5035LAW Lecture Notes - Lecture 4: Diarrhea, Blood Alcohol Content, Damages
MEDICAL NEGLIGENCE
Elements (1) Doctor duty of care of patient
(2) Doctor breached duty through act or omission
(3) Act or omission cause patient physical or mental harm that was reasonably foreseeable
a. Patient = burden of proof
b. Duty, breach, causation, defences, damages
Duty Direct relationship
-Doctor accepts care of
another
-Pre-recognised category
-Albrighton v RPA
oCorrective spinal surgery
oSurgery must be careful
otherwise cause
paraplegia
oNeurosurgeon was told
by doctor to explain the
risks and the give advice
to the patient to which he
said he would but
wouldn’t be able to get to
him til the week after
oBut he never did tell
oNeurosurgeon accepted
duty to the patient
oDuty breached
No direct relationship
-Reasonable person aware of potential harm
-Lindsey County Council v Marshall
oDoctor allowed patient to come in contact with a disease
-Evans v Liverpool Corporation
oReleased patient with disease and third part contracts it = duty
-Exams for third parties
oThomsen v Davison
-Second options
-Pathology
oThomsen v davison
Army medical officer examined
Urine test and other tests and doctor was concerned
Required tests by state dept to be in army
Army medical doctor asked for further tests
Tests not reieved or told to patient
Duty to army, insurance and patient
Needed to obtain and provide info
-Emergencies
oLowns v Woods
No common law duty
Lowns stopped
Held duty of care in emergency
Lived 300m away from child who was having a fit
Resulted in quadriplegia by not being seen by doctor
Influence s 27 NSW Act
Doctor didn’t help
Specialist action
Prolonged fit needed hospital
Doctor failed to tell them (parent) how to administer
medication
Not telling parents was common practice though
-Victims of mentally ill
oMcKenna v Hunter
S Killed by psych patient who was just released
Staying with a friend
Involuntary admitted
Mentally ill
Suggested best for him to go back to Adelaide or Melbourne
Friend took him and got killed
S 20 Mental Health Act
Cant detain if some other form of housing available
Assessment required
Minimum interference with mental ill person
Appropriate care was to go back to VIC for treatment
find more resources at oneclass.com
find more resources at oneclass.com
‘a person must not be admitted to, or detained
in or continue to be detained in, a hospital under
this Part unless the medical superintendent is of
the opinion that no other care of a less restrictive
kind is appropriate and reasonably available to
the person’
-Special categories
oSexual partners
BT v Oei
Doctor owed duty to partner of patient
Tested for hep B but not HIV
He did have HIV and transmitted it to partner
Failure of doctor – exposed partner to risk
Doctor had power to protect and she was vulnerable
Class of people
Harvey v PD
Partners HIV test but not told other partner
Husband deliberately withheld the information
Got married and had a child
Wife would have stopped relationship before hand if
she was told – only toward first child
Second child was voluntary after she knew of HIV
oInconsistent obligations
AAA v BBB
Marriage counselling
But BBB had sexual relationship with the female
Did not breach duty as the duty was to help the
marriage and provide assistance it was the wife’s
decision to break the marriage by cheating
oUnborn child
X and Y v Paul
Sifolis female pregnant
Doctor failed to find
Doctor had duty of care to women and unborn
child
oWrongful birth (sterilise so no birth can occur)
Cattanach v Melchoir
Medical negligence that unwanted child then court
can provide payment for expenses for child – NO
LONGER DAMAGES FOR ECONOMIC DAMAGES
Provided money after sterilisation did not occur
appropriately
oWrongful life (disabled before or after birth)
Harriton v Stevens
Concerned pregnant and might have rubella
Doctor said she did not have rubella
But she did and therefore caused a disability in the
child
Doctor should not have said she did not have the
disease when she did
Misinformation
Did not inform appropriately
‘would not have gone ahead if known’
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Lindsey county council v marshall: doctor allowed patient to come in contact with a disease. Elements (1) doctor duty of care of patient (2) doctor breached duty through act or omission (3) act or omission cause patient physical or mental harm that was reasonably foreseeable. Medical negligence: patient = burden of proof, duty, breach, causation, defences, damages. Evans v liverpool corporation: released patient with disease and third part contracts it = duty. Exams for third parties: thomsen v davison. Urine test and other tests and doctor was concerned. Required tests by state dept to be in army. Army medical doctor asked for further tests. Lived 300m away from child who was having a fit. Resulted in quadriplegia by not being seen by doctor. Doctor failed to tell them (parent) how to administer medication. Not telling parents was common practice though. Victims of mentally ill: mckenna v hunter. S killed by psych patient who was just released.
