Negligence And The Duty Of Care

Scenario

A 19-year-old female is taken to hospital unconscious with excessive bleeding from a head wound. A doctor administers medication to stop the bleeding, which triggers a severe allergic reaction, causing the patient to fall into a coma.

In this case, it is assumed there are two possible options:

1. The doctor was negligent, as he breached his duty of care because he did not follow the medical procedures - medical records were not consulted before administering medication to the patient.
2. Patient had no medical history available; thus, doctor could not be held liable for the patient having an allergic reaction to the medication.

Thesis Statement

Medical negligence is determined by treatment falling under the level standard that is accepted. Doctors have a ‘duty of care’ to ensure they deliver reasonable care, judgement and skill when diagnosing, examining, advising and treating their patients, it is clear in this scenario that the doctor did not fulfil his ‘duty of care’.

Introduction

Medical negligence is considered to be when a medical professional operates a way that differs from the accepted standard of medical care. Medical professionals owe a duty of care to their patients that carries through from pre to post-operative care. In Queensland it is known that medical professionals can be under extreme pressure and there is a shortage of doctors. It is also known that doctors are not taking proper precautions in referring patients to specialists or for further testing. The legal process to proceed with medical negligence claims in Queensland is a costly and timely measure, contributed to by the fact that interstate findings are often required before the claim can be lodged. It is known that the number of complications that arise from Queensland hospital visits is quite high, it is assumed that not all complications are due to negligence, however, a percentage are. The governing legislation is the Civil Liability Act 2003 (QLD), the scenario that will be used to relate to this issue involves a 19-year-old female is taken to hospital unconscious with excessive bleeding from a head wound. A doctor administers medication to stop the bleeding, which triggers a severe allergic reaction, causing the patient to fall into a coma. This report will evaluate a solution to the problems that are currently being faced by victims of medical negligence.

Comprehending

For medical negligence to be determined, three key elements must be proven; duty of care, causation and damages. Negligence is a form of civil law that applies when a person fails to take reasonable care, and injury or damage results. As an example, in the above scenario, the doctor followed a ‘standard of care’ not his ‘duty of care’ towards the patient, resulting in her falling into a coma. The area of Tort Law known as ‘the tort of negligence’, involves harm caused by the lack of success to act as a form of carelessness, possibly with diminishing circumstances. In most negligence cases, there will be a contractual agreement (implied or expressed) between the parties involved. The law in Queensland recognises numerous relationships which naturally attract a duty of care.

These relationships include:

• Doctor and patient
• Road user and another person on or near the road
• Employer and employee
• Land owner and tenant
• Occupier of land and visitor
• Teacher and student
• Manufacturer and consumer

Therefore, doctors owe a duty of care to their patients. A medical practitioner’s actions will be assessed by proving medical knowledge and determining if his/her actions fall under the level of care that is required from a medical professional in a comparable scenario. When the level of care has not been met, it can be determined as a breach of duty. The elements of negligence relate to the chosen scenario such as whether or not the duty of care by the doctor was breached.

Negligence is part of the Civil Law which comes under Tort Law. The tort of negligence in Queensland was substantiated by case law but is also governed by the Civil Liability Act 2003. The main features of negligence include duty of care; the duty of care must have been breached and the breach of duty of care must have caused damages/injury to someone else.

Analysing

Nature and Scope of the issue

Referring to the scenario, focusing on a potential breach of the doctor’s duty of care i.e: whether the doctor has performed a negligent act. All doctors owe certain duties to their patients and a breach of any type of duty gives a cause of action for negligence against the doctor. There could be many contributing factors to this potential breach of duty; doctors can be under extreme pressure in their work environments, often needing to work extremely long hours with no sleep as well as other pressures.

In Queensland, there has been a skill-shortage of doctors for a number of years, a critical shortage in rural Queensland, this also leads to high pressure situations and stress. These issues all contribute to doctors not making decisions as clearly as they would be able to in normal circumstances.

Due to medical negligence existing, the effect of the issue in a civil action by the injured party or a criminal prosecution by the state, in that case, medical negligence needs to be addressed immediately because more people could potentially be suffering, due to doctors being negligent. In Case 1: Medical mistakes taking a high toll: it is evident that a doctor administered an overdose of 62 Panadol tablets over 14 days to help relieve the pain of the patient. Due to being administered this overdose, the patient’s liver failed and neither the doctor, nor the staff, noticed the effects of this treatment, the patient than fell into a coma resulting in a death. This case clearly demonstrates a breach of duty of care towards the patient.

Arguments For

One argument is that there is a lack of medical staff permanently available at Queensland hospitals, which is supported by Linda Tyrell (in the case of Miller vs QLD Health) who says 'I feel the State Government needs to be accountable for the condition and lack of staff within the hospital system as well as ensuring all children are looked after under any circumstances.” Ms Tyrell presented her daughter to a Queensland hospital with stomach cramps, “Queensland Health agreed to a compensation payout of $2.5 million after they left the girl for eight hours until her condition deteriorated so badly, she stopped breathing. She suffered permanent brain damage, paralysis and terrible pain (Christine Kellett, 2009)”.

Another argument is that doctors are not taking proper precautions in referring patients to specialists or for further testing, which is supported by Case 5: Queensland skin cancer patient dues doctors for ‘medical negligence’. The plaintiff (victim), Stacey Ferguson, says 'No one ever seemed to be worried about it and then I went back a few years later and it had come back, but it was a lot worse.' Ms Ferguson ended up needing her right eye and a large part of her face removed because a skin cancer was not properly treated.

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“Unfortunately, in Queensland the legal system is geared against negligence claims against doctors and hospitals. Victims are subjected to an expensive claims process, which is said to be greatly hampered by the fact that Queensland specialists are usually unwilling to give evidence against their peers in the medical profession (Mark O’Connor, 2018). The law in Queensland accepts that practitioners may be required to make hard medical decisions under serious pressure. Medical negligence to be proven, there are three main elements that are assessed: Duty of care, causation and damages. Proving a breach of duty of care involves the actions of the practitioner being proven to have fallen below the standard of care that is expected from a medical professional in a similar scenario. Thus, leading to the beforementioned issue of fellow practitioners not being willing to provide this information.

There is also an argument that doctors are not conducting proper, pro-active follow-up, which is supported by Richard O’Keefe’s document on “The duty of medical practitioners to follow up” in which he states: “following up on tests and results that are expected to be, but have not yet been, received by the practice; and chasing or tracing the patient to discuss the report, test or results after they have been received by the practice and reviewed, or if the patient did not attend as expected”. Multiple cases are reviewed in this document, stating where doctors are breaching their duty of care to their patients by not providing proper follow up consultations.

Another contributing factor that poses difficulty for potential victims of medical negligence in Queensland is governed by the “Limitations of Actions Act 1974”. This act “stipulates that an action for negligence must be started within three years from the date on which the action arose (Limitation of Actions Act 1974, 2017)”. The investigation and pursuit of a possible medical negligence claim is a very complicated and costly exercise. “After giving an initial notice which gives the basic details of the client's claim, a potential claimant must within 12 months, before a claim can proceed, provide a report from a medical specialist (Legal News Brisbane, 2018)”.

Arguments Against

One argument is that doctors are responsible for any complications that may arise from their treatment or surgery on a patient, this is supported by Case 2: Brain-damaged teenager loses bid to sue obstetrician, where the court ruled that the then teenagers injuries were not a direct result of the doctor’s actions. Certain situations are not due to negligence of the medical staff, they were unavoidable and out of their control.

Another argument is that under Chapter 10.47 of the “Equality, Capacity and Disability in Commonwealth Laws (DP 81) it states that Under the law of trespass, patients have a right not be subjected to an invasive procedure without consent or other lawful justification, such as an emergency or necessity.” In cases such as the example scenario, it could be argued that due to this patient being unconscious and suffering a head injury that her situation was an emergency and there was no time to gain consent and therefore have prior knowledge of her pre-existing allergies (Review of State and Territory Legislation, n.d)..

Evaluating

Legal Alternatives

The current legislation processes are not effective given that an apparent “one in every nine patients who go to hospital in Australia end up suffering a complication. The complication statistics rise to one in four for those who stay in hospital overnight”. Not that all these complications would be due to negligence, it is assumed that a certain percentage of them would be due to negligent unsatisfactory post/pre-operative care, or medical treatment.

The excessive legal fees that victims are required to pay for up front, make the potential claim out-of-reach for many people. This is especially true given the time restrictions to lodge a claim.

Everyone, including citizens and the government is bound by and entitled to the benefit of laws. Upon evaluating the effectiveness of the current Queensland laws surrounding negligence, specifically medical negligence, it seems further work is needed to continue the development of the “National Safety and Quality Health Service (NSQHS) Standards, produced by the Australian Commission on Safety and Quality in Health Care” (Australian Commission on Safety and Quality in Health Care, 2019).

There needs to be a greater focus placed on pre-op and post-op care, ensuring medical staff and practitioners are aware that their obligation of duty of care extends to these areas also. This would potentially affect university lecturers by way of the necessary inclusion to the curriculum, also the professionals involved in the NSQHS partnership including: the Australian Government, clinical experts, the private sector, patients and carers, states and territories.

It seems as though Queensland needs to be brought into line with other states as in the current situation; medical negligence claims (in most cases), need evidence provided by specialists from interstate to support their case. A recommended update to Civil Liability Act 2003 (QLD) Chapter 2, Division 5.22 (1) “A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.” Should include an amendment including – ‘professionals are required to give statements that may be used in court, if required, revealing the way they would have acted in certain circumstances.’ This option would be achieved by be amending the law which is a formal or official change made to a law, constitution, contract or other legal document. Amending the law can be amended by removing a perceived fault, correct a problem or omission, or to simply update the law. This option would obviously have an effect on medical practitioners, hospitals and private practice.

Recommendation

The recommendation is to amend the current Civil Liability Act 2003 to ensure cases of alleged negligence are more accessible to the general population in Queensland. The situation, as it stands, means that there is a culture developing throughout Queensland medical practitioners due to them not being pursued for compensation from the outcomes of their negligence. The obvious cause of this is due to the process being too expensive with other medical professionals’ opinions having to be sort from interstate on top of hefty legal costs. The benefit of this recommendation rather than continued work on the NSQHS is the number of patients that will have access to the rights they are entitled to in a shorter time period.

Conclusion

Conclusively, it was evident from the analysis and evaluation that medical professionals owe a duty of care to their patients that carries through to post and pre-operative care. It is understood that professionals within the medical industry can be under extreme pressure and there is a shortage of doctors in Queensland. It is also demonstrated that doctors are not taking proper precautions in referring patients to specialists or for further testing. The legal process to proceed with medical negligence claims in Queensland is a costly and timely measure, contributed to by the fact that interstate findings are often required before the claim can be lodged. It is known that the number of complications that arise from Queensland hospital visits is quite high, it is agreed that not all complications are due to negligence, however, a percentage would be.

The recommendation for improving the current procedure to lodge a claim for medical negligence is long overdue for Queensland claimants, the system needs re-examining and should protect both the public and the medical professionals, without being weighted so heavily to one side.