Medical Malpractice Law in Australia - Assignment Example

MEDICAL MALPRACTICE LAW I QUESTION ONE The Civil Liability Act addresses contributory negligence and describes the principles employed to determine negligence on the part of professionals. These principles are also utilised to ascertain whether the individual who had suffered harm had indulged in contributory negligence, by failing to take adequate precautions to avert the harm.1 Any determination of a breach of duty of care, with regard to failure to exercise adequate caution to prevent harm, is to be made with reference to the provisions of section 5B of the Civil Liability Act. Section 5R of this Act provides certain principles, and contributory negligence has to be established on their basis.2 The applicable principles for determining contributory negligence to the risk of harm, under section 5R of this Act are the same as those employed for determining negligence with respect to the risk. Such negligence is determined by considering whether the harmed person had exercised the standard of care of a reasonable person and whether that person had or could be reasonably expected to have the relevant knowledge at that time. The extent of damages to be awarded will be determined by the courts by considering the contributory negligence, in accordance with section 5S of this Act. The court may even reduce the damages by 100% if justice demands it. In Australia, there had been a well – established test to determine the liability of professionals who had been alleged to have been negligent in the discharge of their duty. This situation had been prevailing, till the enactment of the Civil Liability Act3 in New South Wales.4 In Rogers v Whitaker,5 it was held by the High Court that a prior decision of an English court was no longer Australian law. The Court made it clear that it was within its domain to determine the standard of care and skills to be exercised by a professional. This case dealt with the provision of relevant information to the patient, by the doctor, with regard to the intended treatment. 6 Standard of care is a predetermined concept which the courts apply to each individual case. It was the opinion of the High Court that section 50 of the Civil Liability Act served to reintroduce the formulation provided in the decision in Bolam v Friern Hospital Management Committee.7 This decision established the Bolam Principle, which is applied to determine the standard of care expected of professionals. 8 This norm is to be determined with reference to the practice advocated or supported by a responsible body of that profession. Furthermore, section 43A of the Civil Liability Act, states that when a public authority exercises a statutory power that requires explicit statutory authority civil liability does not arise in the usual course. However, if the exercise of the power had been such that it would have been considered unreasonable by any authority vested with such power, then civil liability would arise.9 As per section 5B(1) a person is not considered to be negligent for his failure in taking precautions against the risks of harm unless the risk is foreseeable or significant, or any reasonable person would not have taken the same decision under similar circumstances. In addition under section 5B(2) the court will take certain issues into consideration to assess whether the person had behaved reasonably while taking precautions against the risk of harm. These include, the possibility that harm will occur in the absence of the precaution, the gravity of the harm, the burden of applying precaution to avoid risk, and the social value of the action that causes the risk of harm. As such, if the present problem occurs in New South Wales the court will take into consideration all the features, under sections 5R and 5S in deciding the extent of damages to be awarded. Since the patient had not returned for treatment, even after proper advice, the court may entirely reject the award of any damages, whatsoever. II QUESTION TWO Section 5D of the Civil Liability Act requires courts to assess whether the failure of the defendant to exercise reasonable care and skill was an essential prerequisite for the harm to have taken place. In addition, the court has to determine if the failure of the defendant to exercise reasonable care and skill extended to the harm that had been caused. 10 In slip and fall cases, the courts have to decide whether there has been a breach of duty. The courts have to take into consideration what was essential as the bare minimum in the obligation to take reasonable care to prevent persons from slipping and injuring themselves. Other factors for consideration include the place where the spillage had occurred and the time of the day that this had happened.11 According to Section 5D(1) of the Civil Liability Act, while determining that negligence was behind the specific harm caused to an individual, the courts have to consider certain important elements. The first of these is that the courts have to determine that the negligence in question had been a necessary condition for the occurrence of the harm. The second element deals with the scope of the liability, and the court has to determine whether it is appropriate to extend the scope of the liability to the negligent person to the harm that had occurred.12 Rogers v Whitaker established the legal obligation of doctors, by requiring them to inform their patients about the treatment to be provided to them and the risks involved. Moreover, doctors have to be prudent regarding the significance of a particular risk to a patient, irrespective of the degree of its doubtfulness. The decision in Chappel v Hart,13 while taking recourse to this principle failed to assess the probability of the risk. 14 The High Court’s decision in Rogers v Whitaker elevated the standards of warning regarding tangible medical risks to that of a demanding legal obligation. Although the decision in Chappel v Hart relied on this obligation, it did not establish the exact probability of the risk, with regard to the plaintiff.15 In order to determine negligence, it is necessary to establish a duty of care and that its breach had resulted in the damage. Hart developed vocal cord palsy after the Dohlman operation, which had not been reported previously in such medical interventions.16 The application of standard legal principles to facts that had not been clearly explained was discernible in Chappel v Hart. As a result Chappel was unjustly judged to be negligent in warning Hart regarding the risk of vocal cord palsy. The court did not consider the foreseeable probability of the alleged risk, and indulged in intricate reasoning that was based on misinterpreted medical evidence. The medical evidence dealt with by the court, per se, was inadequate to arrive at a decision.17 If it is assumed that same events had occurred in New South Wales, like those that had transpired in the case of Chappel v Hart, then the following issues have to be taken up for discussion. In this regard, the provisions of the Civil Liability Act have to be examined. As such, under Section 5D(1) the courts will assess whether the negligence that had occurred was the necessary condition for the harm. In the Chappel case, the negligent action was not the necessary condition for the harm caused to the patient. This is because, even though the doctor informed the patient about the risks inherent in the treatment, harm could presumably be caused, as had been witnessed on several occasions. Moreover it would not be appropriate to extend liability to the doctor, as he had applied skill and diligence in the treatment. Consequently, liability for negligence cannot be extended to the doctor, since he had applied reasonable diligence and care towards the patient in the above case. As such, the decision in Chappel v Hart would have been different if it had transpired in New South Wales, and if it had been decided by the courts under section 5D(1) of the Civil Liability Act 2002. III QUESTION THREE In Lee v Fairbrother, the parties involved were a patient and a general practitioner. The sexual relationship that had developed between them failed and this resulted in a claim for compensation. The court held that the provisions of section 3(B)(1)(a) of the Civil Liabilities Act, were not applicable, as the conduct of the defendant could be categorised as other sexual misconduct. Such sexual misconduct does not attract the provisions of the Civil Liability Act, due to the exclusion provided at section 3B(1)(a) of this Act. 18 The plaintiff approached the Medical Tribunal and claimed that she had developed serious psychological problems, due to her relationship with the defendant. Moreover, she contended that the sexual relationship between her and the defendant was in breach of the duty of the defendant as a medical practitioner to her. This breach was claimed by her to be in contract and tort, and that her psychological condition was the outcome of such breach.19 The plaintiff argued that her psychological condition had rendered her incapable of consenting to sexual relations. It was determined by the Tribunal that the defendant had indulged in inappropriate conduct at the time of consultations, when he had become intimate with the plaintiff and requested a date from her. The plaintiff had consulted the defendant about a dog bite to her son and thereafter her obsessive compulsive disorder. The latter complaint had been aggravated by the dog bite to her son. 20 The Tribunal determined that the defendant and plaintiff had cohabited for some time, and that subsequently the relationship had ended hostilely. Subsequently, a complaint was lodged with the Health Care Complaints Commission against the defendant. This resulted in proceedings being brought against the defendant before the Tribunal. The latter directed that the defendant’s name was to be removed from the register of medical practitioners for a minimum period of two years. 21 The dispute between the plaintiff and the defendant, chiefly relates to the following issues. The first of these was whether the defendant had formed an inappropriate relationship with the plaintiff that was in breach of his duty of care towards her, as her attending physician. 22 Another issue was whether the plaintiff psychological condition rendered her incapable of providing the required acquiescence to the sexual relationship to the extent that the defendant’s conduct could be categorised as assault. 23 Finally, if the answer to both these issues was in the affirmative, whether the plaintiff had undergone psychiatric degeneration that could be attributed to the conduct of the defendant; or whether the psychiatric problem was entirely due to the consensual sexual relationship that was independent of the status or conduct of the defendant as a medical practitioner. 24 In our present problem, if we assume that the exclusion in section 3B(1)(a) of the Civil Liability Act, is limited to “civil liability of a person with regard to an intentional act that is done by the person with an intention to cause injury or death” and does not extend to “sexual assault or other sexual misconduct committed by the person”, then the defendant can be rendered liable under the Civil Liability Act, in contrast to the decision in Lee v Fairbrother. This is because, in Lee v Fairbrother, the defendant was accused and finally held liable by the court for the offence of other sexual misconduct, for having caused psychological trauma to the plaintiff. As such, the provisions of section 3B(1)(a) of the Civil Liability Act 2002 will not be applicable to that case. However, if we assume that section 3B(1)(a) exclusion will not be extended to sexual assault or sexual misconduct, then the defendant doctor will be held liable under the provisions of the Civil Liability Act 2002. In the Lee v Fairbrother case, there was no intention on the part of the defendant to cause injury or death to the claimant. Lee’s psychological injury was due to her deteriorated relationship with the defendant. The defendant had not done any act with the intent of causing harm to the plaintiff. Since, exclusion under the provisions of section 3B(1)(a) of the Civil Liability Act is applicable only to intentional acts causing injury or death, the defendant Fairbrother would be liable under the provisions of the Civil Liability Act for his alleged misconduct. IV QUESTION FOUR In one incident, two doctors inseminated a woman with the frozen sperm of her husband. As such, this sperm had to be destroyed and not used for insemination. The husband was on inimical terms with the wife and was contemplating permanent separation from her. Moreover, the sperm was to be destroyed, as the one year term for which it had been donated had expired. The outcome of the insemination was the birth of two twins.25 The court held that the doctors responsible for this faux pas had to bear the financial responsibility ensuing from the birth of the twins. The provisions of the Civil Liability Act are applicable to civil proceedings pertaining to the birth of a child, and it is independent of whether the claim is made in contract, tort, under statute or otherwise.26 However, these provisions do not apply to claim for damages by a child in civil proceedings for personal injury that was sustained by the child during birth or pre – natally. 27 Furthermore, these provisions are inapplicable to civil liability that is excluded by section 3B(1)(a) of this Act. 28 The Civil Liability Act provides certain limitations with respect to the award of damages for the birth of a child. For instance, in a claim for the birth of a child, to which this Part is applicable, the court cannot award damages for economic loss in the following cases. First, for the expenditure incurred by the claimant or which the claimant will incur in the future, with regard to the rearing or maintenance of the child. 29 Second, with regard to the loss of earnings experienced by the claimant, during the time that the claimant maintains or rears the child. 30 There is no preclusion of the recovery of additional expenditure related to rearing or maintaining a disabled child, wherein the additional expenditure ensues from the disability. 31 If the above incident had taken place in New South Wales, the father would have been entitled to make the following claims for award of damages pertaining to the birth of the children. In accordance with section 70(1) of the Civil Liabilities Act, the father of the children can claim damages in civil proceedings for negligence in tort and breach of contract against the concerned doctors, for employing his sperm after the expiry of the contractual period and without his permission, in an IVF procedure that had resulted in the birth of the twins. Section 71 of the Civil Liability Act 2002, limits the awarded damages to circumstances, wherein the children were suffering from a disability and the costs resulting from such disability. As such, under section 71, a father or a claimant can only recover damages arising from rearing and maintaining the child, provided the costs incurred were due to the child’s disability and associated with the rearing and maintenance of the child with the disability. The claimant or father can only claim additional costs under the section15B, if the dependent is under any disability. Therefore, the claimant in our present case can claim damages under Section 15B of the Civil Liability Act 2002. This is because it is assumed that the children born suffered from lack of substantial intelligence. Hence, under these circumstances, the children definitely needed the services of their father. As per section 15B of the Act, disabled children can avail the services of their parents, and such parents can claim the costs for rearing and maintenance. If the father is assumed to have the sole responsibility for childcare, he can claim damages against the doctors for their negligence and the resulting losses, with respect to the maintenance of the children. BIBLIOGRAPHY 1. ARTICLES/BOOKS/REPORTS Gillies, Peter, Business Law (12th ed, 2004) Hugh, Thomas, ‘Surgical Sense and Legal Non-Sense – Chappel v Hart revisited’ (2009) 79(7/8) ANZ Journal of Surgery 554 Scott, Russ, ‘Liability of mental health services for injuries incurred during community treatment’ (2009) 17(2) Australasian Psychiatry 134 2. CASE LAW Bolam v Friern Hospital Management Committee (1957) 1WLR 582 Chappel v Hart (1998) HCA 55 Lee v Fairbrother (2009) NSWDC 1923 Rogers v Whitaker (1992) 175 CLR 479 3. LEGISLATION Civil Liability Act 2002 (NSW) 4. OTHER SOURCES Dinkha, Olivia, Australia: When will the failure to take precautions against a risk of harm amount to breach of duty? (2011) mondaq at 18 November 2012 Doctors must pay for ‘stolen sperm’ babies (2012) The Local at 19 November 2012 Sheehan, Emma, Public and Product Liability (2010) mondaq at 18 November 2012 Read More