Queensland Court of Appeal finds paramedic was negligent in treatment of extreme asthma

I have previously reported on the decision of the Justice Henry (‘Henry J’) of the Queensland Supreme Court in Masson v State of Queensland [2018] QSC 162.  In that case Henry J found that there had been no negligence by the paramedics involved in treating Ms Masson’s acute asthma (see Queensland Ambulance not negligent in treatment of patient’s extreme asthma (July 25, 2018)).

On 10 May 2019 the Queensland Court of Appeal handed down its decision in Masson v State of Queensland [2019] QCA 80.  In that decision McMurdo JA (with whom Fraser JA and Boddice J agreed) allowed the appeal by the Estate of Ms Masson’s appeal.  The Court found the state of Queensland was liable for the negligence of the Queensland Ambulance Service (QAS).  The court ordered the parties to make further submissions as to the appropriate amount of damages and costs that should be awarded.

The facts

These are set out in some detail in the earlier post (Queensland Ambulance not negligent in treatment of patient’s extreme asthma (July 25, 2018)).  Sufficient for this discussion is this summary from McMurdo’s judgment ([2] and [3]):

In 2002, Jennifer Masson suffered a severe asthma attack at a friend’s house in Cairns.  An ambulance was called which arrived a few minutes later.  Ambulance officers treated her immediately, including by the intravenous administration of the drug salbutamol.  About 20 minutes later, when she was being transported to a hospital, the officers administered the drug adrenaline.  She was soon at the hospital where she received further doses of adrenaline…

When the ambulance officers arrived at the scene, Ms Masson had already stopped breathing.  Tragically, by the time she arrived at the hospital she had suffered irreversible brain damage by being deprived of oxygen.

There had been a number of allegations of negligence at trial, all of which were rejected by Henry J.  In the Court of Appeal only one claim was relevant. That was ‘… that the ambulance officers ought to have administered adrenaline immediately, or at least within a couple of minutes, rather than doing so only 20 minutes later’ ([5]).

A critical issue was the meaning of the flow chart for the treatment of asthmatics in the QAS Clinical Practice Manual – see below.

McMurdo JA said (at [20]-[23]):

For the appellant, it was contended that the case which was presented to the officers was within the first of the “diamonds”, headed “Imminent Arrest”, with the consequence that Ms Masson was to be treated in the way set out in the shaded section opposite that alternative.  The officers were to “Consider adrenaline I.V./ETT, I.M.”  The appellant’s case was that this meant that adrenaline had to be administered, with the officers to consider only how that was to occur: intravenously (“I.V.”), by an endotracheal tube (“ETT”) or intramuscularly (“I.M.”).

For the respondent, it was argued that this was not a case within the diamond which was highest on the page, because not every circumstance which was there listed, most particularly bradycardia, was present.  Ms Masson was not bradycardic, instead she was tachycardic.  Further, had the circumstances been within the first diamond, it was argued that the ambulance officers had to consider whether to administer adrenaline, rather than being directed to administer it.

The trial judge accepted the appellant’s argument that this was a case of “Imminent Arrest” which was within the first diamond, because not every circumstances there listed had to be present.  It was sufficient that the GCS was under 12.  However, the judge rejected the appellant’s argument as to the meaning of “[c]onsider adrenaline”, holding that this required the officers to consider whether to administer adrenaline (and if so how), rather than compelling its administration in some form in every case of imminent arrest.

In my view, the trial judge’s interpretation, in each respect, was correct…

The standard of care – what can be expected of paramedics?

McMurdo JA concluded (at [149]) that the standard of care expected of a paramedic (at least in 2002) was to administer treatment guided by the Clinical Practice Manual. She said:

… it would not be consistent with the exercise of reasonable care and skill for an ambulance officer to depart from the guidance of the CPM.  A substantial issue in this appeal is the scope of the discretion, provided by the flowchart, to “consider adrenaline”.  The exercise of reasonable care required that such consideration actually occur, but consistently with the guidance provided by the CPM.

She concluded that Mr Peters did not properly apply the CPM. First, the trial judge found that Mr Peters did consider adrenaline but ruled it out because of the possible risk of side effects (see [151]-[153] of trial judge’s reasoning set out in [135] of the Court of Appeal’s decision).  McMurdo JA reviewed the evidence and found that the judge’s conclusions at trial were not supported by the evidence that had been put before him. She concluded, contrary to the opinion of the trial judge, that Mr Peters took the view that the flow chart required all the indicia in the first diamond to be met (ie GCS <12 and bradycardia and absent pulse) before adrenaline could be administered.  He did not consider that some combination of those symptoms, coupled with other indicia of ‘imminent arrest’ (given that this patient was in respiratory arrest) meant that under the CPM the use of adrenaline was permitted.  At [150]-[159] McMurdo JA said:

As the trial judge found, this was a case of imminent arrest as described in the flowchart.  The ambulance officers, Mr Peters in particular, had to make an assessment of the symptoms and condition of the patient.  However, upon the correct interpretation of the flowchart, this was a case within the diamond highest on the page:  the patient’s GCS was less than 12 and she was at risk of an imminent arrest, more specifically a cardiac arrest.  According to the CPM, the officers were to be guided by the treatments appearing in the section indicated by the arrow to the right of that diamond…

I have disagreed with the trial judge that Mr Peters did consider whether adrenaline should be administered, by weighing the risks from its use against the risks of salbutamol not being as effective in bronchodilation.  To the extent that Mr Peters did avert to the use of adrenaline, he immediately rejected it, not because of a clinical judgment, but because he misunderstood the guideline by thinking that in no case was adrenaline to be given to a patient who was not bradycardic…

In summary, Ms Masson was not treated in accordance with the CPM.  The use of adrenaline was not considered as required by the flowchart.  If it was considered at all, it was inconsistent with the CPM to decide to administer twice the permitted dosage of salbutamol in the hope that this would be as effective as the administration of adrenaline…

… the CPM was not relevantly ambiguous.  Mr Peters’ understanding was that adrenaline was not even to be considered for a patient who was not bradycardic.  It would have been remarkable if the CPM precluded the use of adrenaline where the heartrate was normal.  Mr Peters’ conduct cannot be excused on the basis of a reasonable but mistaken interpretation of the CPM.

That of itself is enough to establish negligence, but the trial judge had found that what he saw as a decision by Mr Peters to prefer salbutamol because of the risk of side effects, was supported by medical opinion.  At [161] McMurdo JA said:

Yet ultimately, the judge held that the administration of salbutamol in this case could be justified because it accorded with “a responsible body of opinion in the medical profession”.  His Honour found that although, in 2002, there was not a responsible body of opinion that salbutamol was equally effective as adrenaline, nevertheless there was a body of opinion supporting its use in preference to adrenaline where the patient had a high heartrate and high blood pressure…

McMurdo JA said (at [164]) that his Honour’s finding, above, was not supported by the evidence, but even if there was such a divergence of opinion within the medical profession, it would not justify Mr Peters’ departure from the CPM.  Of most interest to readers of this blog will be her Honours comments on the standing of paramedics and paramedicine. At [148]-[149] she said:

The difference between the care and skill to be expected of an ambulance officer and that to be expected from a specialist in emergency medicine is significant in a number of ways.  The first is that, notwithstanding their training, ambulance officers cannot be expected to make the fine professional judgments which would require the education, training and experience of a medical specialist.  That limitation is recognised by the fact that ambulance officers are provided with the instructions and guidance of something such as the CPM.  As the trial judge said in the above passage, the CPM (or as he called it, the QAS guidelines) was significant as evidence of a relevant standard of conduct.

Further, again because of the more limited education, training and experience of ambulance officers compared with medical specialists, it would not be consistent with the exercise of reasonable care and skill for an ambulance officer to depart from the guidance of the CPM.  A substantial issue in this appeal is the scope of the discretion, provided by the flowchart, to “consider adrenaline”.  The exercise of reasonable care required that such consideration actually occur, but consistently with the guidance provided by the CPM.  A departure from that guidance, with the grave risk that the patient would not avoid serious injury or death, could not be easily justified upon the basis that the officer believed that there was a responsible body of medical opinion which supported that course.  Unlike the medical specialist, the ambulance officer does not have the requisite competence to make their own professional judgment about the merits of competing views within a field of specialised medical practice.

And at [161], even if there was “a responsible body of opinion in the medical profession” supporting the use of salbutamol in preference to adrenaline where the patient had a high heartrate and high blood pressure.

… an ambulance officer could not have been expected to know of the existence of competing bodies of medical opinion on that subject, and was not competent to make an assessment of the respective merits.  Instead, the exercise of reasonable care required the ambulance officer to be guided by the CPM.

Impact for the profession of paramedicine

Compare the decisions in the trial court and the court of the appeal.  The trial judge took the view that Mr Peters considered adrenaline but ruled it out because of the risk of adverse side effects and with the knowledge of contests of ideas of when and which drug to use.  That is he found, and accepted as not negligent, that there was an exercise in professional decision making.

The Court of Appeal found that the trial judge had misunderstood the evidence.  That Mr Peters did not make the sort of judgement described, rather seeing that all the symptoms in the first diamond were not present he took the view that he was not permitted to administer adrenaline. Further there was no dispute in medical opinion.  If that’s correct, so be it.  If the judge misunderstood the evidence and if Mr Peters misunderstood the CPG then that was, in the Court of Appeal’s view, negligent.  But the Court of Appeal went further.  A paramedic is not expected to know or understand the science behind the treatment guidelines or issues in contest within the science. Further he or she is not expected to make decisions other than to assess the symptoms to identify what guideline applies and then apply that guideline.

Although this case was decided in 2019, the treatment given to Ms Masson was delivered in 2002.  Paramedicine has come a long way since 2002 including the now almost universal requirement for new paramedics to have degree qualifications and the recognition of paramedic professionalism as shown by registration of paramedics under the Health Practitioner Regulation National Law since December 2018. There is no discussion of any evidence about developments in paramedic practice and it would not have been relevant as the question was whether the treatment delivered in 2002 meet the standard of reasonable care to be expected from a paramedic in 2002.  But whether a court would take the same view of treatment in 2019 remains to be seen.

Even so the court made several statements of concern.  First McMurdo JA (at [147]) relied on the decision of Basten JA who delivered the judgement of the NSW Court of Appeal in Ambulance Service of New South Wales v Worley [2006] NSWCA 102 (discussed by me in the article ‘Ambulance Service of NSW v Worley; further legal lessons for the emergency services‘ (2007) 5(2) Journal of Emergency Primary Health Care (continued as the Australian Journal of Paramedicine) Article 990235). In that case Basten JA said ‘Ambulance officers are not medical practitioners, let alone specialists in emergency medicine …’

Today’s paramedics may well assert that they are indeed specialists in emergency medicine.

Of concern in Worley’s case was that 5 doctors, and no paramedics were called to give evidence as to the care to be provided by a paramedic.  As Basten JA said:

Without objection, experts in emergency medicine discussed their own practices in well-equipped teaching hospitals, with far less attention being given to the position of ambulance officers and the nature and purpose of the protocols which governed their conduct.

In Masson’s case both sides of the case called six emergency medical practitioner (three each) but at least they also called two paramedics (one each).  In Lithgow City Council v Jackson, a case that turned on the meaning to be drawn from a paramedic’s case sheet, none of the parties thought to ask the paramedics what they had intended to convey about the cause of the patient’s injuries when recording the history on the case sheet (see Lithgow Council v Jackson [2011] HCA 36 (28 September 2011) (October 5, 2011)).

Although paramedics now complete a three year degree and are registered health professionals, it seems that they have a long way to go to truly establish themselves and paramedicine as a profession. In her book, Nursing and the Injustices of the Law (Sydney : W.B. Saunders/Bailliere Tindall, 1994) Megan-Jane Johnstone argued that nurses won’t be truly a profession until they are sued as nurses for their own decisions rather than being seen as the agents of doctor’s negligent decisions.  It has been a cause celebre that Dr Hadiza Bawa-Garba, a UK doctor was convicted of manslaughter and struck off as a medical practitioner following the death of a young patient (see UK doctor successful in appeal against decision to remove her name from the register following manslaughter conviction (August 14, 2018)).  What is often forgotten is that a nurse was also convicted of manslaughter and presumably that nurse’s conviction still stands.  Whilst it is not a badge of honour that anyone would want to wear, that the nurse was held to account for her actions, independently of the doctor, may go some way to showing that nursing and nursing standards are sufficiently developed such that nurses are now seen responsible for their own decisions and not just responsible for faithfully implementing doctor’s orders.

Masson’s case shows that the law is still to give full recognition to paramedics or, more importantly, the science of paramedicine.  Paramedics are responsible for their compliance with guidelines or protocols issued by their service. (In Worley’s case the court had found that the paramedic could not be negligent if he treated the patient in accordance with the protocol then in place.  If there was negligence (which there was not) it lay with the ambulance service for issuing an inappropriate protocol.)  They are not, according to McMurdo JA, ‘expected to know of the existence of competing bodies of medical opinion’ nor are they ‘competent to make an assessment of the respective merits’ of those competing opinions.

Paramedics are now registered.  In a recent article (‘Paramedicine In 10 Years: What will it look like’ (2019) 46 Response, 18-20) Ruth Townsend and I argued that registration is likely to have a significant impact on those practicing paramedicine today compared to those practicing on 31 November 2018 (ie before registration came into effect).  The impact of registration will be felt in the years to come.   One impact, particularly if paramedic practitioners move back into the tertiary sector to complete paramedic research and PhDs will be to develop a body of knowledge that is unique to paramedicine and qualify paramedics as ‘specialists in emergency paramedicine’.  If and when that happens it may be that cases involving paramedic practice have paramedics and not medics as expert witnesses and where issues arise it will be about ‘competing bodies of paramedical opinion’ where paramedics are able to ‘make an assessment of the respective merits’ of various opinions when assessing the case in front of them.

Until them medicine remains the dominant profession setting the standards by which paramedics, and nurses, and others are judged.  There are those that make the argument that it is medicine that restricts other health professions, limiting the ability of nurses and paramedics and others to do things such as prescribe medication or practice independently.  It is argued that this is done for the patient’s benefit and care, but a more cynical view may be that it is done to protect medicine’s turf and standing.    These issues were touched on in a special issue of The Drum on health care (The Drum, ABC TV, 9 May 2019) Dr Norman Swan, a doctor and host of ABC’s The Health Report said (at 53:40) that there is no free market in health care and that people are not getting health care they need.  To change that is, he says, is the need to ‘challenge organised medicine’ (at 54:29).  Developing a unique body of knowledge that is paramedicine will be part of that challenge to organised medicine and will allow paramedics to move into that free market (see Expanding paramedic practice with the coming of registration (October 29, 2018)).

Conclusion

Perhaps Mr Peters did not exercise sufficient imagination in this case, seeing that this patient did not have bradycardia he concluded that she was not at risk of imminent arrest even though she was in fact in respiratory arrest. He was, according to the court, expected to take a more wholistic view of the patient’s presentation and identify that [cardiac] arrest was imminent and therefore the only treatment called for was adrenaline, not salbutamol.  I’ll leave that to others to decide if that was reasonable and how you would read the QAS flow chart.

What can be said, with some confidence, is that if that sort of reasoning was expected in 2002 it will be even more so in 2019 when paramedics have completed three years of university education before moving onto the road as registered paramedics.

Of real concern and perhaps more importance is what McMurdo JA said about paramedicine and paramedics as professionals.  Today it is still doctors who are called to give evidence on paramedic practice.  It is lawyers that decide what evidence to call and these cases (and in particular Worley’s case and Lithgow city where no paramedics were called) suggest that lawyers are not yet thinking about paramedics as independent practitioners.

Being the paramedic who was found negligent is nothing anyone would want, but it is perhaps a first step in recognising that paramedicine is a profession and that paramedics are accountable for their decisions.  The next step is to move away from the idea that paramedics are, or are not, negligent only to the extent that they follow the manual issued by their employer and move to recognise that they are experts in pre-hospital emergency care and that there is a body of paramedical knowledge to be applied by paramedics.  That next stage is perhaps a long way off, but it is something for the profession to work toward.

POSTSCRIPT

Following this post, a commentator on Facebook wrote:

So the finding is that “consider x treatment” is not sufficient and that paramedics should be following the guidelines rigidly.

With respect to McMurdo JA, it’s actually impossible to know what the finding of this case, or more importantly what the implications for paramedics actually is.

The problem, as I see it, is that McMurdo JA said (at [148]-[149]):

… notwithstanding their training, ambulance officers cannot be expected to make the fine professional judgments which would require the education, training and experience of a medical specialist.  That limitation is recognised by the fact that ambulance officers are provided with the instructions and guidance of something such as the CPM.  As the trial judge said in the above passage, the CPM (or as he called it, the QAS guidelines) was significant as evidence of a relevant standard of conduct.

Further, again because of the more limited education, training and experience of ambulance officers compared with medical specialists, it would not be consistent with the exercise of reasonable care and skill for an ambulance officer to depart from the guidance of the CPM….

If all paramedics are required to do is follow the CPM then it would seem that Mr Peters did that.  The first diamond on the CPM said

Imminent Arrest:

GCS<12

Bradycardia/

Absent pulses.

If a paramedic is expected to follow the CPM then, in this case, Ms Masson had a GCS<12 but tachycardia (not bradycardia) and a palpable (not absent) pulse.   On that basis how does a paramedic determine that cardiac arrest is imminent?

The answer according to McMurdo JA was that her overall presentation including respiratory arrest was evidence that arrest was imminent and she knew that because the medical experts gave that evidence.  But they are the medical specialists that is those with the training that in McMurdo’s opinion allow them ‘to make the fine professional judgments’ that a paramedic cannot make.  To quote Basten J from Ambulance Service NSW Ambulance v Worley they were

… experts in emergency medicine discuss[ing] their own practices in well-equipped teaching hospitals, with far less attention being given to the position of ambulance officers and the nature and purpose of the protocols which governed their conduct.

If a paramedic cannot ‘make the fine professional judgments which would require the education, training and experience of a medical specialist’ it would appear that the decision to reject adrenaline as the patient’s condition did not meet the first diamond should have been a reasonable response from a reasonable paramedic.

The trial judge, Henry J, said (Masson v State of Queensland [2018] QSC 162, [97]-[98]):

It is noteworthy that on the [Clinical Practice] manual’s own terms its case management guidelines are not proscriptive and rather are provided to guide and assist patient diagnosis, management and care…

Significantly, in the context of the present case, the section of patient care principles in respect of clinical judgment/problem solving, includes this note:

“Officers must consider the best possible care for the patient.  The QAS Clinical Practice Manual is designed to assist clinical judgment, using the problem solving approach, to achieve best practice.  It is acknowledged that every situation is different.  Deviations from the guidelines will occur but must be documented and audited, and officers must be able to justify that their treatment was in the patient’s best interest.” (emphasis added)

In the Court of Appeal McMurdo JA agreed (at [22]) that the CPM ‘required the officers to consider whether to administer adrenaline (and if so how), rather than compelling its administration in some form in every case of imminent arrest’ that is the decision to administer adrenaline was not mandatory but did call for clinical judgement, even if that judgment was not ‘the fine professional judgments which would require the education, training and experience of a medical specialist’.

The problem as I see it is that Henry J found that Mr Peters, faced with a patient with acute asthma but not having all the symptoms listed in the first diamond elected to proceed with salbutamol rather than adrenaline because it is known that adrenaline has potential side effects particularly given Ms Masson was hypertensive and tachycardic.  Henry J found that was consistent with the CPM that required the paramedic to ‘consider’ adrenaline and which also recognised that the CPM was only there to guide decision making not prescribe treatment and that deviation from the CPM could be expected and justified on clinical grounds.

McMurdo JA on the other hand held that deviation from the CPM was contrary to the standard to be expected of a paramedic.  Further she found that Mr Peters did deviate from the CPM as he did not recognise that arrest was imminent even though the symptoms listed in the first diamond were not met. So either Mr Peters had to exercise clinical judgement as to the patient’s condition, something which McMurdo JA said he was not expected to do, or he was to follow the CPM to the letter which it appears he did (save that if the patient had not improved the flow chart would have taken him back to ‘consider adrenaline’ but there was evidence that at least initially the salbutamol was having a positive effect).

The problem that I tried to allude to in the original post was that, if McMurdo JA is right and a paramedic is not ‘expected to make the fine professional judgments which would require the education, training and experience of a medical specialist’ then why is that those medical specialists are called to give evidence as to what the QAS CPM required or what was reasonable practice of a paramedic?

So does McMurdo JA’s judgment mean ‘paramedics should be following the guidelines rigidly’?  As I’ve tried to argue that just isn’t clear.  McMurdo JA said that the evidence did not support a finding that Mr Peters did consider adrenaline and rule it out for clinical reasons.  She was of the view that he ruled out as the CPM did not allow it unless the patient had a GCS<12, bradycardia and absent pulse.  That would sound like he followed the CPM ‘rigidly’ but in fact he was negligent because the CPM wasn’t that rigid and required him to consider adrenaline when arrest was imminent and a number of medical specialists said he should have identified that even though he was not capable of, or expected ‘to make the fine professional judgments which would require the education, training and experience of a medical specialist’.

As argued above paramedics and paramedicine are not yet recognised as professionals, and a profession, by lawyers.  In a cute statement Windeyer J said that ‘Law [is] marching with medicine but in the rear and limping a little…’ (Mount Isa Mines v Pusey (1970) 125 CLR 383, 395).  Law is so far behind that it (or at least lawyers) have failed to notice that paramedics have now joined medical practitioners on the track ahead.  Hopefully if cases like this arise in the future it will be paramedics, and not doctors, who will give evidence as to what the standard of care in paramedicine (not medicine) required and will refer to paramedic knowledge and science to support paramedic decision making.

That is however the future.  For today, it is very unclear what this judgement means for paramedic practice.