Medical Negligence Notes PDF

Preview

Summary

Download Medical Negligence Notes PDF

Description

Step 1: PAL: Parties, Actions, Cause of Loss/Damage Step 2: CCC: Context of Claim and Duty, Calculus of Negligence/Factors/Breach, Causation Step 3: LOAD: Legislation, Outcome, Arguments, Defences

GENERAL NEGLIGENCE Tort of negligence has three main elements: Donoghue v Stevenson [1932] AC 562 Grant v The Australian Knitting Mills [1936] AC 85 1. Duty of Care: Whether or not the defendant owed a ‘duty of care’ to the plaintiff. Was reasonable care taken? Practitioners owe patients a duty of care, which means you can expect a certain standard of treatment when you visit your local doctor or any another medical professional in the industry. If they breach this obligation by not taking reasonable care, you could have a strong case for compensation. You must show the medical practitioner's approach was not the course of action a reasonable person in the profession would have taken. Duty of care is an obligation imposed on a person to take reasonable care to ensure that they do not, through their conduct, cause another to suffer harm (damages). Wrongs Act 1958 – Section 48 (1) A person is not negligent in failing to take precautions against a risk of harm unless – (a) The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) The risk was not insignificant; and (c) In the circumstances, a reasonable person in the person’s position would have taken those precautions. 2. Breach: Whether or not the defendant breached their duty of care The following factors are also taken into consideration  Failure to provide a reasonable standard of care Standard of care in Victoria is tested by:  Determining the foreseeability of the risk (Section 48(1)).  The significance  Whether or not a reasonable person in the plaintiff’s position would have taken those precautions (Section 48(2)).



Wyong Shire Council v Shirt (1980) 146 CLR 40 (Breach of Standard of Care) Matters relevant to determining whether there has been a breach in the standard of care include: whether a reasonable person would have foreseen the risk of injury; whether they reasonably responded to this risk; the magnitude of the risk; the probability of the risk occuring; the expense and difficulty of taking alleviating action.

3. Causation of Harm: In determining the liability of the defendant the court takes two factors into consideration. Causation: Known as the link between the breach and the harm suffered  When establishing causation, the court uses the ‘but for’ test in order to determine whether the actions or omissions of the defendant led to the plaintiff’s suffering (Section 51(a)).  Once this has been determined/proven, the court will then determine the amount of defendant’s liability (Scope of Liability). Factual Causation ‘But for’ Test  Negligence must be necessary condition of the harm (Wrongs Act s51(1)(a).

     

Would injury have occurred (balance of probabilities) but for D’s negligence (Barnett v Chelsea & Kensington Hospital [1968]) ‘But for’ test, as a negative criterion, has important role in determining legal causation. However, not exclusive criterion – also matter of common sense (March v Stramare (1991)) But for test won’t apply if; (March v Stramare (1991)) Simply proves D’s presence at place/time of injury, which doesn’t increase risk of harm; D is negligent but the aspect causing injury is not (eg head-on-collision – person on correct side of road not negligent even if speeding). Sometimes necessary to determine what P would have done if D not negligent (Wrongs act 51(3); Chappel v Hart [1998])

Scope of Liability: What is used to determine what extent of the plaintiff’s damage is the defendant liable for. Elbourne v Gibbs [2006] NSWCA 127 The court considered factors relating to causation in information cases. These include remoteness of risk; the patient's desire for treatment; previous and later procedures undertaken; degree of faith in the doctor; the patient's knowledge; the need for treatment and alternatives available.

MEDICAL NEGLIGENCE Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 – case that established liability for professionals (in general). Medical negligence or malpractice refers to professional negligence where a health care professional provided treatment to a patient that was inadequate and as a result caused the patient, harm, injury or death to the patient. Such negligence includes the following: 

Wrong diagnosis, Medicine dosage, Health management, Treatment and after care.

Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582 The Bolam principle is that a doctor is not negligent if he or she acts in accordance with common medical practice accepted by a responsible body of medical opinion, even though there may be other practices that exist. Therefore, the standard of care was a matter of medical Judgement. The significance of this case was to establish a liability test for professionals. However, in Australia, the governments decided not to adopt the Bolam test outright, but rather, adopt a modified version that would still allow judges to reject doctors’ opinions in medical negligence cases, if their opinions are irrational. Legal Principle: The medical practice following in the particular scenario in question by a respectable body of medical opinion will negate a finding of negligence. Rogers v Whittaker (1992) 175 CLR 479; 109 ALR 625) The case of Rogers v Whittaker encompasses 3 aspects, these aspects being diagnosis, advice and treatment. The case involved the risks associated with eye surgery. There was a failure by the medical professional to warn the patient of a condition. The issue in this case was whether the surgeon was liable for a failure to warn of these complications.

The High Court case of Rogers v Whitaker held that the courts in Australia do not judge a doctors competence by reference to the generally accepted practices of the medical profession but whether it conforms to the standard of reasonable care demanded by the law. That meant that questions of competence were to be decided by the judges and the courts as opposed to the medical professionals The court found that the surgeon had been negligent by failing to warn the patient of the possible side affects. The standard of care previously followed was the Bolam Principle however; in this case the court determined that the standard of care should not solely be determined by the opinion of a number of professionals. The significance of this case is that the High Court rejected the Bolam test and said that the common practice of doctors is only a small aspect of determining professional negligence. It was also established that the doctor’s duty is broad and covered the examination, diagnosis and treatment of the patient. Legal Principle: The test for negligence depends on all the facts and circumstances. A respectable body of opinion test (Bolam) is not conclusive. One respectable contrary opinion can theoretically result in a finding of negligence. Nexakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 The case involves a 12-year-old boy that was hit on the head during a fight after school. A GP referred him to Western General Hospital and Nexakis was seen by a neurosurgeon who examined him and treated him for a brain haemorrhage. Nine days after, Nexakis collapsed at home, had internal bleeding from a burst aneurysm. The issue in this case was whether or not the hospital or neurosurgeon negligent in its treatment and failure to diagnose correctly. The Supreme Court of Victoria determined that there was no sufficient evidence of negligence. However, the High Court found that the trial judge was wrong. The case is significant because it supports the Rogers v Whittaker approach and it was determined that it not only applies to failure to advise of material risks but that it also applied to the failure to correctly diagnose. Both Rogers v Whittaker & Nexakis v Western General Hospital determine that the standard of care and the liability of professionals is a matter to be determined by the courts and not up to the professionals to determine negligence. Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 (Failure to warn) This case relates to Mrs Beryl Hart who was going to have throat surgery. The patient did not want her voice to be affected by the operation. Dr Chappel, failed to warn the plaintiff of the risks of the operation, especially the effect that it could have on her voice. The issue in this case was whether or not Dr Chappel was liable for negligence due to the failure to warn Hart of the risks associated with the operation. The court found that the surgeon was liable for the failure to warn even though the chances of the risks occurring were 1 in 14,000. In this case the High Court upheld the decision of the Supreme Court of New South Wales that a surgeon was liable for failing to warn a patient of a previously unreported complication of a procedure. The patient, if properly warned, would have had the operation at another time, probably with a more experienced surgeon. The decision has important implications for doctors when advising patients of the risks of surgery. The significance of this case is to establish whether or not a failure to warn can cause loss? The High Court of Australia determined that it could. Rosenburg v Percival (2002) 205 CLR; 178 ALR 577 (Failure to warn)

This is another ‘failure to warn’ case. The case covered two legal principles. The first was whether the appellant, Dr Rosenberg, was in breach of his duty of care by failing to warn the patient of risks involved. The second was whether or not the breach caused the defendant’s injuries. The court made reference to Rogers v Whittaker which established the nature of the doctor’s duty of care. Case was dismissed because the court determined that Ms Percival would still have proceeded with the surgery because of her knowledge of the medical field (she had qualifications in medicine). The significance of this case is to show the practicality of the Rogers test. It takes into consideration both the opinion of medical professionals and the findings of the court.

LEGISLATION Section 50 Duty to warn of risk—reasonable care If the defendant reasonably gives a warning or information to the plaintiff in relation to a risk or other matters will satisfy the duty of care. A person (the defendant ) who owes a duty of care to another person (the plaintiff ) to give a warning or other information to the plaintiff in respect of a risk or other matter, satisfies that duty of care if the defendant takes reasonable care in giving that warning or other information Section 51: General Principles (Factual Causation & Scope of Liability) (1)

A determination that negligence caused particular harm comprises the following elements— (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ); and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ).

(2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person ) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. Section 52: Burden of Proof Burden of proof is on the balance of probabilities Section 53: Meaning of Obvious Risk Meaning of obvious risk (1) For the purposes of section 54, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2)

Obvious risks include risks that are patent or a matter of common knowledge.

(3)

A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. (5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk. Section 54: Voluntary Assumption of Risk (1) If, in a proceeding on a claim for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised and the risk of harm is an obvious risk, the person who suffered harm is presumed to have been aware of the risk, unless the person proves on the balance of probabilities that the person was not aware of the risk. (2)

Subsection (1) does not apply to— (a) a proceeding on a claim for damages relating to the provision of or the failure to provide a professional service or health service; or (b) a proceeding on a claim for damages in respect of risks associated with work done by one person for another.

(3) Without limiting section 47, the common law continues to apply, unaffected by subsection (1), to a proceeding referred to in subsection (2). Section 56: Plaintiff to Prove Unawareness of Risk (1) In any proceeding where, for the purpose of establishing that a person (the defendant ) has breached a duty of care owed to a person who suffered harm (the plaintiff ), the plaintiff alleges that the defendant has— (a)

failed to give a warning about a risk of harm to the plaintiff; or

(b) failed to give other information to the plaintiff— the plaintiff bears the burden of proving, on the balance of probabilities, that the plaintiff was not aware of the risk or information. (2) Subsection (1) does not apply to a proceeding on a claim for damages in respect of risks associated with work done by one person for another. (3) Despite subsection (2), subsection (1) applies to a proceeding referred to in subsection (2) if the proceeding relates to the provision of or the failure to provide a health service. (4) Without limiting section 47, the common law continues to apply, unaffected by subsection (1), to a proceeding referred to in subsection (2) to which subsection (1) does not apply. (5) Nothing in this section is intended to alter any duty of care to give a warning of a risk of harm or other information. Section 57: Definition of a Professional An individual practising a professional. Section 58: Standard Of Care to be Expected of Persons Possessing a Particular Skill

Standard of Care to be expected of persons holding out as possessing a particular skill – Relates to the standard of care that is expected of a person with a set of skills. The court in making its decision whether the defendant acted with due care is determined by what is reasonably expected of a person with those skills and the circumstances as at the date of the negligence. (1) In a case involving an allegation of negligence against a person (the defendant ) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is, subject to this Division, to be determined by reference to— (a)

what could reasonably be expected of a person possessing that skill; and

(b)

the relevant circumstances as at the date of the alleged negligence and not a later date.

Section 59: Standard of Care for Professionals (Bolam Principle) (1) A professional is not negligent in providing 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 a significant number of respected practitioners in the field ( peer professional opinion ) as competent professional practice in the circumstances. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable. (3) The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4)

Peer professional opinion does not have to be universally accepted to be considered widely accepted.

(5) If, under this section, a court determines peer professional opinion to be unreasonable, it must specify in writing the reasons for that determination. (6)

Subsection (5) does not apply if a jury determines the matter. Section 60: Duty to Warn of Risk

(1) Section 59 does not apply to a liability arising in connection with the giving of (or the failure to give) a warning or other information in respect of a risk or other matter to a person if the giving of the warning or information is associated with the provision by a professional of a professional service. 

Failure to warn of risk cannot be determined by medical professionals

DAMAGES Compensation is awarded for: • Pain and suffering • Income you may have forfeited whilst recovering from the condition attributed to the negligence • Future income you may lose (known as future economic loss) as a result of the health care providers negligence • Costs associated with treatment, medications, nursing services and rehabilitation courses etc to assist in the recovery and injury repair process. The main aim of a remedy is to put the plaintiff in the same position they were in prior to the tort.  Both the precondition and post-condition of the plaintiff is taken into consideration In relation to negligence compensatory damages are the most commonly awarded to the plaintiff.

Part VBA of the Wrongs Act provides for the recovery in limited circumstances of damages for non-economic loss, such as, pain and suffering, loss of amenities of life, or loss of enjoyment of life. Under Part VBA of the Wrongs Act, a person (the claimant) can only recover damages for non-economic loss caused by the fault of another person (the respondent) when the injury is a ‘significant injury’. Section 28LF (1)

For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if— (a) the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or 

Injury means personal or bodily injury and includes: prenatal injury, psychological or psychiatric injury, disease and aggravation, acceleration or recurrence of an injury or disease.



Some injuries are defined to be significant injuries without any further assessment. These are loss of a foetus, loss of a breast or psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or foetus or child before, during or immediately after the birth and asbestosrelated conditions.

Compensatory Damages Compensatory Damages aim to compensate the plaintiff for any losses that have occurred as a result of the defendant's negligence. Todorovic v Waller (1981) 150 CLR 402 set out the main principles surrounding the compensation of plaintiff's for their losses: 1 . The plaintiff should be put b...