Medical Malpractice Law: Legal Underpinnings to Establish Liability - Case Study Example

Student’s Name Instructor’s Name Course Name Submission Date Medical Malpractice Law This scenario presents a case in law on the liability of a doctor, for Bella’s daughter Nessie’s illness, arising out of either the doctor’s negligence1. Suffice to say, the said Dr Benefico, who has since ceased his medical practice seems to take the blame, however on the other hand Bella gives herself a portion of the blame. What are the appropriate remedies for Nessie against Dr Benefico or the UWS Medical Clinic Pty Limited? The appropriate legal underpinnings to establish liability is to determine whether a duty of care existed in medical negligence, liability imposed by the Civil liability Act, 2002, whether the suit filed is to be entertained or barred by the Limitation Act 1969 and whether there is an element for contributory negligence. In general the law does not impose liability on individuals for failing to assist a person in need or to take reasonable steps to prevent a person from sustaining an injury or loss, as stated by Gummow J “that in whatever scope, a duty of care2 only imposes an obligation for a person to exercise reasonable care, but it essentially does not impose a duty to prevent potentially harmful conduct”3 Therefore it is important to note that the law does not require any defendant to take any positive steps to help the plaintiff when some additional factor is present to justify such imposition4. This is the case in point in considering the conduct of Jacob prior to him getting the virus. In view of this Jacob had gone for a single test performed by Dr Benefico, on his HIV status and had been cleared of any infection. However, after this test, Jacob did not take any reasonable steps to prevent him from acquiring the virus, as well as Dr Benefico did not take any reasonable steps to advice Jacob, on better living. In this regard, in his post HSC gap year in Africa, he continued to have unprotected sex. Therefore it raises the question of whether Dr Benefico ought to have regulated the conduct of Jacob, in events leading him to contracting the virus. The HIV scourge, is controversial issue especially when it comes to doctor’s duty of care to sexual partners5, a case in point is PD v Harvey (2003) NSWSC 487, it was determined that there was a duty on the doctor to advice and treat a patient, but during this session, her partner Bella was not around, hence there was no duty owed to her as a patient, neither there was no implication that indeed Jacob had a stable partner. Therefore to whom did the doctor have a right to inform on the medical condition of the patient, as well as advice was mainly on Jacob. The law of negligence is considered to have arisen in from common law, in civil law known as “torts” which essentially involves civil wrongs6. This was a result of the law having prior to this established that a person who was injured could not be able to sue unless there was some contractual relationship between them. Negligence however establishes liability, on the basis of the existence of a duty of care even when there is no contract7. This is mainly considered in the medical profession, that a doctor or medical practitioner must take reasonable care that a patient does not suffer from foreseeable harm on the act or omissions of the doctor. The Civil Liability Act, 2002 at section 5 defines negligence as the failure to exercise reasonable care and skill. For any person to be found liable for negligence, then the person as per section 5B (1)8 of the act must prove that; the risk was foreseeable, the risk was not insignificant and in the given circumstances a reasonable person in the persons position would have taken those precautions. The act also gives the thre3shold for who can be considered as a reasonable person. In determining who a reasonable person ought to be then one needs to consider that; the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm. In seeking to establish the liability for Dr Benefico and the UWS Medical Clinic Pty Limited, it is crucial to focus on whether the desired threshold, contemplated by Section 5 of the Civil Liability Act has been met, to hold them liable for Nessie’s illness. The duty of care has been settled law since the case of Donoghue v Stevenson9, in the determination of the duty of care, and duty not to harm others as per Lord Atkin. The threshold set for medical practitioner is usually high and they are required to act beyond that of an ordinary man10. The first issue to be considered is whether, a duty of care was owed to Nessie, then an unborn child, in early 2004 or whether it was owed only to Jacob. In Sidaway v Board of Governors of the Bethlem Royal Hospital and the Mandsy hospital and others11, Lord Diplock assert that the principal question in negligence is whether the doctor was in breach of the duty to exercise reasonable care and skill in the advice as well as in the treatment. The law thus provides that a doctor’s general duty is to act reasonably and this does not exclude the duty to give information12. One cannot say that the duty can be broken down into separate entities, such as diagnosis, advice, treatment, but it is said to apply wholly. However, there was no reasonable foreseeability then that there was a child contemplated to be harmed. Therefore, it would have been necessary for Dr Benefico to consider the risks associated with Jacob behaviour, of which he only knew him to be infection free then and he had not contemplated him having to contract any disease had he inquired. In this regard, it was negligent on the Dr on failing to know the history of Jacob, which he might have considered immaterial at the time. Moreover Cox J, in Gover v South Australia and Perria13 establishes further that the medical profession duty extends to the professional relationship including examination, diagnosis treatment whether medical or surgical, and the need in an appropriate case to provide the necessary information to the patient. It is therefore questionable whether Dr Benefico and UWS Medical Clinic Pty Ltd had expended their reasonable, care, skill and judgement, in attempting to inform, Jacob on the urgency of taking a test after 3 months. This can be said to be a duty owed to Jacob, considering the nature and advice as regards HIV treatment. Moreover, Jacob had continued to see the Dr Benefico for his Parovirus vaccination, and neither Dr Benefico nor the Medical Clinic reminded him of the test. This can therefore be a failure on the medical practitioners exercising the due standards of duty of care. There is usually a contract in existence between a patient and a doctor, hence the nature and circumstances of the particular relationship into account. The contractual relationship that exists can either be implied or express, but essentially a doctor must take reasonable care and skill when treating a patient. The relationship existing between Dr Benefico and Jacob can be said to be that of doctor- patient relationship, and there can be an implied contract on the aspects as regards treatment and right to information. Can one say that there exists a basis for which a patient can self-determine how they make they make medical decisions and that of being given sufficient information to make informed decisions14. The case of Schloendorfff v Society of New York Hospital15, it is thought by Cardozo J that the reasonable duty of care of a medical practitioner should be considered on a patient-oriented standard, than only focusing on the doctor’s conduct, as it is usually considered whether the doctor did act reasonably. This can be considered on the basis that Jacob understanding the nature of HIV had continued to have unprotected sex, understanding that it would increase the chances of chances of getting the virus. Bella on the other hand exposed herself to the virus by having unprotected sex, even on the insistence of Jacob. This is very difficult to establish the link between the contracting the virus and the role of the doctor. The only failure on the doctor is on the right to inform, however, the conduct of the partners, does show that there is contributory negligence on their part in Nessie’s illness. What therefore includes treatment? Treatment can be said to include the sufficient provision of information to the patient to enable him make an informed decision about the relevant medical procedure. A breach of contract is not usually the most ideal but it is usually considered as an n alternative to negligence. Proving existence of a contractual relationship is quite difficult as opposed to negligence. What then is the required threshold for determining whether the standard of care is met? The standard of care or reasonable care required in the giving of information is the same as that which is required in relation to the giving of necessary information F v R16 with the standard being considered of an ordinary skilled man exercising and professing to have that special skill as established in Bolam v Friern Hospital Management Committee17. This is in consideration of McNair j, stating that when determining the standard of care required of a doctor is advising and treating his patient is in the ordinary skilled man, and it is sufficient if he exercises the ordinary skill of an ordinary compete tent man exercising that particular art. This can be assessed on Dr Benefico failure to adequately inform Jacob on the risk associated with having unprotected sex, even though it did not arise , but there is always an implied right to inform the patient. Risks that should be adequately and reasonably discuss with their patients, are those that are material, which can influence the decision of a reasonable person in the situation of the patient as stated in F v R. If the risk is so minimal then it need not be discussed, as established in Victorian case, Petrunic v Barne18 as long as it would not have influenced the patient position. The risks in this regard, were in relation to the HIV virus; hence Dr Benefico ought to have discussed them to prevent Jacob from contracting the virus, which he had later considered when he sent the letter to Jacob for a follow up test. On the other hand, case law has determined that if the patient does not require information then it need not be forced on the information (F v R), but it is not mentioned whether there was any attempt on Jacob to refuse information from Dr Benefico. The nature of treatment, whether it would be necessary to preserve the patient’s life Gover v State of South Australia and Perriam. This is crucial, because had Dr Benefico advised Jacob, on how to live healthy, then Nessie’s life would have been preserved. In Haughian v Paine19there is duty to provide information20 if in consideration of the magnitude of the possible harm is considered, in which both Dr Benefico and UWS Medical Clinic Pty Ltd failed to consider. The law insists on even if the chance of it occurring is slight Battersby v Tottman and State of South Australia21 A patient can recover damages22 for the doctor’s negligence if it can be reasonably proved that the injury was in fact caused by the doctor’s negligence. This is in instances where the doctor failed to provide the necessary information. The plaintiff must prove that if they had been properly informed of the nature of treatment, which caused the injury and that a risk that should have been disclosed in fact caused the injury. However in these circumstances, even when a doctor is found negligent in failing to provide adequate information, the patient may fail to prove that the doctor’s negligence did not cause the injury. Therefore, did the doctor’s negligence because the injury’s is looked at objectively as per Chatterton v Gerson23 The Limitation Act, 1969, no. 3, Division 2 at section 14 (1) provides that a cause of action, that arises out of a contract, or tort, cannot be entertained if it is brought after the expiration of the limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. The tort of negligence relied upon by Bella is based on a breach of a duty of care by Dr Benefico, in 2004, with the proceedings being filed on the 4th of September 2012. This suit can be said to have been statute barred based on the fact that the tort, had in fact occurred 8 years ago, and a court of law cannot entertain the suit. However, this section does exempt a contribution between tort-feasors as per the provision of section 26(1)24. Section 26(1) as read with the Law Reform (Miscellaneous Provision) Act 1946, an action for contribution is not maintainable if it is brought after the first to expire; the limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action. In this regard, the injury caused by the breach was brought to the attention of Bella on the 9th of April 2012, and the suit was filed at least 5 months later after the finding out of the breach. This means that it can be entertained on the basis of it being filed within the limitation period of four years running from the date of expiration of the limitation period for the principal cause of action. The date of cause of action as enshrined at Section 50D is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: that the injury has occurred, the injury was caused by the defendants fault and that the injury was sufficiently serious to justify the bringing of an action on the cause of action. In this regard, therefore, the date of the cause of action can be positively stated to be 9th of April 2012 when Bella came to know about the nature of her Daughter’s Nessie’s condition. Section 5S of the Civil Liability Act, provides that contributory negligence can defeat a claim, especially when determining the extent of a reduction in damages by reason of contributory negligence. A court may determine a reduction of 100% if the court thinks it just and equitable to do so with the result that the claim of damages is defeated. Therefore, in civil law, Bella ought to be able to prove on a balance of probabilities that were it not for Dr Benefico and the Medical Clinic breach, Nessie her daughter ought not to have contracted the virus. Nessie can be considered to be a third party to the proceedings, and the procedure for awarding damages would be followed as provided at section 19 of the Civil Liability Act, 2002. The Civil liability Act at Part 10, section 68 provides that an apology means “an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.” Section 6925 provides that the effect of an apology made on behalf of a person in connection with a matter alleged to have been caused by that person, does not express an admission of fault or liability of the person, as well as it is not relevant to the determination of fault and liability. In this view Dr Benefico letter cannot be taken to imply, guilt and fault, as well as it is not admissible in a court of law26. In this view therefore, the establishment of an existence of the duty of care in medical law is clearly enshrined in the Civil Liability Act 2002. A proof of all elements of the negligence, that of duty of care, a reasonable standard of care, causation and the plaintiff loss was a result of the breach of the duty, is a basis for accessing liability. However, it can be positively stated that Dr Benefico and UWS Medical Clinic Pty Limited are liable for the injury suffered by Nessie. However, they are not entirely to blame based on the fact that there is in essence contributory negligence on Bella’s failure to have protected sex. The extent of Nessie’s compensation would be based on the liability imposed on the medical Practionner and the clinic, depending on the percentage imposed by a court of law27. Works Cited Butterworths, 2002. Civil Liability Act, 2002 NSW. Davies, M Bell and Brereton Le Gay. Torts in Nygh's Conflict of Laws in Australia. 8th. Sydney: LexisNexis, 2010. Dawes, P J D. & Davison, P. “Informed Consent: What Do Patients Want to Know.” Monash Bioethics Review,13 (4):20 – 26 (1994). De Luca, R J. “Patient Information and Informed Consent: A Linguist’s Perspective on Ethical Dilemmas” Monash Bioethics Review Ethics Committee Supplement, 13 (4): 10 – 15, (1994). Deakin, S., Angus J., and Basil, M. Markesinis and Deakin's Tort Law. Oxford University Press, 2003. Dean, M. H. Contemporary Issues in HealthCare Law and Ethics, 3rd. New York: Health Administration Press, 2008. Glannon, J W. The Law of Torts. 3rd. New York: Aspen Publishers, 2005. Harris, D., Campbell, D., and Halson, R. Remedies in Contract and Tort, 2nd edn, London: Hirsch, D. and Cashman, M.B. PD v Harvey: Revisisting a doctor’s duty of care to sexual partners, Law Bulletin,11 (10) : 109-112, (2003). Kennedy, I. and Andrew, G. Medical Law; Text and Materials, London:Butterworth & Co, 1989 Kennedy,I. and Grubb, A. , Medical Law: Text & Materials.3rd. London: Butterwoths 7 MLR 255, 2000. Kirby, M. “Informed Consent: What does it mean?” J Medical Ethics 9:9-75, (1983) Limitation Act 1969, NSW. Lord Irvine of Lairg. The Patient, the Doctor, their Lawyers & the Judge: Rights & Duties. 1999 Mason, J.K. and Laurie, GT. Mason & McCall Smith: Law & Medical Ethics, 7th ed. London: Oxford University Press, 2005. Murphy, J., Street on Torts, 11th edn, London: Butterworths, 2003. NH & MRC (1993) General Guidelines of Medical Practitioners on Providing Information to Patients, Canberra. Robinson, W A. and Yeldham, B A. The application of Rogers v Whitaker in the Courts. J. Law Med , 3:222-224. Roy, G. B. Duty of Care: The Need for Informed Consent, The Official Journal of the Australian College of Legal Medicin, 3(1) 2003. Stapleton, J. Unpacking Causation in Cane, P. and Gardner, F. (eds) Relating to Responsibility, Oxford:Hart Publishing, 2001. Weir, T., A Casebook on Tort. 10th ed. London: Sweet & Maxwell, 2004. Read More