Medicine as Negligence Flashcards
What is the general rule regarding DOC in doctor/patient relationships?
A doctor owes a duty of care to his/her patient.
What are the key elements of negligence?
- There must be a Duty Of Care (DOC)
- There must be Breach of the Standard of Care
- There must be causation
- The damage must not be too remote
What is the rule regarding omissions?
Absent a SPECIAL RELATIONSHIP such as a lifeguard offering services and absent a PRIOR RELATIONSHIP, then mere omission will not give rise to liability.
What is the case concerning omissions that raises doubt?
Lowndes v Woods
What are the facts of Lowndes v Woods?
Mother went out for walk, came back to see son convulsing. She sent out first son to get ambulance, next her daughter to get doctor.
Daughter came across doctor and asked for help. He refused.
There is no prior relationship between Doctor and Patrick woods (Son that was convulsing).
By the time ambulance got there, Partrick was in a state of unending convulses. He suffered severe brain damage.
What was the decision in Lowndes v Woods
The doctor was held liable in those circumstances to attend, diagnose and treat Patrick. His failure to do so caused damage.
Proximity was used to find DOC. But this has since been abolished since Woolcock’s case.
Would we follow Lowndes v Woods?
This is a NSW case, so it is not strictly binding on Qld.
What are the two cases that deal with a DOC owed to third parties?
- BT v Oei; and
2. Harvey v PD
What are the two cases in which a general rule regarding a DOC in doctor/patient relationship can been seen to derive from?
- Rogers v Whitaker
2. Bolam
DOC owed to third parties
What are the facts of BT v Oei?
BT and AT were partners.
AT went to see doctor of symptoms. First presented in 1991. Later presented with different conditions.
Diagnosed with hepatitis. Doctor purported he had gotten hepatitis via sexual intercourse.
AT met BT, who started a relationship and subsequently had sexual intercourse.
BT subsequently contracted HIV from her sexual contract with AT
BT sued AT’s practitioner for DOC to her even though the practitioner was not her own.
DOC owed to third parties
What was held in that case?
- The D’s specialist knowledge and training equipped him to identify AT had contracted HIV. Failure to diagnose and adequately counsel AT to undertake HIV antibody test exposed AT’s sexual partner/s to the real risk of HIV. It was reasonably foreseeable that At, if HI positive, would transmit the virus to a sexual partner.
- AT would have taken the antibody if counselled by the D as evidence when he disclosed his experience of Thai prostitute and hepatitis to his wife and also to doctor. Evidence also put forth by Dr Funer who said chances are high of person notifying sexual partner that they had HIV if they were notified and would change sexual practices so as not to place their sexual partner at risk.
DOC owed to third parties
What was the ultimate decision in the case of BT v Oei?
Held: The D’s negligent failure to properly advise AT with respect to a possible diagnosis of HIV and the need for an antibody test materially contributed to the P’s infection with the virus.
DOC owed to third parties
What was held in Harvey v PD?
Had Dr Harvey asked the husband and wife, during initial consultation, to consent to giving info to each other, the court was satisfied that Dr Harvey would have received that consent.
In the event that FH refused, the finding remains that pD would have terminated her relationship with FH if she had found out he had HIV.
Either way, PD would have escaped injury she suffered if Doctor had asked for consent of both parties.
Doctor held to owe a DOC and breach.
What was the original rule regarding standard of care in negligence cases in the context of doctor/patient relationship and what is the authority?
Standard of care is the reasonable competent men of that profession or professing to have that special skill OF THAT TIME.
Bolam’s case is authority.
Original General Rule
What are the facts of the Bolam case?
Patient suffering from severe depression admitted to hospital and underwent ECT (Electric Shock Therapy). Usually involves convulsions as it stimulates nerves causing movement in muscles.
During procedure, wasn’t restrained on bed or given muscle relaxing drugs.
Electric current applied, he fell off bed from convulsing. Ended up with a broken rib.
