Medical Law Problem - Essay Example

?Medical Law 26 May MEDICAL LAW PROBLEM I will advise Paulo to file a case of tort of battery against Dr. Torr for treating Paulo against his will.“The High Court held that any physical contact with a competent adult patient without his or her consent to that contact is a prima facie evidence of battery”(Murphy 2007, p. 298). In the case at bar, no valid consent was obtained from Paulo prior to the surgical treatment which was done to him. The nurse who assisted Dr. Torr during the operation is also solidarily liable for the tort of battery and negligence of the doctor for failure to obtain the consent of Paulo Being a nurse who belongs to the medical profession, she owed the patient a duty of care. She breached that duty of care by acting in a manner inconsistent with the reasonable standard of care which caused Paulo to suffer injury as a result of her breach of the duty of care. She knows that it is mandatory to obtain the valid consent of the patient before any medical or surgical treatment is performed on the patient. Hence, she must also be made liable for the damages, together with the doctor for the injury sustained by Paulo. The hospital also has a vicarious liability for the tort of battery and negligence committed by their doctor and nurse. As their employers, the hospital can be sued in the event their employees cannot compensate Paulo for the damage caused to him. Under the law, Paulo has the right to sue the hospital, and in return, the hospital has the obligation to compensate Paulo for the unsafe medical practice committed against him. Paulo should also file a case for negligence and damages against Doc Torr for his failure to warn him of the risks and side-effects of the surgical treatment before the actual operation. Clearly, there was a breach of duty on the part of the doctor for failure to inform his patient that there is a 0.5% possibility that he will lose his voice. Such material fact should be made known to the patient since the doctor knows that the patient is an opera singer by profession. Paulo has the right to request for his health record, “which consists of information relating to the physical or mental health or condition of an individual made by a health professional in connection to his care”( BMA Ethics). Before a medical practitioner examines and/or treats a patient, a valid consent must be given by the patient. If the said doctor proceeds with the examination without obtaining consent from the patient, whether express or implied, and done against that person’s will and without any statutory authority to do so, that surgeon may incur civil liability for violation of the tort of trespass against the person and criminal liability in accordance with the provisions of Offences Against the Person Act of 1861. The truth is that most cases covered by this area are brought about due to negligence as the cause of action in the tort or damage committed by the doctor. However, in order for the action to prosper, the claimant must show proof that a valid consent from the patient to allow the medical treatment was absent. In this case, no valid consent was obtained by Dr. Torr from his patient Paulo. Thus, the doctor is liable for negligence. The term “consent” was best described in the case of Cardozo J, Schoelendorff v New York Hospital which provides: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.1” While in the case of F V West Berkshire Health Authority, Lord Goff has stated that: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body”. 2 In the case at bar, Paulo is an adult who has the capacity to give consent to the medical treatment that will be done to his own body. The requirement of consent to treatment reflects the basic right to self-determination. The act of Doc Torr makes him liable for two things: 1.) Failure to obtain a valid consent from his client; and 2.)Non-disclosure of the vital information of inherent risk involved in the medical procedure which was to be conducted to the patient and misleading patient that there was no risk involved. These acts constitute a “breach of the doctor’s duty to give the patient proper and skilled advice and be actionable as negligence”3. “The failure of the medical practitioner to give medical advice to his patient can vitiate a patient’s consent to the treatment giving rise to battery and also constitutes a breach of the medical practitioner’s duty to inform, thus results to negligence. This failure to informs results to two torts of battery and negligence, medical trespass and medical negligence”(Feng 2006, p.149). This principle is in accordance to the standard of competency of adults who can refuse any medical treatment for reasons that are "rational or irrational or for no reason" as enunciated in the case of Sidaway v.Governors of Bethlem Royal Hospital. The Doctrine of informed consent was defined as that which states that the patient is not considered to have given valid consent unless he or she is informed of all material risks and the consequence of each procedure. Lord Scarman stated that: (1) The root premise is the concept that every human being of adult years and of sound mind has a right to determine what shall be done with his own body. (2) The consent is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each: (3) the doctor must, therefore, disclose all "material risks"; what risks are "material" is determined by the "prudent patient" test, which was formulated by the court, at p. 787: "a risk is … material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy." 4 While in the case of Chatterton V. Gerson, the High court ruled through Bristow, J. that “where a surgery or a more serious invasive treatment is contemplated, patients are usually asked to sign a standard form agreeing to the operation or other treatment. The consent is ineffective unless an adequate explanation of the broad nature of what is to be done to the patient is provided”.5 “It seems that medical practitioners are now under an obligation to disclose all risks that the court would deem signi?cant based on on its objective assessment of what the reasonable patient would want to know”(Heywood, Macaskill and Williams, 2010). Failure on the part of the doctor to comply with this requirement constitutes a breach of his duty to give proper advice to the patient, which makes him liable for negligence. In the case of Chappel v Hart, the High Court ruled that the patient is entitled to receive damages based on the inconvenience suffered by the victim. The patient had not been given a warning of a very rare risk involved in the operation which she unfortunately experienced. The Court accepted her evidence that if she had been warned of that risk involved, she would have had the operation done at a later time by a more experienced surgeon. The court awarded her damages for the simple reason that they believe that if she had done this, she would most likely not have suffered the complication brought about by the surgery, because the risk was so rare6. “The National Health Redress Act of 2006 was carried out to remedy the heavy toll of unsafe medical practice. The redress package offered compensation for injuries among patients, an apology and a report of action taken to similar circumstances”(Quick 2006). The case of Paulo falls under this category. Therefore, the act of Doc Torr constitutes negligence because he committed a breach of duty since he did not disclose to Paulo the possible side-effects and risks of this operation. In the case of Chester V. Afshar, the High Court held that that the “there was a causal connection between the failure to inform and the injury that patient sustained after the surgery. The surgeon had breached the duty of care to the patient, regardless of the fact that she might have proceeded in any event. The Court awarded the patient the compensation on the basis that had she been warned, then the future would have happened differently, even if the outcome remained the same”7. Verily, in the light of the same attendant circumstances in Paulo’s case, he is entitled to claim for damages. Here, the tort of battery and negligence was present when the doctor informed Paulo that the medical procedure is 100% risk-free, when in truth and in fact, there is a 0.5% possibility of voice loss. Such material information should have been disclosed to the patient before undergoing the medical procedure. Paulo is a well-known opera singer and singing is his passion. His voice is an important asset that he must preserve. After the surgical treatment, he completely lost the chance to sing again due to the loss of his voice. The doctor mislead him by giving a guarantee that the procedure is safe. In the case of Appleton V. Garrett, The High Court ruled that it is only when the defendant misleads the patient will a claim for battery be applicable.8 Thus, the doctor is liable for a claim for battery. The time-honoured “principle of autonomy” should be highlighted as laid down in the case of Airedale NHS Trust v Bland9 [1993] 1 All ER 821 Lord Keith stated: “The first point to make is that it is unlawful, so as to constitute both the tort and crime of battery, to administer medical treatment to an adult, who is conscious and of sound mind, without his consent. Such person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die.” While in the case of Ms B v An NHS Trust10, It was held that she had capacity and so her continued treatment without her consent was unlawful. Dame Elizabeth Butler –Sloss stating: “...the right of the competent patient to request cessation of treatment must prevail over the natural desire of the medical and nursing profession to try to keep her alive.” Under the law, Paulo has the right to refuse the surgical treatment even if it meant putting his life at risk and in danger. He has the power to exercise the right of self-determination. This was discussed in the case of Re: T, where the High Court ruled that: “Even if it is unclear whether the patient freely and with full understanding rejected the life-saving treatment, the doctors acted lawfully in erring on the side of preserving life”.11 To conclude, Paulo must file a case against the doctor for negligence for his failure to disclose the inherent risks involved in the operation. As a medical practitioner, he has the duty to meet the applicable standard of care to the patient by informing him any side-effects or risks that will result after the operation. According to Smith (1993, p. 340), “there are two mental states which attract liability, negligence and recklessness. Negligence exists where the conduct fails to meet the standard expected in the circumstances, either through inadvertence, misjudgement or sheer incompetence.” Here, it can be gleaned from the facts of the case that the doctor intentionally kept the information. As Paulo’s doctor, he has the “duty to give the patient the information that he needs in order to fully understand the situation. He should also respect the right of Paulo to reach his decision about the treatment to be done to him”(GMC). Clearly, there exists a breach of duty on the part of the doctor for non-disclosure of the health record of the patient. He purposely did not inform the patient of the material fact because he did not want to scare the patient and cause to panic. Although the intention of the doctor was for the benefit of patient in order to be relieved of his worries, the end does not justify the means. I will also advise Paulo to file a case for damages against Doc Torr for breaching the doctor-client privileged communication when he allowed himself to be interviewed by The Daily Update and showed the reporter the images of the lump of Paulo which was taken during the endoscopy. This personal information about Paulo was printed in The Daily Update which was made known to the public. The doctor’s act constitutes a breach in the confidentiality of the personal information of his patient which he should have kept to himself and should not be circulated in public. In the case of Campbell V. MGN12, the Court ruled that any person who shall misuse a private information against a person shall be liable for breach of confidence and violates the human rights principle of privacy. “Patients have a right to expect that information about them will be held in confidence by their doctors” (GMC 2006). The doctor also made fun of Paulo by telling his friends that Paulo was a weakling because he was frightened of undergoing the endoscopic test procedure. Such behaviour of the doctor must be punished for conduct unbecoming of a doctor for exhibiting a malicious and distasteful behavior. “As a doctor, he has the duty to protect and promote the health of his patient, be honest and open and act with integrity and never abuse the patient’s trust”(GMC 2006). This should entitle Paulo to claim for economic damages for the injury he sustained from the operation which caused the loss of opportunity to sing and also for punitive damages for the wanton and wilful conduct exhibited by the doctor to his patient.  References: Statutes Family Law Reform Act 1969 s.8 Mental Capacity Act of 2005 Offences Against the Person Act 1969 Case law, journals and books: Airedale NHS Trust v Bland [1993] 1 All ER 821. Appleton V. Garret [1996] PIQR P 1. British Medical Association (BMA) (2008), Access to Health Records. Retrieved on April 3, 2011, from < http://www.bma.org.uk/images/accesstohealthrecordsdecember2008_tcm41-183583.pdf> Brazier, M. and Cave E., Medicine, Patients and the Law 2003 Chap.4, LexisNexis, UK. Buckley W.R. and Okrent, 2004, C. J. Torts and personal injury law. Delmar Learning, Canada. Cardozo J, Schoelendorff v New York Hospital 211 N.Y.125 (1914) Chappel v Hart [1998] 156 ALR 517] Chatterton V. Gerson [1981] QB 432, at 443 Choong, K., ‘Chester v Afshar: Form and substance in the House of Lords’ (2005) Professional Negligence 119 F v West Berkshire Health Authority [1989] 2 All ER 545, [1990] 2 AC 1 F V West Berkshire Health Authority [1989] 2 All ER 545; Feng, T.K., 2006, Failure of Medical Advice: Trespass or Negligence?, Legal Studies, The Journal of the Society of Legal Scholars, Volume 7, Issue 2, page 149 General Medical Council, Good Medical Practice: Confidentiality (2006), Retrieved on April 3, 2011, from General Medical Council, Good Medical Practice: Duties of a Doctor (2006), Retrieved on April 3, 2011, from < http://www.gmc-uk.org/guidance/good_medical_practice/duties_of_a_doctor.asp> Gillick v. West Norfolk and Wisbech Area Health Authority (1986) AC, 112. HE v An NHS Hospital Trust [2003] EWHC 1017 Heywood, R., Macaskill A. and Williams, Kevin. , Informed Consent in Medical Practice: Health Professional’s Perspectives and Legal Reflections.(2010) Medical Law Review, 152-184 Ms B v An NHS Trust [2002] EWHC 429 (Fam). Murphy J. and Street, H. Street on Torts, 12 ed., Oxford University Press, NewYork, p. 298. NHS Trust v T [2004] EWHC 1279 (Fam) Nielsen v Denmark [1989] Quick, O., ‘Outing medical errors: questions of trust and responsibility’ (2006) Medical Law Review 22 R v St George’s Healthcare Trust v S (1998) 44 BMLR 160 Re : AK (Adult Patient) (Medical Treatment: Consent) [2001] 1 FLR 129. Re: C (Adult: Refusal of treatment) (1994) I, WLR, 290. Re: MB (1997) 38 BMLR 175 (CA) Re: R (A minor) (Wardship: Medical Treatment) (1991) 4, All ER 177, CA. Re: T (Adult refusal of medical treatment) [1992] 4 ALL Er 449. Re: W (A minor) (Wardship: Medical Treatment) (1992) 4, All ER 627, CA. Re:E (A Minor) (Medical Treatment) [1991] 2 FLR 585 Rochdale Healthcare NHS Trust v. C [1997] 1 F.C.R. 274. Sidaway V. Governors of Bethlehem Hospital [1985] 2 W.L.R. 480. Smith, A.M., 1993, Criminal Negligence and the Incompetent Doctor, Medical Law Review, p. 349 Tickner, K., ‘Rogers v Whitaker – giving patients a meaningful choice’ (1995) 15 Oxford Journal of Legal Studies 109 W Healthcare NHS Trust v H [2004] EWCA Civ 1324. Read More