The history of medical negligence is not unknown to the public. Some have heard about it, some have seen it, some have dealt with it. A world where doctors and nurses are put at a footing no lesser than Gods, they tend to be some time so reckless at their jobs that they paralyze a person for life. This term ‘negligence’ gained prominence in the 20th century. Before that, English law had no intention of providing compensation for unintended injury (Kiefel, 2015). During the 19th century when the industrial revolution took place, then there was a development in the law of negligence. The courts were tackling the cases of the industrialists to see whether they did any negligence in their process and should be liable for compensation. In the 1930s the modern law of negligence took its place. It was because of a famous case in 1928 that gave it a legal outlook to this.
A Scottish woman became ill after drinking a ginger beer which had a dead snail in it. So until then, the manufacturer was held liable since he owed a duty of care to his customers (Vozikis & Riga, 2016). It was in 1992, when a case Rogers v Whitaker  HCA 58, a legal question stood in front of the jury as to what extent should a patient be allowed to disclose information to his doctors and what duty of care did doctors have for its patients like the telling them about the risks of the treatments, etc. hence, the issue that arises in the given case study is that whether there was medical negligence on part of the hospital in treating Doris, what duty of care did the doctors owed. This essay shall show what duty of care means in respect of the doctors and what legal implications the hospital has to face for their negligence. This shall be discussed through the body of paragraphs in the essay.
Under the Australian Charter of Health Care Rights (Office of health ombudsman, 2015) is an initiative by the Australian Commission on Safety and Quality in Healthcare and supported and promoted in Queensland. It gives a detailed overview of the rights that patients, consumers, families, carers have. The charter gives 7 rights-
It is the fundamental right of the patients to be allowed to have adequate healthcare facilities. It might happen sometimes that one may not get the chance to avail this, so the recourse is to make duly appointments and bringing it to the notice of the service provider.
If a patient does not understands what is happening to him and thinks something is wrong, then he must immediately inform his healthcare provider so that they understand what is there that could harm you.
One is entitled to receive care as per his culture, beliefs and value like the age and gender of the patient. Respect is a vice-versa thing meaning you show to them, they show it to you.
It is the duty of the healthcare providers to inform the patients about the disease. A patient should be as open as he can be to his healthcare providers and ask questions if there is any ambiguity in his mind. It is the responsibility of the healthcare services to provide an interpreter if English is not the first language of the patient.
A patient is entitled to ask as many questions as he wants to from the healthcare providers and they are bound to incorporate it. If being unsure, the patient can involve his family members or carer as per his convenience.
A patient can ask to make any changes in the record if the information is wrong and it the responsibility of the healthcare staff to keep that confidential.
Patients have a say on the kind of services provided to them. It can be verbal or written. For this, the patient can contact the health service provider's patient liaison and tell him the good and bad things he experienced while under them.
The Consent to Medical Treatment and Palliative Care Act, 1995, under Part 2, Division 1, section 6, 'legal consent' means a person who is of or above 16 years of age can make his own decisions as an adult. Under the same part, under division 5, where there is an emergency, then the medical practitioner can do medical treatment of a person if he is not in the position of giving his consent, or when he thinks that it is imperative to treat the patient for the risk to his life or health. Hence, Doris’s x-ray done was an adequate decision on their part. Since she was not in a situation to give her consent, therefore, Peter being her husband and a lawful guardian gave the consent of treating her. Under Part 3, Division 1, section 15, it is the duty of the medical practitioner to mention about the nature, consequences and risks of the treatment, the likely consequences of not taking the treatment and any alternative option that could be feasible. The doctors, in the given problem, did not discuss the procedure with Peter about the operation they have to do and took a blank consent of him, was totally unethical and not as per the act. As per Part 3A, any dispute between the eligible person and the medical staff could be resolved by a public advocate, or guardianship board and by the supreme court.
A medical practitioner owes just as much as a duty a lawyer has towards his clients. A lawyer, if taken a case has to maintain the privilege of it, cannot bail out without any valid justification from his clients. Similarly, a doctor owes a duty of care towards his patients, failing to which shall be medical negligence. The elements that are essential to make act negligence are (Legal services commission of South Australia, 2013)-
These 4 elements constitute negligence and putting them into the given problem clearly shows that there was negligence on part of the hospital. Firstly, they owed a duty of care towards Doris. The orthopaedic surgeon took a leave when he knew that Doris was a senior citizen and her situation was critical. He gave the responsibility to some junior doctor to do the job which was his responsibility, not to mention for playing golf. Secondly, this clearly shows there was a breach of duty on his part. Thirdly, Doris suffered as the operation injured her hip more aggressively and she suffered from continuous pain and decreased mobility, which clearly compliments the fourth point that the damage was caused because of breach of duty.
When a hospital admits a patient in an emergency ward or otherwise, it is regarded as making an undertaking that they shall take due care of the patient’s medical needs. The hospital cannot give away this liability by saying that they handed the patient to someone even more competent (Walker, 2017).
The concept of biomedical ethics came from National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research which was created by an act of Congress in 1974. It was formed to identify basic ethical principles that scrutinize the conduct of biomedical and behavioural research on humans, came to be known as the Belmont Report (Leslie & Bramley et al, 2014). These principles are-
The Beauchamp and Childress textbook, ‘Principles of Biomedical Ethics’(Iserson, 2017) provides the most comprehensive and general norms for the functioning of the medical practitioners and for the patients as well. These are-
In simple words, it means to provide freedom to the persons. This power allows patients to make their choices voluntarily and second it must be informed, third, he should be in a decision-making capacity.
To conclude, it was the responsibility of the hospital staff to give a better treatment to the couple, but due to their sheer lack of judgement Doris got impaired for life. These principles show that Doris, being a patient was competent to take any decision herself and that Peter was himself suffering from temporary memory loss issue, which the nurse staff knew and despite that they didn't do anything. Knowing the conditions of their patients, they carried the surgery and that in front of an inexperienced panel. This was totally and ethical violation of their rights and therefore the couple should be given damages for their loss as per the law.
Kiefel, S. (2015). Developments in the law relating to medical negligence in the last 30 years. Retrieved from https://www.cla.asn.au/News/be-warned-medical-negligence/#gsc.tab=0
Rogers v Whitaker  HCA 58
Office of health ombudsman (2015). Australian charter of healthcare rights. Retrieved from https://www.oho.qld.gov.au/wp-content/uploads/2015/09/Australian-Charter-of-Healthcare-Rights-QLD-OHO.pdf
legal services commission of South Australia, 2013. What is negligence?. Retrieved from https://lawhandbook.sa.gov.au/ch29s05s01.php
Walker, P. (2017). High risks of handover; lessons to be learned. Retrieved from https://www.avant.org.au/news/handover-high-risks/
Iserson, K. V. (2017). Principles of Biomedical Ethics. Retrieved from https://www.researchgate.net/publication/12869379_Principles_of_biomedical_ethics
Skene, L.L.C. (2014). Legal issues when a doctor's relationship with a “difficult” patient breaks down. Retrieved from https://www.mja.com.au/journal/2014/201/6/legal-issues-when-doctors-relationship-difficult-patient-breaks-down
Leslie, K. & Bramley, D. et al (2014). Loss of chance in medical negligence. Anaesth Intensive Care 2014, 42, 298-302.
Cardoso, R. & Zarin, W. et al (2015). Rapid scoping review of medical malpractice policies in obstetrics. Retrieved from https://www.afro.who.int/sites/default/files/2017-05/who-report_malpracticemodels_-12aug2015_final.pdf
Vozikis, A. & Riga, M. et al (2016). Medical malpractice risk factors: An economic perspective of closed claims experience. Journal of Health & Medical Economics, 2, 1-6.
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