Intro to Med Law: 3 Conceptions Flashcards
What are the three types of actions that can arise from a Doctor and Patient relationship?
- Breach of contract
- Battery
- Negligence
What is the impact of Dudley v Stevens?
The law: You can’t kill another to save your own life, the exception being self defence.
What are the main elements needed to form a contract
- Offer and Acceptance
- Consideration
- Intention to enter into a legal relationship or to be legally bound
What does Picard say about contracts related to doctor/patient relationships?
A patient’s request for treatment is an offer. Acceptance is signified by the doctor’s undertaking of the treatment and the consideration provided is the promise of payment.
What authority can we use for the proposition that the relationship between patient and doctor is contractual in origin?
The English case of: Sideaway v Board of Governors
What is the problem with an action in contract?
Contract is formed orally between the parties and it can often be hard to make out express terms of the contract. In that case, it’s hard to find express terms. Often, Plaintiffs seek to argue an implied term was in the oral conversations. Gets difficult because of cases: Eyre v Measday and Thake v Maurice
What are the facts of Eyre v Measday?
Woman wanted sterilisation operation. Doctor told them procedure was “irreversible”. She had operation, resumed sexual relations with husband, got pregnant.
After birth she sued for Breach of contract, arguing an implied term that the process would be absolute, was in the contract.
Eyre v Measday
What is the point of law in this case?
The Court of Appeal did not want to imply a term of such a nature. They looked at when a term would be implied, focusing on the case of The Moorcock. The principle from this: REASONABLE BYSTANDER- Would a reasonable bystander look at the situation and infer that the Defendant was promising to render the woman absolutely infertile?
Courts said that they would imply a term or warranty that the doctor would use reasonable skill and care.
Main law: be slow to imply a term because knowing the extent of uncertainty in the medical area, it would be unlikely that the doctor would give an express promise.
In Eyre v Measday, how did the Plaintiff’s counsel form the view that the doctor had given an express warranty?
During cross examination, they asked the doctor would it be reasonable for the patient to think they would be absolutely sterile after the operation, the doctor said yes, it would be reasonable. They also said that the doctor said “it is a permanent procedure” and that it was ‘irreversible’. It mostly means however, not that it would cure, just that the procedure would not be able to be reversed. Whether it is succesful is another matter.
What is the Moorcock principle?
A term can only be implied if it is necessary in the business sense to give efficacy to the contract. Would a reasonable person who has seen the exchange of conversation think that the term was part of the contract?
What’s another problem with an action in contract?
The plaintiff must take steps to mitigate loss. In Eyre v Measday, this would mean getting an abortion or putting up the baby for adoption. This is too harsh. Solution? The courts would give reasonable damages, but only so.
What are the facts of Thake v Maurice?
Similar to Eyre v Measday, except man getting sterilisation procedure.
What are the points of law in Thake v Maurice?
- The law does not usually imply a warranty that a professional man will achieve results. Only a term that he will use reasonable skill and care!
What are the further reason for not wanting to imply a term of absolute cure, discussed in Thake v Maurice?
- Implying a warranty that the doctor is to use reasonable skill and care, it would be inconsistent to also apply a wrranty promising a cure
- Medicine is an inexact science
