Establishing Medical Negligence - Assignment Example

To establish medical negligence, the patient (Caroline) must prove that the doctor owed the patient a duty of care; and the doctor breached that duty of care by some act or omission. The duty owed by a medical practitioner to a patient is a duty to exercised reasonable care.1 This is based on the principle that a person must take reasonable care to avoid acts or omissions which would be likely to harm any person they ought to reasonably foresee as being harmed. Certainly there would be a duty of care owed to Caroline as the doctor and patient relationship is a well established category approach.2 Was Phil one of a reasonably foreseeable class of plaintiffs?3 A duty of care was originally established by applying Lord Atkins’s “Neighbour” test from Donoghue v Stevenson stated that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee as likely to cause harm to your neighbour.”4 The modern three-stage test laid down by the House of Lords in Caparo Industries v Dickman Plc developed from this approach 5 and it is widely used in determining a duty of care by many modern courts. Firstly, it must be reasonably foreseeable that the conduct of the defendant will cause some harm to the plaintiff.6 Secondly, there must be some sufficient proximity between the parties in term of legal relationship or physical closeness.7 In relation to Sydney Water Corporation v Turano,8 there should be proximity of establishing a risk to the third party. In this case, Dr Sherbatsky has the knowledge of Phil’s financial pressure but the possibility of Dr Sherbatsky to foresee a risk on the part of Phil was remote and hence there existed no duty of care to him. The third issue or case is whether the courts under all circumstances consider it just, fair and reasonable for the law to impose such a duty of care.9 Furthermore, Jaensch v Coffey10 test of causation requires that the injured party suffer injuries as a result of a single ‘shock’. Phil’s case is too far-fetched and did not culminate into a single shock. All these facts held that Dr Sherbatsky does not owe any duty of care to Phil. Therefore the element of breach of duty owed to Phil cannot be established in this case. To determine whether the doctor was negligent in his duties; the high court of Australia decided in Rogers v Whitaker,11 that a doctor is liable for not warning a patient about a risk that may lead to a potentially serious adverse outcome from a medical procedure. Reasonable care and skill is required of ordinary skilled person exercising and professing to have those special skills. A medical practitioner should provide information and advice which a reasonable person in the same circumstances as the patient requires.12 In that regard, it can be argued that Dr Sherbatsky had the duty to advice and give Caroline relevant information concerning the sterilisation method. Having established that there was a duty of care owed to Caroline, it then becomes a question of fact whether or not that duty of care was breached by Dr Sherbatsky. For breach of duty to be established, the risk must have been foreseeable13 and not insignificant.14 Caroline is required to prove that a reasonable person in the position of Dr Sherbatsky would recognise that his negligent conduct may cause injury to her.15 In Environmental Planning Minister Administering v San Sebastian,16 it was generally accepted that the plaintiff does not have to prove the exact manner in which her/his injury took place as long as the risk was reasonably foreseeable. It is reasonably foreseeable that if Dr Sherbatsky failed to provide proper medical advice and treatment; then it can cause injury or harm to Caroline or someone in the relevant class (other patients).17 As an obstetrician, Dr Sherbatsky ought to have foreseen that Bleier clips can dislodge easily and advise his client accordingly. Furthermore the doctor did not take any action to advise his clients to undergo testing so as to make sure that the procedure was successful, yet he knew that its effectiveness is questionable. A person is not liable for harm caused as a result of failing to take precautions against a risk of harm unless the risk was not insignificant.18 This is a departure from the common law test that a foreseeable risk can be a remoteness risk as long as is not too far-fetched or fanciful’ as per Mason J stated in Wyong Shire Council v Shirt.19 Given that Dr Sherbatsky being a health professional has wide knowledge of medical procedure and information, plus the knowledge of his patient not wanting to have any more baby and her financial condition, therefore the risk of harm in this circumstances is ‘not insignificant’. The calculus of negligence approach requires the court to determine the measures that should have been taken by Dr Sherbatskey in response to the foreseeable risk. The court tries to balance the magnitude of the injury and probability of its occurrence with the difficulties, expense and inconvenience that Dr Sherbatskey would have gone through in trying to avoid the injury. This was the case in Turner v The State of South Australia where one should guard against a foreseeable risk which can be considered as not remote, by adopting means which involves little expense-the failure to adopt such means was seen as negligent.20 In determining whether a reasonable person in the position of Dr Sherbatsky would have taken some steps to prevent risk, the following considerations are made; First, s5B (1)(c) of Civil Liability Act 2002 requires one to consider the possibility of harm occurring. In this case, 1.5 % (1.5 out of 100) compare to 1 out of 14,000 in Rogers’s v Whitaker21, probability of harm is high. Secondly, in accordance with to Cattanach v Melchior, he ought to consider whether the gravity of possible harm is high enough to be considered serious.22 Thirdly, he ought to have realised that the burden of taking precautions to avoid risk of harm to Caroline is low; since attending conferences and giving proper medical advice is not a large burden for him. Similarly, the fact that Dr Sherbatsky is busy and don’t have time to attend is inadmissible. Finally, Dr Sherbatsky justification for not taking precaution cannot be acceptable since he is a medical professional; and had complete knowledge on sterilisation procedure, and also what harm it could have caused to Caroline in the event that she got pregnant. The circumstances that Caroline stands at prove the nature of the risk as significant since she can suffer immensely in the event that she gets pregnant; because of her financial woes. In such circumstances, a reasonable Doctor in the Dr Sherbatsky’s positions would have taken adequate precautions To conclude, when probability of harm occurring and seriousness of harm weight more (high) than burden of taking precautions and justification for not taking precaution has indicated that a breach of duty from Dr Sherbatsky to Caroline is well established. A reasonable person in a Dr Sherbatsky’s position would have taken account of these factors and taken steps to avert the risk and since this did not happen, Dr Sherbatsky committed a breach of duty. Read More