Abstract
Ellen E. Beerworth, John W. G. Tiller:
We thank Christopher Alderman and Dr Kirszenblat for their comments.
We were well aware that our article [1] about liability in prescribing choice was likely to prove controversial. We did not, however, consider that to be a reason not to draw doctors' attention to the very real potential for claims, and in some instances liability, whenever the soundness of a prescribing decision can be called into question. It is important that doctors are aware of this potential, given the increasing litigiousness in our community.
This is an era of evidence-based medicine, although there remain many areas of clinical practice where clinical judgement and the art of medicine are required in the absence of specific evidence. The exercise of clinical autonomy does not, however, absolve the clinician from accountability, including peer and legal accountability.
It is important to bear in mind that the potential for liability in prescribing choice existed well before the recent decision in the Lipovac case [2]. That potential has become all the clearer as a consequence of that decision. Our article did not create a new legal basis of legal liability for doctors; rather, it illustrated an existing basis of liability.
We consider it extremely important for doctors to recognise that they do not prescribe in medical isolation, but do so within a legal, social and cultural context. The emerging legal reality is that courts can and do evaluate and judge prescribing and other medical treatment decisions. The message from the High Court of Australia [3] is clear: a court will not determine the standard of care and skill in prescribing solely or primarily by reference to ‘acceptable’ medical practice, but will take this into consideration in its own determination of the appropriate standard. Doctors who choose to ignore the High Court's message do so at their risk.
There are a number of examples we could have chosen to illustrate the potential for liability in prescribing choice. The potential applies to treatments in all areas of medicine. Given the sometimes polarised debate within the Australian medical community about the comparative efficacy, tolerability and toxicity of the older and newer antidepressants, we were well aware that our chosen example might prove controversial. A less controversial (but also less topical) example is the barbiturates versus the benzodiazepines for sedation.
Irrespective of the example, the principle remains the same. That principle is that a court can and will hold a doctor legally liable for an injury caused by the decision to prescribe a more toxic medicine in preference to a medicine with lower toxicity, if the decision is not supported by compelling medical reasons.
Our discussion concerning the older versus the newer antidepressants was neither presented nor intended as the final word on comparative efficacy, tolerability and toxicity of those agents. Inevitably, more data concerning the comparative merits will become available over time. We sought, rather, to use this example to outline some of the factors that should be considered when prescribing any medicine.