What is the value of professional opinion?

To the Editor: The Journal recently drew attention to circumstances in which courts have not accepted professional opinions on standard of care required in negligence cases.1,2 These include opinions formed after consulting colleagues, from doctors trained overseas or unrepresentative of national peer professional practice.

In a veterans’ entitlements case in 2004 (Linton and Repatriation Commission3), in which I was an expert witness for the Department of Veterans’ Affairs, the Administrative Appeals Tribunal did not accept an opinion on appropriate clinical management in the past from an expert whose memory of peer professional practice was contradicted by documents that were in use at the time in question, preferring the latter. However, contrary to the circumstances described by Mahar and Burke, the Tribunal did accept opinions from a doctor who consulted others and from me, even though I trained overseas.

The Repatriation Medical Authority produces “statements of principles” that enumerate factors which connect veterans’ health to service under the Veterans’ Entitlements Act 1986 [Cwlth].4 Inability to obtain appropriate clinical management is a factor in many of these statements. Tribunals have relied on professional opinion to determine the appropriateness of clinical management received by veterans.

In Linton and Repatriation Commission, a veteran claimed in 2004 that withholding corticosteroids during the 1970s constituted inappropriate management of asymptomatic hilar lymphadenopathy due to sarcoidosis.3 There was disagreement between expert witnesses. One expert, a graduate of 12 years and a newly qualified Fellow of the Royal Australasian College of Physicians (FRACP) in the early 1970s, believed that the veteran should have been offered corticosteroids. Another FRACP, who was 15 years younger and graduated in the mid 1970s, after consulting colleagues who had practised at the time in question, believed corticosteroids would reasonably have been withheld.

Despite being trained in the United Kingdom, the Tribunal accepted evidence from me on three important issues.3 First, the Tribunal accepted that textbooks used in the 1970s may contain statements of what should have been done at that time to manage sarcoidosis. Second, the Tribunal accepted that, based on the textbook on which Australian physicians probably relied during the 1970s, patients with the veteran’s condition were unlikely to have been treated with corticosteroids owing to an expectation that the condition would resolve spontaneously. Third, the Tribunal accepted that early clinical trials of corticosteroids in the treatment of pulmonary sarcoidosis between 1967 and 1976 were inconclusive and gave doctors no reason to believe that steroids would alter the long-term outcome of the condition. In addition, a 2000 Cochrane review found that the long-term effect of steroids was still unclear.5 The Tribunal, therefore, found that the veteran’s condition was managed appropriately.

Comparing the circumstances under which civil courts and the Administrative Appeals Tribunal have not accepted opinions on standard of care would reveal any systematic differences between the jurisdictions.