of the issue: Very few doctors would have countenanced surgery in this case (only a small sub-specialized group).
- Court of Appeal: Dismissed the appeal, supporting the original judge's decision that the defendant was not liable.
- Reasoning (Otton LJ): Focused on the responsibility of the body of opinion, not the size of it. It was not necessary to prove that a "substantial" group of spinal surgeons would have acted similarly.
- Potential Issue: Decision may "license risk-taking."
- Counter-Argument: While "responsible" is the key test, the number of doctors supporting a practice is relevant to determining whether that practice is "accepted" and "responsible."
- Scholarly Criticism: Numbers must play a part in determining whether the practice is accepted and therefore responsible.
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