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Medical Negligence and Professional Indemnity

Introduction

He was just 8 years old, and according to New South Wales Deputy State Coroner Scott Mitchell, his death could have been prevented. In a story published in The Daily Telegraph on August 16, 2011, Jacob Belim’s death was as a result of septic shock arising from a ruptured appendix. According to the story, the doctor who treated Jacob had found that he was suffering from appendicitis. The diagnosis was made by Dr Chandra Gounder of Liverpool Hospital three days before the boy died (The Daily Telegraph 9). The doctor referred the boy to Westmead Children’s Hospital later on. In the referral letter, it was indicated that the boy’s abdomen was distended, tender and rigid (signs pointing to appendicitis). Dr. Chandra went a step further and contacted the hospital explaining the boy’s condition. But according to the coroner, the doctor’s message “did not draw anybody’s attention to (Jacob’s) diagnosis” (The Daily Telegraph 9).

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According to the coroner, the boy was misdiagnosed and had his medication delayed. His transfer to the referral hospital was also delayed and a combination of these factors led to his death.

The above scenario points out to a likely case of medical negligence. It is likely that the boy’s family will press charges against the medical professionals who handled the boy’s case in a “not-so-professional” manner.

Insurers providing professional indemnity cover are getting concerned with the increased cases of medical negligence in Australia. Jacob’s case and others out there is a clear indication of this situation. It is likely that the two hospitals in Jacob’s case (Westmead Children’s Hospital and Liverpool Hospital) had taken a professional indemnity cover for the hospital and its medical staff. If Jacob’s family decides to pursue this matter in a court of law (which is very likely given the confidence with which the coroner termed the boy’s death as a case of medical negligence), it is the provider of professional indemnity cover who will take up the case. This is so considering that according to professional indemnity cover, the practitioner is indemnified of all liabilities. If the court happens to rule that the boy’s family should be paid for his preventable death, again it is the insurance company which will pay for such legal penalties. It is medical negligence cases like these ones that are raising concerns within the professional indemnity cover providers’ circles.

According to McMahon & Binchy (72), Australia has the highest number of medical error and medical negligence cases as compared to other countries in the world. This is according to a report by World Health Organisation cited in McMahon & Binchy (72). According to this report, more than 18000 people face the risk of dying in hospitals as a result of medical errors that could have been prevented each year in Australia. An additional 50000 Australians suffer from permanent injuries arising from medical negligence each year. The report continues to paint a grim picture of Australian health sector by asserting that about 80000 people are hospitalised every year as a result of complications arising from medical negligence.

With statistics such as the ones provided above, it is not surprising that the insurance industry is raising the red flag regarding the increased cases of medical negligence in Australia. This is given the fact that almost all the cases highlighted in the World Health Organisation report cited above were settled in one way or the other through the professional indemnity covers.

However, it is important to note from the outset that not all medical errors reported in this country and elsewhere are as a result of deliberate negligence on the part of the medical professional. The fact that a patient suffers from a bad outcome as a result of a medical procedure does not mean that they automatically have the right to sue the health care provider for compensation (Hoffman, Brooks, Conroy et al 156). Such a bad outcome can only be regarded as a case of medical negligent if it is proved beyond doubt that the medical professional failed to take reasonable care (Hoffman et al 156). The law acknowledges that just like any other normal human being, the doctor is far from being perfect. However, the law requires that the doctor should take reasonable care in handling the patient.

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This position is further supported by the ruling made in Bolam v Friern Hospital Management Committee [1957]. According to the ruling, the law expects that “a professional person should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill…….” (Mello 11).

Elements of a Medical Negligence Case

The claimant (for example the patient or a family member) is required to prove the existence of four aspects of the tort of negligence when suing for damages. These are as indicated below (according to Healy 278):

A Duty was Owed

The law requires the plaintiff to establish that a legal duty does in fact exist every time the professional cares for or treats a patient. In other words, it should be established beyond reasonable doubt that the medical professional had the duty to provide treatment or care to the patient.

A Duty was Breached

It is not enough to just prove that a legal duty was owed to the patient. The law requires the plaintiff to establish that the duty was breached by the medical professional as a result of the latter’s failure to adhere to the required standards of care (Bryne & Binchy 184).

The Breach of Duty Resulted to an Injury

If the breach of legal duty is not the proximate cause of injury or death, then the law provides that the plaintiff has no basis to sue for damages (Bryne & Binchy 183). This is despite the fact that the plaintiff may have established the breach of duty beyond reasonable doubt.

Damages

Within this context, damages are regarded as pecuniary or emotional losses accrued to the plaintiff. If there are no damages, then the patient cannot sue the professional for negligence. This is despite the fact that the medical professional may have been proved to have committed a medical error. The law recognises that it is possible for damages such as death or disability to occur in the absence of medical negligence (Hoffman et al 123). This is for example when a patient’s death is as a result of natural causes.

It is against this backdrop that the current paper is written. This author will address the issue of how insurers providing professional indemnity cover are getting concerned over rising cases of medical negligence in Australia. To address this issue, the author will refer to relevant Australian statutes and common law revolving around medical negligence and compensation.

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The author will also refer to cases that have been settled in this country concerning medical negligence. The whole discussion will be tied to how medical negligence affects insurance companies offering professional indemnity cover in Australia.

The General Principles of Negligence

Negligence in General

The English law of tort is one of the most cited references when defining negligence in professional circles. It is noted that individuals engaged in the provision of professional services and products are at risk of being sued for professional negligence by their clients. This is for example professionals such as doctors, lawyers, accountants and other consultants.

Professional negligence is regarded as part of the general guidelines on negligence addressing situations where the accused is regarded as “……a person with more than average skills (and) abilities” (Linden 414). As earlier explained in this paper, for a negligence case to be confirmed, it should be established that the professional owed the plaintiff a duty of care and that the professional breached this duty. For a breach of legal duty to be established, it is noted that it is important to prove the defendant does possess the abilities of a reasonable person (Linden 414).

It is however not difficult to prove that the professional involved here possesses the skills of an individual who can be regarded as being reasonable. This is given the fact that by virtue of the services and products that they produce, professionals regard themselves as individuals with more than average skills and abilities (Callinan 44).

Donoghue v Stevenson [1932] UKHL 100 is usually cited when defining general principles of negligence in many jurisdictions around the world. In fact, this case is regarded as the one which established contemporary concept of negligence in many countries around the world. In a ruling read by Lord Atkin on May 26 1932, the plaintiff was awarded damages after all the four principle elements of tort of negligence were established. Despite the fact that the final settlement made out of court was less than the original claim of £500 filed by Donoghue, the case remains significant in today’s professional negligence rulings.

In writing the ruling for this case, the bench did refer to precedents given that the aspect of professional negligence was in existence before Donoghue. For example, to conceptualise negligence within a professional context, the bench made reference to Blyth v Birmingham Waterworks Co [1865] 781. According to this ruling, negligence can be taken as

“…..the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do” (Linden 414).

The concept of professional negligence is closely related to that of having love for one’s neighbour, comparable to the parable of the Good Samaritan in James 2:8. The parallel between the two concepts was drawn by Lord Atkin as he read out the ruling. He was of the view that “….the rule that you are to love your neighbour becomes in law you must not injure your neighbour…..you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…” (Linden 414).

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According to Mello (10), parallels can be drawn between a tort liability and that of a contract. The parallels are to be found in the rules of privity of contract which establishes that a party to the contract can sue on the same. In a contract between two parties where one is a professional, it is implied that the professional will conduct themselves with reasonable care and skill. Mello (10) notes that the standard of care thus implied is not unlike that in negligence. However, the circumstances in which the liabilities of a contract may arise are different from those of negligence. This is given the fact that contracts are created on a voluntary basis between the two parties (Kelleher 4). On the other hand, the duty of care found in a negligence case is imposed by operation of law.

Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 is a clear indication of this aspect. This case involved a formalised structure of agent and sub-agent (Linden 414). Another reference is the Thake v Maurice [1984] 2 All ER 513 case, pitting a railway guard against his surgeon. According to the facts in this case, Thake was living in a three-bed roomed council house together with his wife and five children (Bryne & Binchy 180). The couple were of the view that they could not support another child. They consulted a surgeon who advised the husband to undergo a vasectomy. According to the consent forms that the plaintiff signed, the doctor indicated that the procedure was irreversible and final; Thake will be sterile for life.

However, the effects of the vasectomy were naturally reversed. Thake’s wife conceived and gave birth to a baby girl. The bench in this case found that Maurice (the surgeon) had not just contracted to carry out a vasectomy on Thake, but had also contracted to sterilise the plaintiff for life. The plaintiff filed the claim both in contract and in tort, but the court ruled in favour of tort (Bryne & Binchy 127).

What about Legal Negligence?

Legal negligence can be divided into three categories. These are legal negligence on the part of solicitors, legal negligence concerning barristers and legal negligence concerning witnesses. It is important to look at legal negligence since it is a form of professional negligence that shares some remarkable similarities to medical negligence.

Solicitors and Legal Negligence

This is another form of professional negligence. It can be conceptualised by referring to Ross v Caunters [1970] 3 AER 580 ruling. According to this ruling, lawyers (like doctors) owe a duty of care to their clients and to third parties who may incur losses or damages from omissions or commissions by the lawyer (Healy 300).

This case applied the principles in Donoghue v Stevenson (refer to an earlier section in this paper) and Hedley Byme & Co Ltd v Heller & Partners Ltd (Healy 301). According to the two cases, a solicitor instructed by a client to perform a transaction that is beneficial to an unidentified third party owes a duty of care towards that third party. This is as far as the execution of that transaction is concerned. This is given the fact that the solicitor is aware of the fact that the third party can also incur losses or damages from the solicitor’s commissions or omissions.

Barristers and Legal Negligence

In defining legal negligence within the context of barristers, reference can be made to Hedley Byrne & Co Ltd v Heller & Partners Ltd (Byrne & Binchy 180). According to the principles in this case, if an individual who possesses special abilities applies the same to assist another individual who relies on those abilities, a duty of care will automatically arise. This is irrespective of a contract between the two parties. A barrister is not immune from this duty of care just because there was no contract between the barrister and a solicitor or a client.

Witnesses and Legal Negligence

For the longest time, the laws of many jurisdictions provided for public policy immunity to any witness who takes the stand. This is especially so with the ruling made in Watson v M’Ewan [1905] AC 480 (Callinan 49). The immunity is available despite the fact that the witness may be giving false and injurious evidence, and in some cases, even evidence that is negligent. The immunity policy has been justified by other rulings made after these ones. For example, Arthur JS Hall v Simons found that if the immunity was withdrawn, witnesses will not be willing to assist the courts in their proceedings (Callinan 49).

The Position of Medical Negligence

Preamble

Cases of medical negligence are significantly different from those of other professional negligence such as legal negligence highlighted above. This is given the fact that a plaintiff has to depend on expert medical evidence to prove all the four elements of tort of negligence (Shanmugam 7).

It is noted that the cause of damage is especially difficult to prove in a medical negligence claim. This means that the most difficult part in medical negligence litigation is to prove that the damages were directly caused by the medical professional’s breach of duty of care. The plaintiff has to establish that the damages are a direct result of breach of duty (read medical negligence) and not the effects of their underlying medical condition that had made them seek treatment (Powell, Stewart & Rupert 112).

Even if the claimant successfully establishes the four elements of tort of negligence beyond doubt, it is noted that the court is faced with difficulties in assessing the damages to be paid out. This is given that a comparison has to be made between the plaintiff’s actual condition and prognosis “with the hypothetical condition (and prognosis)….if the plaintiff had received competent medical care” (Powell et al 122).

The Bolam Test

The “Bolam Test” is a phrase that is usually used in connection with professional negligence (especially medical negligence). It is derived from the Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 case. It is an English tort case that has been hailed as a significant precedent in medical negligence cases. This case more than defines the yardstick for identifying the desirable standard of reasonable care (Linden 414). This is especially so in negligence cases where the defendant is a professional such as a doctor, a lawyer, an accountant among others. The yardstick set out by this case is what is referred to as the “Bolam test”.

The Bolam test especially applies in cases where the accused has represented him or herself as possessing more than average skills and abilities. In such a case, it is expected that the professional will conduct themselves within standards that are in line with a responsible body of opinion (Tettenborn, Asif, Plunkett, Goodman & Wilby 219). This is regardless of whether others differ in opinion. Verbatim, the Bolam test states that “if a doctor reaches the standard of a responsible body of opinion, (then) he (or she) is not negligent” (Tettenborn et al 219).

So what is Bolam Test all about? The Facts of Bolam v F

So how did the Bolam test come about? To answer this question, it is important to take a look at the facts of this case.

It is noted that the plaintiff in this case was a voluntary patient at a mental health facility that was operated by the defendant (Friern Hospital Management Committee). Bolam volunteered to be put under electro- convulsive therapy. Before the procedure was terminated, the plaintiff flailed about violently. When the procedure was finally stopped, it was noted that the plaintiff had incurred serious injuries including fractures to the acebatula (Powell et al 122). Ultimately, he pressed charges against the hospital management committee claiming that they were negligent.

The defendant was accused of being negligent on three bases. The first one was the failure to give the plaintiff relaxants even with the knowledge that the procedure may be risky. Secondly, the defendant was accused of being negligent for failing to restrain the plaintiff. Finally, it was claimed that the defendant failed to inform the plaintiff of the risks that were involved in the process.

It was established that it was common practice in experimental procedures in medical field to not warn patients and volunteers like Bolam of the risks associated with the procedure. This is especially so if the risk is small. In such a case, the risk could only be revealed to the patient if they ask about it.

This case established that it is important to take into consideration what is common practice in a given field when determining the standard of care that is called for (McMahon & Binchy 90). A professional is found to be negligent if he conducts himself below the appropriate standard. However, the standards are much higher for those individuals who profess to possess professional skills and abilities such as doctors. Such individuals are expected to provide care of high standard.

Within the context of professional persons, the Bolam test provides that:

“….it is expected of a professional person that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill…..ordinary skilled person exercising and professing to have that special skill, and a doctor or a surgeon (is not to be) held to be negligent if he acted in accordance with the practice accepted at the time as notwithstanding that other doctors opted different practices” (Shanmugam 10).

To conclude on Bolam test and its applications in medical negligence, it is important to note some of its few unique aspects. The most significant is the fact that it is just a single step in establishing the four elements of torts of negligence. First, the plaintiff must establish that a duty of care does exist.

After establishing duty of care, the plaintiff must then prove that the duty of care was breached. According to Shanmugam (9), this is where the Bolam test comes in. This is given the fact that according to this test, acting below the standard of “responsible body of medical men” (Tettenborn et al 220) will be regarded as negligence on the part of the doctor.

The Australian Position on Medical Negligence

Professional Indemnity Insurance

Before discussing the Australian position on medical negligence, it is important to first provide a brief background on professional indemnity insurance (or what is also referred to as professional liability insurance). This is given that subsequent discourse will regularly make reference to this aspect, and as such, it is important for the reader to have an idea on what it is all about.

Professional indemnity insurance cover shelters professional advice and service providers from bearing the full cost of a litigation involving professional negligence. It covers against cost of cases that are filed by clients as well as damages that may be awarded by a court of law in such civil suits (Powell et al 111).

A professional service or product can lead to legal claims despite the fact that the damages covered for in a common liability has not resulted. Professional liability has been tailored specifically to cover against claims such as negligence, misrepresentation and inaccurate advice among others (Tettenborn et al 223).

To analyse the Australian position on medical negligence, reference will be made to various cases that have been determined within the country.

Rulings in Medical Negligence Cases

F v R

F v R [1985] 33 SASR 189 is another tort law case that is frequently referred to when making medical negligence rulings, making it a significant precedent in this field. It is especially significant when determining what information medical professionals have a duty to disclose to their patients (Powell et al 111). F v R is closely related to the decision that was made in Rogers v Whitaker after it considering that both of them significantly departed from the Bolam test regarding the duty of medical professionals to inform patients about the risks they face during medical procedures.

Rogers v Whitaker

According to Macdonald (1-3), Rogers v Whitaker [1992] 175 CLR 479 is another important precedent in medical negligence claims. It was an Australian High Court’s decision that is especially remembered for its opinion that a doctor has a duty to warn his patient of any material risk that is associated with any form of treatment that they are proposing for the patient.

This case is a significant pointer to the Australian authority’s position on medical negligence. Alternatively, the risk is material if the doctor is (or should be) aware of the fact that the patient will be concerned about the risk. The High Court found that a doctor could not be regarded as being negligent in warning the patient if the doctor operated in accordance with common practice in the medical field. This is regardless of whether other doctors in similar situations may adopt different procedures when faced with such concerns from the patient.

Naxakis v Western General Hospital and Another

Like Rogers v Whitaker analysed above, Naxakis v Western General Hospital and Another [1999] 162 ALR 540 is another Australian High Court’s decision in a medical negligence case. A burst of aneurysm was the cause of the plaintiff’s impairments. He sued Western General Hospital, his doctor Mr. Jensen and others in the Supreme Court of Victoria.

The doctor in this case was regarded as having been negligent given the fact that he failed to analyse the condition of his patient correctly. He failed to consider the possibility of a burst aneurysm and carry out the appropriate procedures on the appellant, leading to his impairment. This case applied the principles of Rogers v Whitaker, and the bench concluded that “….the test for medical negligence is not what other doctors say they would or would not have done in the same similar circumstances……” (Cusack 8).

The three cases above are an indication of the fact that medical negligence is taken seriously by Australian’s judicial system. As a result, medical negligence has continued to pose a challenge to the country’s insurance companies as far as professional indemnity is concerned. This is considering the fact that the settlements in the above cases (and many other cases not mentioned here) are more likely made through professional indemnity covers taken by the hospitals and the medical doctors.

The Duty to Warn: Use of Available “Prevailing Medical Opinion”

From most of the cases analysed in this paper, it is obvious that failure to warn the patients about the risks involved in a particular treatment is a major cause of medical negligence. Regardless of what other doctors do when faced with similar situations, it is the opinion of the courts that the doctor has a duty to warn his patient regarding the risks of the treatment. As such, prevailing medical opinion cannot be used by a doctor to argue that he was not negligent.

Of What Do You Warn?

The question of what a medical professional should warn his patient about can be answered by making reference to Rogers v Whitaker. According to the facts set forth during the proceedings, the claimant had been partially blind in one of her eyes since childhood (Macdonald 1). Despite her condition, she had led a substantially normal life. When she consulted the doctor in the case, she was informed that the condition could be corrected by a surgical procedure.

However, Whitaker developed sympathetic ophthalmia in her left eye following the procedure. The procedure and complications that resulted from it made her almost completely blind.

Whitaker argued that the doctor was negligent as he failed to warn her of the risk of developing sympathetic ophthalmia. In his defence, the doctor argued that the risk of developing this condition was 1 in 14,000, and as such, many doctors did not find it necessary to inform the patients of the risk. However, the court ruled that regardless of the practice by other doctors in the field, it was the duty of the doctor in this case to warn the patient of the risks involved in such a medical procedure. According to the ruling, “…..the standard (of care) is not solely determined by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade…” (Macdonald 2).

From this ruling, it can be argued that the doctor has the duty to warn the patient of the risks associated with a given medical procedure regardless of the prevailing medical opinion.

How Do You Warn?

Many doctors ask themselves how to warn the patient of risks that are involved in a given medical procedure. According to Tettenborn et al (222), the doctor can warn the patient by disclosing not only the risks involved but also previously unreported complications of a given mode of treatment. This is given that if a patient is properly warned of such a complication, they can decide whether to undergo the operation now or at a later date at the hands of a more experienced practitioner (Scott 134).

In Chappel v Hart [1998] HCA 55, it was established that Dr. Chappel had recommended the respondent to undergo a surgical procedure on her oesophagus. The patient inquired about the risks involved in the procedure and the doctor informed her that there was a risk of perforating the oesophagus. However, the doctor did not inform the patient that there was also a likelihood of the perforation damaging the patient’s vocal cords. The High Court found that if the doctor had fully informed the patient about these risks, she could have decided whether to postpone the operation or to undergo it with the help of a more experienced surgeon (Scott 135).

This case has significant implications on medical practitioners when informing their patients about the risks of a proposed surgical procedure. The doctor should go about it by disclosing all information regarding the risks involved. The doctor should also inform the patient of their limited experience in the given medical procedure.

What Statistics Matter?

As far as the duty to warn is concerned, it is important for the doctor to realise that they should inform the patient of the chances of failure in a medical procedure according to medical statistics available. Giving the patient the doctor’s track record as far as medical risks are concerned is not enough. To complete the picture and provide the patient with full information, the doctor should let the patient know that they are referring to the doctor’s track record and not to the documented statistics in the field.

This point is vividly illustrated in G & C v Down [2008] SADC 135 where the respondent informed the appellant of his personal failure rate regarding tubal ligation. He informed the plaintiff that the chances of failure were 1 in 2000, but he forgot to inform her that this was his own failure record. Documented failure rate in the field was much higher (1/500), but the doctor did not inform the patient of this. The District Court ruled that the doctor was negligent as he failed to provide the patient with this vital information (Scott 136).

Does ‘Acceptable Medical Opinion’ Carry Any Weight?

According to the ruling made in Rogers v Whitaker, prevailing medical opinion should not be used as an excuse if the doctor failed to inform the patient of the risks that are involved in a medical procedure. The doctor in this case argued that failing to inform the patient of risks involved in the operation was an acceptable medical procedure given that the likelihood of the risks occurring was slim. Other doctors did not inform of their patients of this risk. However, the court ruled that this should not be used as an excuse to argue that the doctor was not negligent (Macdonald 2). In other words, acceptable medical opinion does not carry much weight when it comes to the duty to warn.

The Judicial Basis for Legal Approach

This paper has established that many cases of medical negligence in Australia are referred to and arbitrated by the country’s judicial arm. This being the case, it is important to analyse how the courts go about this arbitration and the legal basis from which they operate.

The Law Requires a ‘Fully Informed’ Consent

Medical practitioners are usually in a dilemma when it comes to dealing with incompetent patients who have prepared advance care directives before falling sick. Given that the current condition of a patient may not allow them to make a competent decision, the care provider is faced with the dilemma of whether to respect the wishes of the patient as expressed in the advance care directive or to go ahead and provide the care needed. This is especially so if the doctor feels that following the directive may lead to death of the patient (Hoffman et al 143).

In such a situation many doctors seek the court’s interpretation of the advance care directive. This is in an effort to avoid been accused of medical negligence should anything happen to the patient. In Hunter New England Area Health Service v A [2009] NSWSC 761, the appellant was of the view that if the defendant was not put on dialysis, he might die. This is given that he had indicated in his advance care directive that he should not be put under any life sustaining medication should the need arise. The hospital was concerned that the patient might not have been fully informed when writing this directive. According to Justice McDougall, a refusal of treatment did not need to be an informed one and it should be respected under all circumstances (Tettenborn et al 219).

In the case of Brightwater Care Group (Inc) v Rossiter [uncited], the court found that the situation is a bit different for a patient who is competent. According to the court, if the patient is competent enough to make decisions regarding his treatment, the decisions should be respected despite the fact that they might lead to his death. However, the court warns that the patient should be fully informed of the consequences of his decision. The medical practitioner will not be held criminally responsible in such a case.

Medical Negligence and Insurance Claims: What Does the Courts Have to Say?

In making the various decisions touching on medical negligence cases, the courts are well aware of the fact that the parties involved in such cases view the whole process from different perspectives. According to Justice Michael Kirby (cited in Cusack 10), the concerns of the medical doctor are different from those of the lawyer, the patient and the insurance company. The doctor views the whole process as a threat to his practice, viewing it as a “moral blight or stigma” (Cusack 10) on his career.

On the other hand, the patient (and to some extent their legal teams) assume a more basic perspective towards the whole process. The major concern of the patient is whether the effects of the malpractice will relegate them to poverty or whether they will entitle them to compensation from the doctor’s insurance company.

This is where practitioner indemnity insurers come in. According to the Justice, the practitioner must pay premiums for them to be insured. These premiums are in some way passed on to the patient in form of medical costs. This being the case, it can then be argued that at the end of the day it is the patient who contributes to the professional indemnity’s cover. It is from these contributions that patients get compensated should anything go wrong during a medical procedure (Cusack 11).

The Limits of Scope of Duty

Limits of Breach of Duty

There are some legal limits as far as the duty to warn on the part of the doctor is concerned. According to legal opinion in this field, the causal connection between the breach of duty of care and the resulting damage may be displaced when three conditions are met (McMahon & Binchy 97). The first condition is met when the occurrence of the damage was coincidental, and according to McMahon & Binchy (97), the connection between the damage and breach of duty was more or less temporal. The second condition is met when the court establishes that the damage could not have been avoided and it could probably have occurred regardless of whether the duty of care was breached or not. This is for example when the patient’s condition would have led to death whether they underwent the treatment or not. The third condition is met when it is established that the event lacked a logical relevance to the actual damage that is reported (Tettenborn et al 220). In other words, this condition is met when there is no logical connection between breach of duty of care and the damage that has occurred.

All the three conditions above tie with the argument provided earlier in this paper to the effect that a medical negligence claim must fulfil all the four elements of torts of negligence. If any of the above conditions are established by the doctor, the court is likely to rule against the claimant in such a case.

The Relevance of Personal Circumstances Impacting on the Contours of Medical Duty

The Australian judicial system is of the opinion that a medical doctor has the duty to recommend a form of treatment that they consider as most appropriate to the patient’s condition. However, the law does not oblige the doctor to offer the patient each and every legitimate treatment that is available or which they are aware of (Healy 278).

This position is vividly illustrated in Richards & Ors v Rahilly & Anor [2005] NSWSC 352. In this case, the parents of a young child were alleging that the defendant failed to inform them of the availability of a drug that would have managed the condition of their epileptic daughter (Healy 278). This is despite the fact that the doctor had given the patient the treatment that in their opinion was best suited to her condition. In making the ruling, Justice Hoeben opined that it is one thing to warn the patient of risks that are involved in a given medical treatment and quite another to provide them with full information regarding the availability of other treatment options out there (Healy 278).

The duty to warn is limited given the fact that the doctor is not obligated to provide the patient with information regarding all other legitimate treatment options out there. This limit has to be acknowledged, otherwise an impossible burden will be imposed on the medical fraternity while at the same time imposing on the patient a decision that they are not competent enough to make (Cusack 10).

The Position of an “It Would Have Happened Anyway” Finding

There are situations in which the courts in Australia seem to disregard the Bolam test and other significant precedents in determining medical negligence cases. A case in point is Ainsworth v Levi [1995] where a singer was suing for damages alleging negligence on the part of the doctor. In this case, the appellant (a singer by profession) underwent a surgical procedure to eliminate “singer’s nodes” from her vocal codes (Powell et al 111). Despite the fact that the operation was a success, the appellant was unable to regain her singing voice prompting her to sue for damages.

While acknowledging the law as set by Rogers v Whitaker, the court ruled that a doctor could not be held negligent simply because they chose a particular medical procedure from many alternatives. The fact that the doctor preferred one mode of treatment over another is not enough to make him criminally responsible. According to this ruling, the fact that an alternative mode of treatment existed is not sufficient to prove that a doctor’s choice of one form of treatment over another is negligent (Healy 300).

The decision in this case is comparable to that made in Youkhana v Western Sydney Area Health Service [1995]. In this case, a trainee dentist was alleged to have been negligent for splashing sterilising solution into the eye of the appellant. This case was not about negligence as a result of failure to advice; rather, it revolved around negligence in the performance of treatment (Tettenborn et al 218).

The cases above prove the fact that the doctor’s duty to warn does have its limits. It is up to the courts and the doctor to establish whether the doctor operated within these limits. It is also important for the doctor to be aware of these limits so that they can operate within the boundaries.

Conclusion

This paper has proved beyond doubt that medical negligence remains one of the major concerns of professional indemnity cover providers in Australia. Many cases have been arbitrated by courts in this country regarding this matter. From information provided in this paper, it can be concluded that doctors need to be aware of the importance of informing their patients the risks involved in the proposed treatments. They should also be aware of the limits of duty to inform so that they can operate within these limits.

The paper made reference to cases that have been decided in Australian courts regarding medical negligence. It was noted that in most of these cases, the negligence of the doctor led to damages on the part of their patients. However, it was also established that proving a medical negligence case is not an easy task. The court expects the plaintiff to establish that the doctor owed them a duty to care, a duty that was breached leading to damages. Cases analysed in this paper showed that failure to establish the occurrence of these conditions leads to an unsuccessful case.

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