This paper examines the legal issues surrounding medical negligence litigation that arise during the implementation phase of new life-saving medical technologies. Using the example of clot retrieval for acute stroke treatment, the issues of vicarious liability of hospitals, the non-delegable duty of care and breach of the standard of care will be examined with a particular focus on public authority protections under the Civil Liability Act 2002 (NSW).
At the heart of these protections is s 42, which expressly recognises that public authorities must manage finite financial and human resources across a broad range of responsibilities. The section requires courts to consider the general allocation of resources and the competing demands a public authority faces when assessing whether it has been negligent.
Complementing this general protection is s 43, which further shields public authorities from liability. Under this section, a court cannot find a public authority negligent unless its conduct was so unreasonable that no reasonable authority could consider it a proper exercise of its functions. This threshold places a high burden on plaintiffs. It serves to protect discretionary government action and to discourage courts from substituting their judgment for that of public officials.
In particular, the question of what constitutes the legal standard of care at a specific time and place during the implementation phase of an innovative technology is challenging to answer. For example, when can the same standard of care be expected at regional hospitals compared to metropolitan referral hospitals?