In Australian society, duty of care is to take reasonable care to not cause foreseeable harm to other individuals in any work place. Saying this the duty of care of a medical practitioner is superior considering the nature of their profession, where is they provide advice to people on health and medical conditions, but is the extent of their duty of care too expansive? Doctors are being sued way too frequently for negligence of cases that are generally not because the doctor didn’t use the required standard of care but because of an unanticipated outcome where the occurrence was no individuals fault.
The causation of this situation is impacting citizens in our society. Negligence is the predominant theory of liability concerning allegations of medical malpractice, making this type of litigation part of tort law. An individual that takes medical negligence to court must prove the following four elements: a duty of care was owed by the medical practitioner or doctor; the doctor breached the applicable standard of care; the patient suffered an injury or loss; and the injury must have been caused by the actions of the doctor or medical practitioner.
Not all medical errors are considered negligent. If a patient suffers a bad outcome from the medical treatment, they can’t automatically sue for compensation. One can only sue if the medical error was due to the practitioner not taking “reasonable care”. The law does not state that a doctor must perform his or her treatment perfectly, but instead that the doctor must take reasonable care.
“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 highest degree of skill…” (Bolam v Friern Hospital Management Committee ) Stepping outside the hospital, if doctors see people in distress, or even if they see someone in serious need of help on the roadside or on a plane; if the doctor chooses to assist them, the doctor owes the individual a duty of care because they are now their patient.
But should they help in the first place, if the possibilities of them being sued for negligence are very high. “The current civil litigation system is unfair and it does not protect the medical practitioners from malicious and baseless litigation. ” In the case, Rogers v Whitaker, Rogers was sued for breaching his duty of care to the Whitaker, which many would believe was unavoidable and that the appellant did not have the responsibility to know that the condition of sympathetic ophthalmia was a material risk.
Maree Whitaker suffered a severe injury in her eye at the age of nine, and has been nearly totally blind for 40 years in her right eye. Despite the injury she lived a subsequently normal life. She contacted an ophthalmic surgeon, by the name of Christopher Rogers. He advised her that if she were to undergo the surgery then, not only would it improve her eyesight but most probably restore it. After the surgery was conducted with the required skill and care needed, the respondent developed an infection in her left eye called sympathetic ophthalmia.
Her eye sight in her right eye was never restored and she had become totally blind in her left eye. Whitaker sued Rogers for negligence because he failed to inform her about the less than 1 in 14,000 chance of developing this condition. The outcome of this case was decided by the high court. They stated that except in cases of emergency or necessity, the doctor cannot proceed with the treatment unless the patient has made the decision to undergo it; but a choice is not valid if it was not made on the basis of relevant information and or advice.
This was the first time the High Court had to make this decision making the outcome precedent to all the following similar cases. Due to this outcome, medical practitioners would now be sued for making very small mistakes. Many practitioners’ said that it would now be very difficult for them to know whether a risk was material or not. Due to this, they will give out a ridiculous amount of risks to patients to prevent themselves from being sued. Why should Rogers be held responsible for something as small as not informing Whitaker about the less than 1 in 14,000 chance of developing sympathetic ophthalmia?
A practitioner stated “there is no liability for someone to know if a risk is material or not. ” Doctors definitely should be held responsible for negligence and malpractice. However accidental outcomes do occur, even when the required skill and care have taken place and reasonable decision making have occurred. If the medical practitioner use the required high skills and sticks within the standard of care while making smart choices that in the given situation would have been thought to benefit the patient then a doctor should not be sued for negligence.
Recommendations Making it very easy to sue a medical practitioner; the number of medical negligence claims was proven to go up after the outcome of this case. The courts will now be caught up with patients coming in to sue their doctors or medical practitioners over simply mistakes or simply misunderstandings.
Bibliography http://www. kevinmd. com/blog/2012/02/civil-litigation-system-unfair-physicians. html http://www. bmj. com/content/345/bmj. e6804? ijkey=BaelgfZySySGXMb&keytype=ref http://www. legalaid. qld. gov. au/legalinformation/livinginthecommunity/Dutyofcare/Pages/Negligencedutyofcareandloss. aspx.