A Doctor's Duty of Care - Medical Malpractice Law | AllLaw
The three-part test establishes that the doctor owed a duty of care to the patient, care to avoid forseeable injury to a 'neighbour'.3 In this case, a woman in When a patient is admitted to hospital, a duty of care relationship is. Do doctors owe a duty of care to non-patients for negligence arising from caring for their patients? Duty of care (in negligence) exists. Dr. Eddingfield was not considered obligated to provide care for Ms. Burk In this case, the court decided that a patient-physician relationship had been owed her no duty because a patient-physician relationship had not been established.
The Bolam test is still frequently considered in cases of medical negligence, but it is not definitive, as subsequent cases have called in to doubt the idea that an acceptable standard of care is judged by doctors commenting on practice standards and that it may be part of the role of the court. However, it was argued that even if the registrar had attended, it would not have been appropriate to intubate the child at that point, and that therefore the final subsequent respiratory arrest and hypoxic brain injury sustained by the child could not have been prevented by earlier action.
The judge reasoned that the argument that a failure to attend the child would not have made any difference to the eventual outcome was inconclusive and asserted that on some occasions, differing bodies of medical opinion could be legitimately distinguished by the court.
Bolitho, however, is not universally applied and many judgements of negligence still rely on the principles of peer review outlined in Bolam, although the greater use of evidence-based medicine, and the extensive practice guidelines produced by bodies like NICE, now allows judges to have objective benchmarks of practice for comparison. It is less easy for doctors to rely on providing a supporting body of opinion as a defence for an alleged breach of duty for practice that is contrary to recommendations and guidelines from external agencies.
There is, however, an understanding that progress in medical knowledge takes some time to be disseminated and not every new change can be immediately put in to practice. In Crawford v Board of Governors of Charing Cross Hospital, a patient sustained a brachial plexus injury from being in one position for too long a time period.
However, the anaesthetist had not read this article and was not aware of its implications and so was found not to have breached their duty of care to the patient. Moreover, errors of judgement do not automatically amount to breaches of duty. They only do so in circumstances where the doctor has not acted with a level of care that would be expected from a reasonably competent professional.
For doctors in training, this is of particular relevance, as the standard is that expected of the doctor in the same grade of that specialty or in that unit. There is an assumption, established in Nettleship v Weston where a learner driver lost control of a car, that there should be a public expectation of safety, and that doctors in training should be acting to the standard of the grade they are operating in.
The difference in performance of the two relates to the degree by which the new doctor may be expected to consult and seek assistance to compensate for their relative lack of knowledge or skill and the degree to which they should expect to be supervised.
We would argue that there is an expectation that supervisors allow trainees to do work only that they believe them to be capable of doing. Anaesthetists rarely work alone and it can sometimes be difficult to establish where the harm occurred in relation to an episode of medical care e. Unsurprisingly, claims for medical negligence most frequently fail due to an inability to establish causation as there are often a variety of possible explanations for the outcome.
However, if it can be shown that the breach materially contributed to the damage or it is more likely that the damage was due to negligence than another cause that is usually sufficient. Although the requirement to prove criminal negligence is a much higher one i. A doctor found guilty of criminal negligence is also likely to be subject to fitness to practice procedures by the General Medical Council. Prosecutions for criminal negligence are rare, but the number of occasions when doctors are investigated by the police for a potential linkage to a charge of manslaughter after a serious untoward event are increasing.
Conduct which goes beyond the level of civil negligence almost invariably involves the death of the patient but there are difficulties in establishing what actions constitute this. Extreme subjective recklessness such as indifference to an obvious risk to the patient or objective evidence of incompetence or ignorance may all satisfy the requirement.
It is also of concern that recent prosecutions have generally been of doctors in training, where it is perhaps easier to establish a sufficient degree of incompetence. R v Adomako concerned an anaesthetist who had failed to notice his patient was disconnected from the ventilator whilst the patient was undergoing an eye operation.
Physicians’ legal duty of care and legal right to refuse to work during a pandemic
The patient suffered a fatal cardiac arrest and the anaesthetist was convicted of manslaughter. It is not clear whether Dr Adomako was not in the theatre and had failed to make adequate arrangements to monitor the patient in his absence or had been present and grossly incompetent in delivering the anaesthetic and failing to notice the disconnection as the cause of the patient's deterioration. Liability for negligence The civil procedure rules in England and Wales allow for claims for medical negligence to be started within 3 years of the alleged negligence occurring or within 3 years of the victim becoming aware of possible negligence.
This is of relevance to minors where the 3 years starts when the minor reaches the age of maturity i. Medical defence organizations will provide cover for these activities and also where appropriate for other independent practice activties e. It is recognized that the deterrent effect on individual doctors of civil negligence claims is weak, although the process is stressful for the individuals involved and time consuming.
Duty of care and medical negligence | BJA Education | Oxford Academic
Conclusions Medical negligence is a three-part test whereby a duty of professional care is owed to a patient and as a consequence of a breach of that duty, the patient suffers harm. All parts of the test must be satisfied.
Civil considerations of negligence require doctors to act to an appropriate standard usually but not exclusively judged by the standard of their peers, whereas for criminal negligence the standard of practice has to result in serious harm from actions that could be considered to be incompetent or grossly negligent.
A physician serving a rural or isolated community might also legally be precluded from turning away a person who is not his or her patient, at least while the condition of the individual is serious and travel to an alternative medical facility is unrealistic.
This legislation states that physicians who provide aid at the scene of an emergency and without expectation of compensation will be found liable only if they commit gross negligence. Legal right to refuse to work Hospitals and health care facilities in Canada are governed by the occupational health and safety statutes of each province.
The provisions for the right to refuse to work because of unsafe conditions are slightly different in each province. For example, in Manitoba, a worker may refuse to work or do particular work if he or she believes on reasonable grounds that it constitutes a danger to his or her safety or health or to the safety or health of another worker or person. The right to refuse to work while unsafe conditions exist depends on the circumstances and the province in which physicians practise.
If physicians have a legal right, they may stop working until the unsafe situation has been addressed without facing discipline from their superiors. Because this right exists to protect workers from discipline, physicians who are self-employed and practise from their office do not have a right to refuse to work. Pandemic as a workplace hazard A preliminary issue is whether a pandemic virus constitutes a workplace hazard; much depends on the nature of the virus.
One labour board has stated that an infectious disease might be considered a workplace hazard if the risk of contracting the virus is substantially higher in the workplace than in the community. They cannot refuse to work for a reason unrelated to safety. That is, another worker with the same training and experience would also believe that the circumstances represent an unacceptable hazard.
This usually requires workers to notify their supervisor of their refusal to work, and the reasons for their refusal, as soon as possible. The danger must be sufficiently serious to justify the action; it must be immediate 13 and more than a matter of repugnancy, unpleasantness or fear of minor injury. When a physician with a susceptibility to infection is justifying a refusal to work, he or she should consider the four criteria outlined earlier.
Employers have a duty under human rights law to try to accommodate workers with particular susceptibilities.
What is considered sufficient accommodation depends on each case. Human rights law requires accommodation to the point of undue hardship — that is, employers must be willing to endure some degree of hardship, 16 such as creating a new position or displacing another worker. Policy-makers and labour boards suggest two types of acceptable hazard: In provinces where the legislation is not explicit, labour boards have sometimes interpreted the legislation as if it contained these limits.
Physicians’ legal duty of care and legal right to refuse to work during a pandemic
Entering a burning building is dangerous, but it is inherent to the work. It is also likely that the firefighter would be unable to refuse to enter a burning building with safety equipment that is used by all firefighters. The use of such equipment is a normal working condition that has been established as sufficiently safe.
Similarly, it is unlikely that physicians will be able to refuse to work because of dangers inherent to their job. It is equally unlikely that physicians will be able to refuse work that is part of their normal working conditions.
Physicians would probably have to show a substantial change in circumstances to illustrate that the once acceptable safety standards now create a danger. There is no evidence that this limit will be applied in the provinces whose occupational health and safety statutes do not contain this limit. For example, physicians who work in large health care facilities where someone else can easily assume their responsibilities might not be viewed as endangering a patient or another physician in the event of a refusal to work.
Ethical duty of care and legal implications As members of a self-regulated profession, physicians have ethical responsibilities to their patients, to society, to the profession and to themselves. Physicians need to know that the existence of this separate regulatory regime does not negate their right to refuse to work in unsafe conditions, nor does it shield them from negligence liability for a breach of their legal duty of care. We cannot deceive ourselves into thinking that physicians have absolute autonomy with respect to the work they choose to do or that they can be forced to work under any circumstances.
Physicians need to remain aware of evolving legal developments and ethical discourse. The nature of rights and obligations in various contexts will be informed by ethical, professional and legal collaboration. Physicians need to work with health care institutions, regulatory bodies and the public to ensure that those working during a pandemic feel safe and willing to work.
Key points Physicians in Canada owe a legal duty of care to their existing patients and, in certain circumstances, to those who are not their patients. Some physicians have a legal right to refuse to work if they can satisfy the four criteria defined by labour boards in Canada. Cara Davies was responsible for most of the research and drafting, and Randi Zlotnik Shaul provided substantial revisions on the intellectual content.