CL negligence

roe v minister of health

'at the time' of incident - goes hand in hand with bolam pre 1992 standard required · two men underwent surgical procedures with spinal anaesthetics, as a result of which they had become paralysed. The anaesthetic was stored in glass ampules that were in turn stored in containers of carbolic acid. At the trial, evidence given that what probably happened was that glass had developed miniscule cracks, allowing carbolic acid to seep into the anaesthetics, resulting in paralysis. By 1954, it was well known there was a risk of this (permeation of glass ampules), but risk wasn't well known at time of incident (1947). o Denning LJ: 'Physicians have to learn by experience, and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right. That is just what happened here. The physician sought to escape the danger of infection by disinfecting the ampoule. In escaping that known danger, he unfortunately ran into another danger. He did not know that there could be undetectable cracks, but it was not negligent for him not to know at that time. We must not look at the 1947 accident with 1954 spectacles'. · Adopted in QLD in Dwan v Farquhar [1988] 1 Qd R 234: man underwent surgery in 1983, for which he was given a blood transfusion, contracting HIV. He alleged blood should have been screened o Court held that no r/s competent practitioner in 1983 would have known of the dangers of contracting HIV through blood transfusion so wouldn't have screened it

naxarkis v western general hospital

'material risks' standard applies to every interaction - no bolam test applied School aged boys mucking around, and one hit the other boys in the head with his school bag (collapsed and was taken home). Parents of injured child took him to hospital (run by Ds). The doctor at the D hospital examined the boy and decided to send him home but was haemorrhaging and suffered brain damage. If boy had undergone CT/MRI, damage to brain could have been detected and treatment could have been administered. Sued, arguing it was failure to correctly diagnose and treat: · Hospital called evidence from similar doctors who said that faced with patient presenting same symptoms, they wouldn't have administered CT/MRI, thus according to Bolam principle, neither were negligent. · HCA made it clear that 'material risks' was patient centred standard, and while court can take into account what profession thinks is appropriate, they are not bound by it. It is for the Court to decide what is negligent or not. · Is no longer true to say there are multiple standards, profession related Bolam standard doesn't govern any aspect of doctor's duty to a patient (CF CLA)

duty of care - duties outsude dr - patient relo ?

aus law - no 'good Samaritan' duty but physicians may have duties of care to people that have no previous physician - patient relo lowns v woods hoffman decker

examples of breach - where the health care practitioner fall below standard expected of an 'ordinary skilled man exercising or profession to have a specil skill' - established catergories

(i) failure to take medical history (ii) causing an injury to a patient while the patient is undergoing surgery (iii) errors in treatment (iv) removing foreign objects (v) errors in diagnosis (vi) failure to follow up (vii) failure to counsel patient who might be seriously ill from leaving the hospital (viii) failure to properly train reception staff to detect and priorities patietn with urgent need

bt v oei

AT diagnosed with Hepatitis B following tests by Dr O (presenting symptoms over 14 months - first consulted in 1991 with sore throat/fever/cough, provisional diagnosis in Jan 1992 and given information about Hepatitis B in Feb 1992). When AT given information about Hepatitis B and safe sex, said he would have no need for it, and didn't mention he had a sexual partner. AT died of liver failure, and BT (partner) diagnosed with HIV, attributing this to interaction with AT o Held: A r/s doctor at the time would have suspected they were suffering from HIV, and would have arranged a screening for him § There was no conflict between the duty owed by the D (confidentiality) to AT and BT as the two were coincident § It was r/s f/s that AT, if HIV positive, would transmit the virus to a sexual partner § D's knowledge equipped him with skills to identify the risk that AT had contracted HIV, and the failure to diagnose and adequately counsel AT to undertake an HIV test exposed AT's sexual partners to the risk of contracting HIV o Two ways of understanding the decision: § (1) Doctor owes a duty of care directly to third party and has breach it by failing to advise AT to take precautions; or § (2) BT is a third party, and didn't know of her existence so couldn't have owed her a duty. But Dr O owed a duty to AT, and give a r/s doctor would have ordered an HIV screening, negligence has caused damage to both AT and BT (who is not too remote) o Doctor owed duty to both

causation

traditional test : 'but for' in chelsea v Barnett 'common sense' test : march v stramare

2004 onwards

CLA restored Bolam standard in all areas except for duty to advise of risks

other circumstances - calculus of negligence

Calculus of Negligence - weighs up the probability of the harm occurring & the magnitude of that harm against the cost of avoiding the risk or harm & the social utility in carrying out the harmful utility. · If probability & magnitude > costs of avoiding & social utility, is likely the court will find a breach of duty · Example: BCC decided to bring back trams and get proposal to install 'dead mans' hand' on each of the trams, but the cost of purchasing and installing is $1/tram (500 trams). Employ as tram drivers the retired bus drivers (over 80). Is it negligent for BCC to not install the dead mans hand? o Likelihood of harm is high - old drivers; magnitude of harm is high - would injure/kill passengers o Cost of avoiding the harm is low ($500); no social utility in not installing o So would likely be negligent · Example: doctor comes across man who has had a fall and arm looks like it's getting infected. If you don't give them a antiseptic cream o Probability of infected tissue getting worse before it gets better is high; magnitude if infection isn't treated is high o Cost of antiseptic cream is low; no social utility in letting people go around with infected arms o So would likely be negligent · This also applies to the established categories

loss of chance damages

D's breach caused loss of chance of possibility, but not probability of better medical outcome. As P can only prove they have lost possibility, then they are unable to satisfy the 'but for' test of causation (requiring P to prove that D's breach caused harm). · In civil litigation, normal standard is that P required to prove elements of tort on BoP (indicating 'more likely than not' or 'greater than 50% chance' · One of the difficulties in medical situation is it isn't always possible to be sure about what would have happened if different treatment had been administered · Had to decide, if P unable to prove on BoP that they have been deprived of different outcome, whether it is enough if that P can show they have been deprived of loss of chance of getting the better outcome

remoteness

Damage must not be so far removed that a person wouldn't have possibly been able to foresee it Principles: 1. Don't have to f/s the precise sequence of events 2. Damage must be a type/kind that is r/s f/s (The Wagon Mound) Example: woman got injured at work and doctor said the weight of her hair may have contributed to the issue. She got a hair cut on his advice which was against her cultural beliefs, so her husband wouldn't talk to her and their marriage broke down

1992 - 2004 : failure to advise of material risks

The Bolam test (acting in accordance with what is r/s property in the field [profession-facing standard]) is no longer applicable. Assess standard of care on the basis of what a r/s patient would want to know/what doctor ought to have known this patient wanted to know [patient-facing standard]. Negligence will stand where: 1. Duty 2. Breach - The doctor has failed that duty by failing to disclose information (that was material either to a r/s person in the patient's position or to the patient in particular) 3. Causation - Patient can show that had they known of the risk, they wouldn't have consented

tabet v gett - loss of chance damages

Facts: 6 y/o girl admitted to hospital presenting with symptoms including nausea vomiting etc. after she had been suffering chickenpox (11 Jan 1991). Paediatrician thought she was suffering from chickenpox/meningitis. 2 days later, P's father pointed out his daughter's pupils were unequal in dilation, and her right pupil was unresponsive. The respondent ordered a 'lumber puncture', and the next day, the appellant had a seizure, causing a CT scan to be conducted revealing a brain tumour (14th January). The appellant subsequently had medical treatment, including brain surgery, chemotherapy and radiotherapy, but suffered irreversible brain damage from (a) tumour itself, (b) excess of spinal fluid in her brain cavity, (c) the surgery undertaken to remove the tumour, and (d) the chemotherapy. Argued part of the damage was caused by the failure to order a CT scan on the 13th January.

tai v hatzistravrou

Failure to ensure patient entered on surgical list o Facts: gynaecologist practiced in rooms opposite hospital; P saw doctor frequently (had history in family). On one particular visit, notes said he referred her for a D&C but she wasn't given the admission slip as was the usual practice. On another, she took admission form to Hospital which was in the computer records. Usual practice for these forms was that they were filled out by treating surgeon who nominated priority and then booking made. Hospital did not ring the P or write to her to notify her. o Held: in circumstances where doctor knew or suspected she was suffering from serious disease (ended up being cancer) had a duty to follow up with her or the hospital. Was a dangerous delay in diagnosis failed duty to the P

chappel v hart

H was teacher that was referred to see Dr C as she was having troubles with throat. They had a conversation about a procedure and she said that whatever happened she didn't want to end up like 'Neville Rand'. Procedure was competently performed but in course of procedure her oesophagus was perforated, allowing an infection to set in ('random event' not related to lack of care on behalf of operating doctor). As a consequence, H had problems with her voice. She complained she hadn't been advised of this risk and had specifically stated she didn't want her voice to be affected. · CoA: said she would have gone ahead with procedure if she had been warned of the risk, but probably later and by more experienced surgeon. CoA nonetheless awarded her damages. · HCA: took the view that she had in fact proved causation. Court's view appeared to be that although the infection was random event, a more experienced surgeon was less likely to have such side effects occur. Thus by giving up right to be operated on by more experienced surgeon, P had proved causation. o Questions of causation aren't answered in a legal vacuum, but in legal framework of negligence, which assigns a duty to take r/s steps to prevent f/s risk o Civil Liability Act reversed the effect of this decision

(iii) errors in treatment

Health partitioner faced with one illness/injury, exacerbates it by adding another cause of illness/injury - e.g. failure to conduct appropriate sterilisation procedures, choice of wrong drug treatment, early discharge, failure to spot warning signs of infection

(i) failure to take medical history

If doctor does not take a full medical history and injury results, the doctor will be liable for negligence

(vi) failure to follow up:

If you go and see a doctor who does certain tests and asks you to come back and see them to get the results, if you don't come back, is there an obligation to chase the patient? o Medical Journal of Australia: if you go to see your dentist and they tell you to floss, brush teeth etc. and you need to have a check up every 6 months but you don't, should you be able to sue the dentist when your teeth rot? No, you chose to accept that risk. So if a doctor tells you to come back and you don't shouldn't that be your prerogative?

legislative amendments

Law Reform (Miscellaneous Provisions) Act: protection for those who come to aid of another o S 16 - medical persons, nurses, and other prescribed persons have no liability for acts done or purported to be done or omitted in the course of rendering medical care, aid or assistance to an injured person in the circumstances of emergency (if in good faith without negligence) · Civil Liability Act 2003 (Qld) s 26: civil liability will not attach to provision of first aid to person in distress if: o (1) First aid/assistance is given by person while performing duties to enhance public safety for prescribed entity (e.g. paramedic) o (2) First aid/assistance is given in circumstances of emergency o (3) Act is done or omitted in good faith without reckless disregard for safety of the person

causation and ps subjective state of mind - evidence that had they know, they would have undergone surgery anyway

berger v mutton - imputed knowledge of risk despite contrary evidence bustos v hair transplant pty ltd - keen to the point of desparation rosenberg v percival - difficult to prove wouldnt have accepted remote risk

standard of care pre 1992: bolam standard

bolam : act in accordance with standard of r/s care and competence at the time

generla principles

Location & Standard of Care: · Giessman v O'Keefe (1994) NSWSC [unreported]: Simpson J rejected any suggestion that the standard varies to people in rural Australia when compared with City underlying conditions: If person has underlying condition/fault which may be made worse if care not taken, duty of care owed may be higher (Paris v Stepney Borough Council [1951] AC 367: lost eye at war, and going back to work. employer failed to give him safety goggles for work, and piece of metal flew into his eye - held owed him higher standard of care). · Markaboui v The Western Sydney Area Health Services [2005] NSWSC 649: woman admitted to hospital with multiple fractures (arm, back and leg). Woman given inappropriate dosages of opioids and wasn't sufficiently hydrated given her underlying conditions, resulting in her developing pneumonia. o Satisfied on BoP the P suffered pneumonitis arising from combination of treatment, causing respiratory syndrome not properly dealt with - this lead to pneumonia which contributed to need for ICU treatment (grave nd potentially life-threatening condition) o The immediate effects of failure to treat in accordance with standard of care resulted in conditions that rendered P in weakened position, which lead to need to be put in ICU (ongoing disability)

mahon v osborne -

emergency conditons and good systems Patient had perforated ulcer and full stomach contents. Patient had poor tolerance of anaesthetic, so was risk that man would die if the surgeon didn't operate quickly. Doctor employed two means of keeping track of swabs left in the body - attaching flag to swabs and counting in and out. Nurse who was keeping track confirmed all swabs accounted for and surgeon felt around for swabs leftover - missed one and patient died. o Held: these were exceptional circumstances - full stomach contents, struggling with anaesthetic, and in these circumstances, had taken r/s safety precaution. Perfection not expected, but reasonable care had been rendered o 'If a surgeon professes an art he must be reasonably skilled in it' (Scott LJ) o Is a complicated and urgent operation and there was system for counting swabs

bustos v hair transplant pty ltd

Man went to see D hair transplant clinic concerned about thinning hair. His uncle had similar transplant procedure - 'juriflap'. Certain risks/side effects associated with the procedure which D claimed they warned P of. Ended up with unevenly distributed hair, numbness and pain, and was unsightly flap where his hairline was. Sued for failure to advise of material risks o Held: didn't believe he hadn't been told of the risks, and even if he had been told, he was 'keen to the point of desperation' to have a transplant. Even if he had remembered being told of the risks, would have still gone ahead

(iv) removing foreign objects

Not a res ipsa loquitor case - depends whether r/s care was taken mahon v osborne and chasney v anderson

rosenberg v percival

Nurse consulted OMS about worsening malocclusion. Surgeon performed operation called sagittal split osteotomy, but didn't inform patient of risk of tempoeromandibular joint problems, a risk that eventuated. o The more remote a contingency, the more difficulty the patient will have in convincing a court that the existence of that contingency would have made then decide against surgery. Difficult exercise as at time of trial have the benefit of foresight, and have been focussing on the risk since its eventuation, but at time of surgery might have been nothing to single that risk out o Same as duty to warn of real and foreseeable risks (i.e. those that aren't far fetched or fanciful and are extremely unlikely to occur), so can import negligence concepts of 'material risk' (objective limb) and whether should have been aware patient likely to attach risk (subjective limb) o Is a subjective test - onus on the patient to prove they wouldn't have had the operation When their direct testimony on causation issue is rejected (subjective state of mind), is unlikely they will succeed on causation issue unless objective evidence is very strong o Evident willingness to undergo risks of general anaesthetic, failure to ask specific questions about risk, had serious need for the corrective surgery § Courts viewed sceptically the statement that had they known of the risks they wouldn't have consented - dismissed (no negligence)

Giurelli v Girgis (1980) 24 SASR 264: failure to listen to patient

P consulted surgeon about broken leg. Plate inserted in leg and referred to physiotherapy. He complained about ongoing pain in the leg ('serial complainer'). One day told to stand and put weight on the leg, but he continued to refuse because it hurt too much. Surgeon convinced him to and the leg broke in 4 § If he had listened to the patient would have indicated it wasn't healing properly. Needed to take ongoing history of him to check progress of healing § Duty to listen and consider a patient's pain should have been an indication that the bone was not healing properly

berger v mutton

P was 48 y/o woman who was trained and worked as a nurse. She had extensive experience in trauma & oncology. At time of claim, she was director of nursing home and had recurring abdominal pain for 2 years accompanied by vaginal and rectal bleeding. D recommended a procedure be done under anaesthetic, but in course of the operation (which was competently performed), the P's bowel was perforated, requiring immediate stiches. P claimed she hadn't been warned of risk of perforation of the bowel, as a result of which she had initial shock, pain, anxiety, insomnia, nightmares and extended hospital stay. Psychologist diagnosed PTSD and developed dependency on sleeping pills and alcohol. o D said he had advised P of risks, including perforation of bowel - court accepted this evidence. o Noted P had previous experience of the procedure that was undertaken, and the real fear that she held that she might have cancer - in these circumstances, didn't believe P's evidence that she wouldn't have gone ahead with procedure if she had been wanted of this particular risk

tabet v gett - principle

Principle: In medical negligence actions, P who is unable to prove on BoP that breach caused the harm, won't be able to retrieve the situation by arguing there was a loss of chance of a better outcome

smith and another v lennard

failure to examine / advise did not cause damage GP failed to request and endoscopy for patient complaining of trouble soiling. Later, endoscopy revealed the patient was suffering stomach cancer o Held: it was unlikely the cancer would have been found 5 years later even if gastric reflux could be attributed to the cancer.

stacey v chiddy

failure to examine/advise did not damage · Patient alleged that if a GP had made a proper examination of her at an earlier date, her breast cancer could have earlier been detected and cured. Trial judge found the GP had been negligent in failing to make a proper examination of the women's breasts, and in failing to give her proper advice after she had a negative response to mammograms and ultrasounds. o Held: the malignancies which formed some 15 months later were unrelated to earlier cysts that could have been ascertained by the GP

(viii) failure to properly train reception stadd to detect and prioritise patients with urgent need

alexander v heise & anor 2001 - receptionist owes duties & doctor vicariosuly liable A was unwell and complaining of severe headaches such that he took his wife's medication for it. Wife became concerned so made an appointment with Dr H's receptionist for him, but the day before appointment suffered ruptured aneurism and died. Told receptionist he had severe headache, requested migraine tablet, suffering stress at work, wanted a full medical o Conflict of evidence § She says she said her husband had a serious problem and wished to see a doctor; receptionist said all she said was my husband wishes to see a doctor o Three issues - § (1) Does receptionist owe a duty of care to correctly prioritise that patient § (2) Does a doctor owe a duty of care to train their receptionists to triage patients § (3) Is it just the doctor or just the receptionist that owes the duty of care o GP has duty to prioritise urgent patients and instruct their receptionist to perform this task. Receptionists have duty to patients with possible urgent condition to ensure they are seen in a timely manner or refer them elsewhere. A doctor is vicariously liable for the acts of their receptionist as an employee o Here duty had not been breached because there was insufficient information to raise an 'index of concern' - didn't convey sense of urgency as to condition. Doctor had put in place sufficient training methods and controls to ensure the receptionists were properly qualified

(Jones v Manchester Corporation - errors in treatment

administration of grossly excessive amount of anaesthtic

Strangeways Lesmer v Clayton [1936] 2 KB 11 - error in treatment

adminsitratio of excessive amount of drug following misreading of dosing instruction

rogers v whittaker

bolam not appropriate re failure of a doctor to advise of a material risk W suffered childhood injury where stick went through her eye leaving her in discomfort for her whole life. Ophthalmologist R said he could improve sight and appearance in eye. Offered that she undergo particular procedure, telling her about certain risks, but not the one that eventuated (sympathetic opthalmia - the 'good eye' gets worse). Had expressed concerns about keeping her good eye. At the date of the trial, became almost totally blind. · Held: doctor has one overarching duty to the patient with three aspects: (1) diagnosis, (2) advice, and (3) treatment. o (2) In terms of advice, doctor owes duty to advise of material risks: § If r/s person in the patient's position, if warned of the risk, would be likely to attach r/s significance to it. Or if medical practitioner is or should r/s be aware that particular patient if warned of the risk would be likely to attach significance to it, fail duty if don't warn o (1)/(3) profession related standard - i.e. Bolam

bolam v friern hospital management committee

bolam standard P underwent ECT procedure (electrical current through brain to treat psychiatric illnesses). P was not restrained or given muscle relaxant, so when he was given ECT, bounced off the table and broke a limb. Had the doctor been negligent in administering the ECT in this way? o In the ordinary case of events, not involving the application of special skill or care, the test for determining wither a person has or hasn't been negligent is that you judge the conduct by comparison with 'the man on the top of the Omnibus'. However, when what is being assessed is the use of some special skill, that test is not appropriate, because the man concerned doesn't have that special skill. § The test rather is the standard of the ordinary skilled person exercising or professing to have that special skill. In the case of a medical practitioner, negligence means failure to act in accordance with the skills of r/s competent medical partitioners at the time § It must be noted that there may be one or more proper standards, provided that the doctor confirms with one of these standards, the doctor isn't negligent (McNair J)

barnett v chelsea and kensington hostpital mangagement committee - errors in diagnosis

causation not established as no effective treatment could be administered group of night workmen had stopped to take tea, and felt unwell so went to hospital. Seen initially by nurse who was concerned at their condition so she contacted a duty casualty office (he had been on duty for a long time and was tired). Doctor told them to go away, but nurse persistent saying you needed to see them, tell them to go home and take lots of liquid and see GP in the morning if still not feeling well. Overnight, one died of arsenic poisoning from the tea. Relatives of the dead man sued the doctor and the hospital for negligence. o Hospital and doctor admitted they owed a duty of care, which extended to attending, diagnosing and treating people who turn up at the hospital. Hospital admitted their doctor had done none of this, but called a toxicologist who gave evidence that even if the duty medical officer had attended straight away, and even if that had correctly diagnosed arsenic poisoning in the man's system was so profound that he would have died anyway. o Held: unable to prove that breach had caused additional damage to the deceased (he was dying anyway) thus action in negligence failed.

lowns v woods - proximity

child suffered seizure while mother out walking. When mother returned, sent her other son for an ambulance, and the daughter to a doctors surgery 300m away for assistance. Daughter asked L to attend, but L refused and advised her to call an ambulance (L denied the conversation ever happened, conceding if it had, he would have had a duty) o CL doesn't impose duty on a person to assist another in need of help even where damage is r/s f/s. Physician is not under a duty to attend to a person, even in an emergency, if there is no pre-existing relationship with that person o However, proximity meant there was a duty § (1) Physical proximity - surgery located only 300m away from struggling patient § (2) Circumstantial proximity - he was at place of professional practice and not otherwise indisposed so as to prevent attendance § (3) Causal proximity - aware of treatment required and knew consequences of failure to attend o NB proximity has been abandoned for a finding of duty (Sullivan v Moody) Decision based around MPA (NSW) ethical duty to stop and assist

march v stramare 1991

common sense test HCA determined that 'but for' is still good, but another test 'common sense' could be used applied in chappel v har CLA has tried to determine which test will apply and when

negligence elements

duty of care breach of duty - failure to fulfil standard of care causation of damage - causation : did the breach cause the damage / would patient not have undergone if advised of risk - remoteness - is the damage that was suffered too remote or was it r/s f/s

heydon j - tabet v gett

insufficient evidence to support claim § The difference of % chance between trial judge and court of appeal suggests the evidence permitted only speculative findings Given the porosity of evidence, will not make a finding about whether loss of chance should be allowed in Australia

HCA - HCA judgments

kiefel - [leading judgement]: there was insufficient evidence before trial judge to support appellant's claim that brain damage might have been avoided § Even if evidence had of supported the argument, rejected on basis that there is no basis for loss of chance claim in medical negligence in Australia · 'Expressing what is said to be the loss or damage as a "chance" of a better outcome recognises that what is involved are mere possibilities and that the general standard of proof cannot be met' [143]. § Policy reasons outlined - adoption of possible, rather than probably causation as condition of liability would be a fundamental change requiring policy considerations § Would require degree of precision in assessment of probabilities which is not part of liberal, common-sense approach presently undertaken · General standard of proof required in negligence actions is flexible and did permit a level of uncertainty in proof of causation, and that the common law has shown itself able to adapt appropriately to the challenges faced in a number of cases involving difficulties of proof § CF loss of commercial opportunity for which damage is allowed

stairmand v baker

misdiagnosis caused damage misdiagnosis of breast cancer. CoA satisfied if woman had earlier been diagnosed, would have lived an extra 7 years and would have had less pain/suffering. o Misdiagnosis meant she needed chemotherapy which wouldn't have been needed had it been diagnosed originally

Chasney and Mahon ?

mpre cases consistent with chasney, mahon is the exception o Hocking v Bell [1948] WN 21: part of drainage pipe left in a patient and surgeon found negligent o Gloning v Miller (1954) 1 DLR 372: faucets left in the patient and surgeon found negligent o Dryden v The Surrey County Council [1936] 2 All ER 535: Surgical gauze plugging was left in a patient and surgeon found to be negligent

causation 1999 - 2004

need to shw that you would have 'avoided the risk', not that you wouldn't have gotten the procedure done chappel v hart

wood v qml

negligence tests caused damage (mole) In 1990 P was in Brisbane visiting his mother and step father and became concerned about a mole on his torso. It was small but had changed colour. The GP excised the mole and sent it to QML for analysis - indicated the material was not malignant. 3 years later, P moved to Mossman, and had been feeling unwell prior to this time (lost a lot of weight, tiredness and loss of energy, noticed lump in his armpit). GP in Mossman prescribed antibiotics but lump remained. Mother was a nurse who arranged lymph node biopsy that showed 23 malignancies. This spread from the original mole o Held: if the original test had been done correctly, he would have received treatment which would at the very least have prolonged his life, if not saved it. Negligence found against the pathologists

O'Shea v Sullivan and Macquarie Pathological Services

negligent testing and failure to refer caused damage Patient successful in negligence action against both GP and D pathology service for failing to diagnose cervical cancer. She had reported bleeding after having sex so GP ordered pap smear test Pathologist liable for negligently performing test, and GP negligent for failing to refer to specialist for treatment (as she was showing clear symptoms)

whiton v arnot

o : By not informing the patient of the additional damage during the procedure, the doctor may have behaved negligently in depriving the patient of the opportunity to seek an affective treatment for the additional damage. § P developed lump on right side of neck, and surgeon operated on three occasions. During third operation, severed the right spinal accessory nerve and treatment there after was negligent because: · (1) Failed to advise the P of his suspicion that he had severed the nerve; · (2) Failed to confirm he had severed the nerve through examination; and · (3) Failed to refer the P to appropriate specialist for timely remedial surgery § D argued his concerns that he might have severed the nerve were alleviated by submitting P to tests before discharge; his opportunity to further examine and offer remedial treatment was frustrated because P failed to show up for follow up § Held: surgeon who does something which might result in damage that is readily fixable, should, if they have suspicions of having done so, inform the patient so they can get efficacious treatment

Fenders v Waller

o : P had experienced certain symptoms and was referred to specialist who decided she had multiple sclerosis, when in fact she had a tumour on her spine. By the time the tumour was correctly diagnosed, it could no longer be correctly treated. Court had no trouble in establishing liability · Medicine is an inexact science, so an incorrect diagnosis which a r/s doctor wouldn't have made, resulting in loss of opportunity to undertake efficacious treatment will sound in damages. Loss of opportunity frequently arises where initial complaint is misdiagnosed so treatment is wrong, and by the time the correct diagnosis is given, treatment for the condition can no longer be provided

chappel v hart - kirby j

o Acknowledged it is natural to feel reluctance to those who suffered harm, but need to deal with it practically o Ultimately deciding the common sense test applies, which usually involves a large element of intuition. Is an uncertain guide and shouldn't brush off claims by saying it wasn't common sense § But for test can't be exclusive test, but will help here in determining whether something happened in common sense o Clear that common sense test meant causation was established § No statistics/other evidence to show that a more skilled surgeon would have less risk, but it is a matter of common sense to say it was § Also not the nature of the risk is the same o Causation established - negligence

crennan j - tabet v gett

o Australian law shouldn't permit recovery of damages where breach of duty of care results in loss of chance of better medical outcome § Loss of chance actions might encourage defensive medicine, the increased practice of defensive medicine might adversely impact on the Medicare system and private medical insurance schemes, and that there might be a number of negative effects produced if there were to be a change to the basis of the liability of professional liability insurance of physicians § The change in the common law requested by the appellant was radical and was therefore the kind of change that should generally be made by Parliament

chappel v hart - gaudron

o Causation - Dr C argued since the risk was inherent in the procedure, no negligence o Held: the fact that the risk was also going to happen is different from saying the risk would be the same had another doctor operated (i.e. nature of risk (always present) v degree (reduced))

chappel v hart - hayne j

o Causation re physical harm § Failure to warn was not causation of harm § Using 'but for' negative test - anything that occurred on that day was because of surgery § If had operation at later time, risk of the consequences would have been the same o Causation re loss of chance § The evidence that more experienced doctor would have less chance of risk was sparse § Case shouldn't be seen as a loss of chance: · Wasn't argued this way (was about physical harm) · May have wanted a better doctor, but not suggested the negligence was in not referring her to another doctor · What was lost? Risk couldn't have been eliminated. Might have been slightly difficult, but too hard to measure and compensate o No negligence

hayne & bell JJ - tablet v get

o Didn't demonstrate negligence caused damage § Loss of chance actions should not be allowed as they would alter the balance struck between the competing interests of claimants and defendants · 'The language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant's negligence was more probably than not a cause of damage ... The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so' [69].

chappel v hart - mchugh j

o Dissenting judgement - no causation thus no negligence o 'But for' test will not be the primary test, will rely on the common sense test (subjective in the way we should consider the common sense test) o Based on expert evidence, don't believe a more experienced surgeon would have subjected them to more or less risk, thus no negligence

hancock v state of qld - not every error ...

o Patient who has unsuccessfully undergone sterilisation procedure may not be successful in pursuing a negligence action if all they can prove is that the operation failed.

chappel v hart - gummow j

o Relied on 'but for' test, though noting it could lead to unjust outcomes, but works here o Clear evidence that if she had been warned of the risk, would have gone to the more experienced surgeon (who said out of his 150 operations, he had never had the same complication) o Canada SC case - when you're dealing with causation and something surrounding chance, can't deal with it as if it's a lottery, will always be more identifiable causes (which here is the level of seniority of the surgeon) o Causation satisfied

third parties - can owe a duty to any who might be injured as a consequence of the treatment of their patient

o Thompson v Davidson (1975) Qd R 93: When the doctor conducts an examination at the request of their employer, doctor owes a duty to the patient but also the potential employer. Might include duty to advise patient of results of pathology tests or if further investigations/treatments re warranted o Stokes v Guest, Keen and Nettlefold Ltd [1968] 1 WLR 1776: Doctor working in a factory was held liable for failing to hold 6-monthly medical reviews of workers given his knowledge of cancer risk o Is English authority (Evans v Mayor of Liverpool (1906) 1 KB R 160) suggesting a doctor will be liable in circumstances where the doctor has negligently released an infectious patient who then infects others (liable to people he infected) o [UK] Lindsey County Council v Marshall [1937] AC 97: Where doctor admits person to maternity home without warning that person of risk of outbreak of disease in that home, liability will flow

darley v shale -not every error rewsults in fallign below the standard of care

o bowel perforated while undergoing laparoscopy. Patient alleged should have done laparotomy to avoid this side effect, and was thus negligent. Held no negligence as doctor has weighing up risks and was correct in opting to perform procedure thought to be less risky and more minor

p's duty to mitigate loss - ces v superclinics

· young woman went to SC complaining of missing periods, breast tenderness etc. Doctor performs a pregnancy test which comes back as positive, but staff in error phoned her a told her she was not pregnant. She went back a second time when symptoms persist, but pregnancy test was done negligently which came back as negative. o CoA: If P has obligation to mitigate their loss, then is there obligation in someone who becomes pregnant as a result of misdiagnosis/failed sterilisation to abort the pregnancy or offer up the child for adoption - rejected vehemently o Thus mitigation of loss applies in all civil claims EXCEPT misdiagnosed pregnancy or failed sterilisation. Court will not reduce your damages if you choose not to abort/adopt

gummow acj - tabet v gett

o insufficient evidence before the court to make a finding § Even if evidence, rejects notion of loss of chance § Canvasses arguments both in favour and against the notion of 'loss of chance' · Traditional legal approach to causation reflect carefully considered compromise between competing interests of parties; allowing loss of chance would upset this balance · Might increase the practice of defensive medicine in Australia and that this would involve costly testing procedures · Loss of chance actions might remove analysis of the facts and law to a more abstract level, when the analysis should be focused on the actual harm suffered by the claimant and the possible causes of that harm § CF loss of commercial opportunity (damage is essential element in negligence action)

not every error in treatment results in successful neglgient claim

only fall below where only those indicating the practitioner has fallen below standard of r/s competent medical practitioner darley v shale hancock v state of qld whiton v arnot

mitigationof loss

p has duty to mitigate their loss · E.g. renting a house, but go on exchange and don't want to come home. Call landlord saying you're only 2 years into 6-year lease, but he can't sue you for 4 years rent. P cannot sit on their loss until it grows out of proportion (e.g. immediately put place up for lease) o If can only rent it at 50% of the rate you had with the P, can sue them for the difference and advertising prices for getting it back on the market

· Locher v Anor & Turner (22 Dec 1994): failure to listen to patient

patient complained over long period of time of rectal bleeding. GP should have listened and carefully considered complaint, and/or ordered further tests which would have diagnosed cancer, giving her a better prognosis.

breach 1999 - 2004

rogers v whittaker naxarkis v estern general hospital

standard of care - time periods - must assess action as agaisnt the law at the time it occured

standard pre 1992: bolam + 'at time of incident' (roe) standard 1992 - 1999: rogers v whittaker : bolam = treamtment / diagnosis material risk for advice standard 1999 - 2004: naxarkis: material risk for advice, treatment and diagnosis

chasney v anderson

standard surgery with loose system child went in for tonsillectomy and choked on a sponge that was left at the base of his nostrils and died. The surgeon neither used sponges with tapes attached, nor did he employ a nurse to count sponges in and out, though did ask whether all sponges had been removed to which assistant said no (he felt around and couldn't find the sponge). o Routine operation with no method for counting o Held: liability for failing to take r/s care

chelsea v barnett

traditional 'but for' test for causation · Hard to know where to stop - but for someone being born, they wouldn't have injured someone · HCA frustrated with multiple sufficient causes - common for there to be multiple causes of an accident · E.g. Concord: due to fly from CDG but ran late, so put extra fuel on board out of caution. Before taxied out, a piece of metal had been left by a previous flight that just landed. The metal got into the fuel tank and cause a fire. o If captain hadn't overloaded the tanks with fuel, they might not have exploded; if they hadn't left the metal on the runway, it wouldn't have exploded; if they had taken off on time, the mental wouldn't have been there o Thus if you apply the 'but for test', no one and everyone is liable

(vii) failure to counsel patient who might be seriously ill from leaving hosptial

wang v central sydeny area health service 2000 · W living in Newtown with friends, and after finishing work one day and walking home from the train, was seriously assaulted. He made it to his house and was taken to the hospital by his friends - triaged and waited (walked into triage room, seemed alert, pupils responding well). Were concerned at wait time so went to a nearby Super Clinics who said you need a head injury assessment from the hospital - they didn't have facilities so gave them list of things that would indicate head injury that would mean he needed to go back (e.g. violently ill, dizziness), offered to write them a letter to the hospital so they wouldn't have to wait, and sent him home. By time W seen at the hospital, suffered serious and irreversible brain damage. On his behalf, both super clinics and the hospital were sued o Hospital doesn't have any authority to detain you if you wish to leave - thus if he tried to leave, would be liable for false imprisonment/battery (they were told they could do what they wanted) § Court agreed, but said they had duty to counsel them about the risks if they left - and the hospital failed to do this § Were a number of things that could have been done to prevent them leaving § Didn't ask them where they intended to go and didn't offer advice about alternate sources of treatment should condition deteriorate § It matters whether they would have stayed had they been warned - satisfied they would have stayed if counselled to do so (just left because they didn't think he would be treated - had expressed concern several times and were told nothing but to wait) o Super Clinic had no ability to supervise or provide that type of care - held themselves out to do what they did (e.g. deal with less serious injuries/illnesses and refer for matters they couldn't manage) - no liability § Advice and enquiries are within the broad duty of care under Rogers v Whittaker but here he provided the advice to return to hospital and offered to write a letter such that he be seen without delay. Entrusting his care to apparently competent adults who appeared concerned about him is sufficient

Chin Keow v Government of Malaysia [P 399 - 400] [1967] 1 WLR 813: failure to take history

woman employed at social hygiene clinic in the 60s who spoke to nurse about ulcer and swollen glands. Nurse took her to doctor who examined her, following which he gave injection of penicillin (she died). Were notes on file at the clinic that indicated she was probably allergic based on previous reaction. o Was axiomatic that a doctor needs to take medical history, and failure to do so causing damage sounds in negligence · Duty is not a one-off; must continually revise notes to check on progress of treatment of patient, enquire as to the progress of treatment, and listen to the patient when they make complaints

errors in diagnosis - cases where negligence found

wood v qml o'shea v sullivan and macquaris pathological services stairmand v baker fenders v waller

decker

· Doctor had near miss car accident, and drove off to the police station without assisting the other vehicle. Professional misconduct case o Tribunal said it was permissible to move on (didn't have medical equipment, was female and it was late at night, didn't have phone, was distressed herself, took appropriate steps in going to police) No previous relationship to make the doctor liable

(v) errors in diagnosis

· Failure of doctor to diagnose condition is not of itself actionable, without showing that the failure to diagnose caused damage to the patient. Need to show that had practitioner diagnosed the condition, the P would have been able to obtain n/c treatment and situation wouldn't have happened

Kite v Malaycha 1998

· Failure to chase patient to advise of adverse results P was referred to general surgeon specialising in breast surgery because of a lump in her breast. Surgeon conducted a FNA (fine-needle aspiration), which was sent off for analysis by pathology service. Result sent back to D who shared a secretary with several other specialists at consulting rooms, and results went missing. Surgeon had asked P to return for results and she didn't. Years later, turned out she had breast cancer o Held: doctor negligent for failing to follow up with P when she failed to show up - and she was not contributory negligent in failing to show o Defendant sought that P was contributory negligent. Court rejected this counter-claim: Patient is NOT REQUIRED to chase up a Dr or turn up for appointments

Giessman v O'Keefe

· P broke her ankle requiring surgical orthopaedic treatment. She was placed in cast, which when removed, the skin was 'red, hot, angry looking and smelly'. o Held: should have recognised infection and prescribed the right type of antibiotic based on the type of infection. Gave one that was ineffective. o There was no difficulty in identifying the errors in treatment

(ii) causing an injury to a patient while the patient is undergoing surgery

· Patten and Anor v Parker [1941] 65 CLR 187: P went for operation for broken arm. Theatre was cold so surgeon asked attendant to put radiator on. In course of administering chloroform, it was knocked over and caught a spark from the radiator, setting the theatre on fire - she suffered serious burns. o High standard of care owed to unconscious patient. Necessary therefore to take appropriate precautions to see that the patient was safe against explosion and fire in respect of the bottle falling on the floor and in the ether being administered

tabet v gett - trial, CoA and HCA

· Trial Judge: had CT scan been done on 13th January, tumour would have been treated differently (steroids rather than drainage) reducing the inter-cranial pressure that contributed to brain damage. Adopted robust and pragmatic approach: o Decided there was 40% chance that appellant could have avoided some of the brain damage they would have suffered if CT scan had been done on the 13th January · Court of Appeal: allowed appeal o (1) Loss of chance actions inconsistent with authorities o (2) Loss of chance actions don't from part of recognised stream of authority o (3) Loss of chance actions inconsistent with requirement that causation be established on BoP o (4) Matters of policy best left to the HCA o Even if they had of allowed the loss of chance, the figure of 40% was excessive (at most 15%) · High Court: CL of Australia has never recognised compensability for a mere loss of chance simply where a breach of duty is established without causation of actual, physical injury.

hoffman

· Woman asked doctor outside practice whether he was a doctor and he denied it (professional misconduct case). Determined doctor hadn't acted properly o Unclear whether if you identify yourself and then not help o Unclear whether this was context dependent (i.e. because he was outside the surgery)

harvey and ors v pd

· doctor seen by male and female who said they intended to get married and wanted a sexual health screen done - screen indicated woman didn't have STD but male was HIV+ (didn't call female and tell her because of confidentiality to male patient), didn't ask male whether he intended to inform wife. She contracted HIV and sued the doctor o Held: Management of the couple was not in accordance with established practices - when doctor confronted by 2 patients whose interests might diverge, r/s doctor would advise them to be separately screened, or sought the consent of each to tell the other the test results. Because he did neither, fell short