MEDICAL NEGLIGENCE TEMPLATE – FAILURE TO DIAGNOSE & TREAT

Issue 1 – Duty of Care
  • Established categories  Hospitals, doctors, nurses& other healthcare professionals owe a duty of care to their patients: Rogers v Whitaker
  • Single & comprehensive duty of Dr’s broken up into 3 aspects  Advice, Diagnosis & Treatment
  • Novel categories  Alternative health practitioner (Shakoor), medical receptionist (Heise), sexual partner of patient (BT v Oei), unborn child of patient (X v Pal)
  • There is NO general duty to rescue, so healthcare professionals under no obligation to come to person’s aid

↓

Issue 2 – Breach of the Duty
Sub-Issue 1: Set the Standard of Care
1)Objective Test  Whether a reasonable person in the position of the Def’t would have done or omitted to do the act in the circumstances: Rogers v Whitaker
2)Subjective Characteristics of:
(A)Defendant (Medical Practitioner)
-Skill Consider whether specialist (Rogers) or inexperienced (Wilsher; Jones)
-Knowledge
(B)Plaintiff (Patient)
-Knowledge of Dr’s inexperience: Cook / Sub-Issue 2: Has the Standard been Breached?
1)Was the breach reasonably foreseeable (not far-fetched or fanciful): Wyong Shire Council
2)Risk must not be insignificant: s9(1)(b) CLA
3)Response to the Risk: ss9(1)(c) and 9(2) CLA
-Don’t worry about calculus of neg. factors
-Professional Standards: s21(1) CLA preserves same test as Rogersrelating to material risks (Proactive/Reactive Duties or Objective/Subjective test)
-Current med. opinion – not much weight
-Therapeutic privilege exception? (Battersby)

↓

Issue 3 – Damage
Recognised at Law
  • To be recognised at law, the physical injury and subsequent injury must be that which is most likely.
  • A loss of opportunity will not be that which is most likely: Chappel v Hart
/ Causation in Fact
  • s11(1)(a) restates the c/law ‘but for’test: March v Starmare
  • Exceptional circumstances & loss allocation: s11(2) CLA
  • Pltf must show 2 things:
1)Pltf would have refused t/ment
-Test applied is subjective (Chappel) but obj. factors can be taken into account (Rosenberg; s11(3) CLA)
2)Treatment caused loss
  • Pltf has burden of proof: s12
  • Intervening Acts: Mahoney
/ Remoteness
  • Damage must be reasonably foreseeable as a real risk: Wagonmound No 2
  • s11(1)(b) CLA updates this ‘within app. scope of liability’
  • s11(4) CLA Loss Allocation
  • Egg-Shell Skull Principle‘Take your victim as you find them’

↓

Issue 4 – Defences
Contributory Negligence
  • Partial defence under s10 Law Reform Act 1995 (Qld)
  • Apportioned on basis of what is just & equitable
  • Delay in seeking medical advice: Kalokerinos
  • Failure to properly describe symptoms: Locher
/ Assisting at Accident Scene
  • s16 Law Reform Act
  • 5 elements to satisfy:
1)Dr’s and nurses
2)Med. care, aid or assistance
3)Emergency (scene)
4)Without reward or fee
5)Good faith & without gross negligence / Limitation Period Expired
  • s11 Limitations of Actions Act 1974 (Qld) 3 years from the date damage occurred in which to bring claim for personal injury
  • ss20A-20J Personal Injury Proceedings Act 2002 (Qld) regarding claims by children

Issue 1 – Duty of Care
  • Established categories  Hospitals, doctors, nurses & other healthcare professionals owe a duty of care to their patients: Rogers v Whitaker
  • Single & comprehensive duty of Dr’s broken up into 3 aspects  Advice, Diagnosis & Treatment
  • Novel categories  Alternative health practitioner (Shakoor), medical receptionist (Heise), sexual partner of patient (BT v Oei), unborn child of patient (X v Pal)
  • There is NO general duty to rescue, so healthcare professionals under no obligation to come to person’s aid

↓

Issue 2 – Breach of the Duty
Sub-Issue 1: Set the Standard of Care
1)Objective Test  Whether a reasonable person in the position of the Def’t would have done or omitted to do the act in the circumstances: Rogers v Whitaker
2)Subjective Characteristics of:
(A)Defendant (Medical Practitioner)
-Skill  Consider whether specialist (Rogers) or inexperienced (Wilsher; Jones)
-Knowledge
(B)Plaintiff (Patient)
-Knowledge  of Dr’s inexperience: Cook / Sub-Issue 2: Has the Standard been Breached?
1)Was the breach reasonably foreseeable (not far-fetched or fanciful): Wyong Shire Council
2)Risk must not be insignificant: s9(1)(b) CLA
3)Response to the Risk: ss9(1)(c) and 9(2) CLA
-Don’t worry about calculus of neg. factors
-Professional Standards: s22 CLA creates a modified Bolam principle: ‘widely accepted by peer professional opinion by significant no. of respected practitioners…’
-Except if irrational or contrary to written law
-But, standard to be determined by the courts

↓

Issue 3 – Damage
Recognised at Law
  • To be recognised at law, the physical injury and subsequent injury must be that which is most likely.
  • A loss of opportunity will not be that which is most likely: Chappel v Hart
/ Causation in Fact
  • s11(1)(a) restates the c/law ‘but for’test: March v Starmare
  • Exceptional circumstances & loss allocation: s11(2) CLA
  • Necessary to show that act or omission caused pltf to suffer damage
  • Will not be satisfied if damage would have been suffered anyway: Barnett
  • Pltf has burden of proof: s12
  • Intervening Acts: Mahoney
/ Remoteness
  • Damage must be reasonably foreseeable as a real risk: Wagonmound No 2
  • s11(1)(b) CLA updates this ‘within app. scope of liability’
  • s11(4) CLA Loss Allocation
  • Egg-Shell Skull Principle ‘Take your victim as you find them’

↓

Issue 4 – Defences
Contributory Negligence
  • Partial defence under s10 Law Reform Act 1995 (Qld)
  • Apportioned on basis of what is just & equitable
  • Delay in seeking medical advice: Kalokerinos
  • Failure to properly describe symptoms: Locher
/ Assisting at Accident Scene
  • s16 Law Reform Act
  • 5 elements to satisfy:
1)Dr’s and nurses
2)Med. care, aid or assistance
3)Emergency (scene)
4)Without reward or fee
5)Good faith & without gross negligence / Limitation Period Expired
  • s11 Limitations of Actions Act 1974 (Qld) 3 years from the date damage occurred in which to bring claim for personal injury
  • ss20A-20J Personal Injury Proceedings Act 2002 (Qld) regarding claims by children