Three Elements of Medical Law 3

1

LAWS5126 Medical Law | Exam Notes

Table of Contents

Three Elements of Medical Law 3

1. Contract 3

2. Battery 3

3. Negligence 3

Contract 3

Elements of Contract 3

Breach of Contract 3

Eyre v Measday [1986] 1 All ER 488 3

Thake v Maurice [1986] QB 644 4

Battery – (Medical Law as Tort Law) 5

The elements of battery 5

Consent 5

Elements of Consent 5

Emergency 9

Negligence – (Medical Law as Tort Law) 12

The elements of negligence 12

Duty of Care 12

Breach of Duty 16

The standard of care: 16

(i) Failure to take a medical history 17

(ii) Causing an injury to patient during surgery 17

(iii) Errors in treatment 19

(iv) Error in diagnosis 20

(v) Failure to follow-up 22

(vi) Failure to counsel patient who might be seriously ill, against leaving hospital 23

(vii) Failure to properly train reception to detect and prioritise patients with urgent need 24

Causation and Necessary Legal Principles 25

(viii) Failure to advise of material risks 26

Summary of the Three Elements and Causes of Action 37

1. Contract 37

2. Battery 37

3. Negligence 37

The Civil Liability Acts 39

Introduction 39

(1) CLA operates prospectively 39

(2) CLA not entirely comprehensive 39

(3) CLA is not a codification of the law of negligence 39

Duty of care under the CLA 39

Breach under the CLA 39

1. Work out ‘reasonable foreseeability’ – two sub-steps 39

2. Standard of care 40

3. Factors indicating a breach – calculus of negligence 40

Causation under the CLA 40

Doctors’ duties under the CLA 41

Competency 43

Capacity, Autonomy and Beneficence 43

The Definitions of Capacity 43

An Application of the Understanding Approach 44

Factors that impair competency? 44

Temporary factors 44

Permanent Factors 47

Information and Medical Practice 52

Part 1 - Confidentiality 52

Exceptions to Confidentiality 53

Is there a duty of disclosure? 54

Part 2 - Access to Records 56

Constitutional Limitations on Health Care 58

Relevant heads of power 58

Conjoined Twins 61

Concepts 61

Property Rights in Human Body Parts 64

Bio-Ethics 67

Four Principles of Bio Ethics 67

Three Elements of Medical Law

1. Contract

2. Battery

3. Negligence

Contract

Elements of Contract

1.  Offer to contract (patient’s request/need for medical services);

2.  Acceptance to create legal relations (provision of medical services);

3.  Intention to create legal relations (patient and physician have a conversation/concluding a contract for medical services); and

4.  Consideration (the patient making, or promising to make, a payment for medical services provided by the physician: Sidaway v Board of Governors of Bethlem Royal Hospital or submitting to medical services provided by the physician): Coggs v Bernard; Banbury v Bank of Montreal. Medicare system does not change the existence of consideration between a private patient and a physician, but no consideration exists between patient at a private hospital and a physician there who performs public services.

Breach of Contract

Actions for breach of contract for medical services between a patient are complicated because:

·  There may not be a contract at all – e.g. public hospital;

·  The action may be statute-barred (6 years, LAA s10);

·  The relevant contracts contain few express terms; and

·  Courts are unwilling to imply a contractual term that the medical treatment will be successful, although they will imply a contractual warranty that the physician will exercise reasonable care and skill in the provision of medical services to the patient:

o  Eyre v Measday;

o  Thake v Maurice

Eyre v Measday [1986] 1 All ER 488

Facts: E consulted gynaecologist to arrange a sterilisation operation. Dr Measday recommended to E and her husband an operation as ‘irreversible’. Dr Measday did not warn of a 1% risk that the operation would prove unsuccessful and expose E to having children. E underwent the operation and later had children.

Issue: The plaintiff sued the defendant for breach of contract, claiming that:

·  The nature of the contract was one by which the defendant contracted to render the plaintiff 100% sterile; or in the alternative

·  That the contract contained a warranty by the defendant, express or implied to the effect that the operation which he was to perform would have the effect of sterilising her.

Held: Plaintiff’s claims dismissed at trial and on appeal.

Reasoning: to ascertain the terms of the contract, have to apply an objective rather than subjective test. It depends on what the court objectively considers that the words used by the respective parties must be reasonably taken to have meant. The contract was, plainly a contract by the defendant to perform that particular operation. As to warranty, the reference to irreversibility simply meant the operative procedure in question is incapable of being reversed. It cannot be reasonably construed as a representation that the operation is bound to achieve its acknowledged object. Applying Moorcock, an term can only be implied if it necessary to give efficacy to the contract – there was no doubt that the plaintiff would be entitled to believe defendant was warranting that the operation would be performed with care and skill.

‘In the absence of any express warranty the court should be slow to imply against a medical man an unqualified warranty as to the results of an intended operation, for the very simple reason that, objectively speaking, it is most unlikely that a medical man would intend to give a warranty of this nature’

Authority: In order to interpret a contract for medical services, consider what the reasonable bystander would have taken the words used by the parties to have meant. Contractual terms will only be implied if they are necessary to give business efficacy to the contract for medical services.

Thake v Maurice [1986] QB 644

Facts: The plaintiff, Thake and wife had a consultation with defendant, Dr Maurice. Defendant did not advise the plaintiff that after the vasectomy, recanalisation could occur and that the plaintiff could have children again. The plaintiff signed the contract and the operation was performed competently. However, couple had further children.

Issue: Plaintiff and wife sued for breach of contract, with damages for the distress of discovering the pregnancy and the costs of birth and maintenance of the child until adulthood. Plaintiff’s wife

also sued for pain and discomfort.

Held: Dismissed on appeal

Reasoning: The object of the operation was to render Thake sterile and incapable of parenthood. The contract contains an implied warranty that in carrying out the operation, the defendant would exercise the ordinary skill and care of a competent surgeon. It did not contain an implied warranty that come what may, the objective would be achieved. A physician cannot objectively be regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms. The defendant did not do that in the present case.

Authority: A contract for medical services is contained in both the conversation between the parties and in any relevant consent form. Contracts for medical services contain an implied warranty that the physician will exercise reasonable care in the provision of medical services to the patient.

Battery – (Medical Law as Tort Law)

The elements of battery

1.  Direct action by the tortfeasor (the medical examination or treatment of the patient by the physician) – Reynolds v Clarke (1726) 93 ER 747;

2.  Intentional action by the tortfeasor (the physician’s choice to provide medical services to the patient);

3.  An application of force by the tortfeasor to another (any physical contact), even the least touching can constitute an application of force: Cole v Turner;

4.  A lack of consent to the action by the tort victim (usually a defence).

Hostility by the tortfeasor is not an element – Re F [1990] 2 AC 1 (Lord Goff). The causation of damage as a consequence is not an element – it is actionable per se.

Consent

In Re F (Lord Donaldson) – ‘In the absence of consent all, or almost all, medical treatment and all surgical treatment of an adult is unlawful, however beneficial such treatment might be. This is incontestable.’

Elements of Consent

1.  Volition – the decision to consent must be a free one;

2.  Information – the patient must have explained to him information about the procedure;

3.  Capacity – the patient must possess sufficient age and intelligence.

Volition

·  In order to provide valid consent, the patient must make the decision of her own volition

·  Modern approach – volition is not vitiated simply because patient is in a vulnerable position

Beausoleil v Sisters of Charity

Facts: B had discussion with Dr Cusson, where B requested a general anaesthetic, not a spinal. Cusson was prepared to operate under either and agreed and told his patient that she should advise the anaesthetist. On the day of the operation, B was given a sedative and taken to the operating room. Dr Forest, chief anaesthetist then talked B into taking a spinal. Cusson came into the room and was advised the spinal anaesthetic had been administered. The operation was performed competently but patient became paralysed waist down.

Issue: Plaintiff sued in battery claiming no valid consent had been given to the spinal.

Held: Plaintiff’s claim upheld on appeal.

Reasoning: In cases where there is no urgency the doctor for one reason or another is unwilling to render the services agreed upon by the patient the only course of action open to him is to withdraw. He may not overrule his patient and submit him to risks that he is unwilling and in fact has refused to accept. And if he does so and damages result, he will be responsible without proof of negligence or want of skill. Dr Forest had not discharged the burden that he assumed by taking the position that the defendant had consented to the change from the general to spinal anaesthetic.

Authority: Volition is not vitiated simply because the patient is in a vulnerable position in comparison to the physician. It must be the case that for some other reason the patient’s freedom to consent or refuse medical services is overborne.

Freeman v The Home Office (No. 2)

Facts: Plaintiff (Freeman) was a psychiatric patient. Dr Xavier was psychiatrist in care. Xavier prescribed Stelazin orally but the patient refused treatment. After refusals to take oral medication, Xavier prescribed Serenace to be injected intra-muscularly. Further oral medication was spat out each time. Plaintiff contended this was done by force. A prison hospital officer contested the use of force and that only minimum effective force would ever be used. There was other evidence of the plaintiff’s refusal to take electro-convulsive therapy and tooth extraction was respected.

Issue: Plaintiff sued in battery claiming he had not provided valid consent.

Held: Plaintiff’s claims were dismissed.

Reasoning: There was ample evidence to justify his finding of fact and accordingly the decision to which he came. TJ also took into account a prison setting where a doctor has the power to influence a prisoner’s situation and prospects.

Authority: A prisoner has sufficient volition to consent to or refuse medical services of a prison hospital officer. Being in a circumstance of vulnerability is not enough.

Information

What information is relevant and needs to be explained to a plaintiff prior to treatment?

Chatterson v Gerson [1981] QB 432

Facts: Woman who suffered chronic pain in the region surrounding a scar saw Dr Gerson for treatment. Dr Gerson recommended an intrathecal block to stop pain messages along the nerves. He mentioned a possible side effect of the procedure, but not the one suffered (loss of sensation in right leg and worse pain). She sued Dr Gerson alleging that the failure to warn of the risk sounded in damages for battery and negligence.

Issue: Whether failure to advise of the relevant side effect vitiated consent by lack of information.

Held: Plaintiff’s claims were dismissed on appeal.

Reasoning: In order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient than that involved in a breach of duty if the claim is based on negligence. Once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass. Of course, if information is withheld in bad faith, the consent will be vitiated by fraud.

·  Example – boy admitted for tonsillectomy and circumcised instead.

Plaintiff was under no illusion as to the general nature of what an intrathecal injection would be, and in the case of each injection her consent was not unreal.

Authority: The test of ‘broad terms’ – is meant to distinguish between the physical intrusions involved in treatment and the attendant risks of undertaking that treatment. The first are within the nature of the treatment, the latter are more properly the concern of an action for negligence in failing to advise. The dividing line between risks that are incidental (not forming part of the nature of the treatment) and those side effects which are so serious as to alter the nature of the treatment is a fine one.

D v S (1981) LS (SA) JS 405

Facts: Plaintiff experienced neck pain and headaches. Went to see defendant for treatment who advised of an operation to reduce breast size. Plaintiff asked about scarring and defendant drew up diagram which showed little scarring would be involved. Defendant said he had done a lot of these operations and that there would be no problem – a minor operation. Defendant did not mention any incisions around nipples or that they would be moved or use of drips or drains. Plaintiff woke up with unevenly relocated nipples, great pain and scarring.

Issue: Was the plaintiff adequately informed so that any consent was real?

Held: Plaintiff’s claims were upheld

Reasoning: Defendant should have told the plaintiff that there would be incisions around the circumference of the areolae, that the incisions would require stitching, that there could be a loss of sensation in the nipples and the areolae, that there would be some permanent scars and that she would see drips and drains and she would have substantial pain. Had she been told all of these things she would not have sonneted and it follows her consent was not truly given.