What Does Peer Professional Opinion Mean? A case Study of Dean v Pope [2022] NSWCA 260

This matter arises from surgery performed on Mr Dean by Dr Pope in 2014 when Mr Dean was 25 years of age. As a result of the surgery, Mr Dean alleged that he suffered localised back pain, genito-urinary problems and a psychological (somatoform) disorder.

In 2013 Mr Dean consulted with Dr Pope about concerns of sensory issues relating to his right leg. After subsequent consultations, Dr Pope recommended surgery at the lumbar level of Mr Dean’s spine.

Mr Dean argued that Dr Pope performed a lumbar spine surgery when (as argued by Mr Dean) his symptoms were related to a problem in his thoracic spine.  At no point during multiple consultations with Dr Pope did Mr Dean disclose that he was suffering from other sensory symptoms elsewhere at the thoracic level.

Dr Pope denied the allegations and defended the matter (successfully) on the basis that it was reasonable for him to perform the lumbar spine surgery and not the thoracic spine surgery, based on the history provided by Mr Dean and Mr Dean’s clinical presentation to Dr Pope.

It is important to note that no criticism was made of the surgical technique performed by Dr Pope. The allegation was that the lumbar surgery was unnecessary, as the cause of Mr Dean’s symptoms arose because of cord compression at the thoracic level, which was not identified by Dr Pope. MRI and CT scans taken in 2015 revealed that Mr Dean had a large benign bone lesion or tumour that compressed his spinal cord at the thoracic level.

Mr Dean argued two aspects of the alleged negligence:

1. That Dr Pope operated when there was no medical or scientific foundation for the lumbar surgery; and
2. That Dr Pope did so without adequate investigation of the lower limb symptoms (radiculopathy) with which [Mr Dean] had presented

Section 5O of the Civil Liability Act 2002 (NSW) says that a professional does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

Dr Pope successfully defended the allegations of negligence on the basis that his management and treatment of Mr Dean was in accordance with peer professional practice that was at the time widely accepted in Australia.

Although Mr Dean lost his case before the primary judge (and again on appeal to the NSW Court of Appeal), it was necessary for the primary judge to determine the damages that Mr Dean would have received, had he succeeded. His Honour determined that Mr Dean would have been awarded $611,850 in damages had he won the case.