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WEEKEND
WRITE-UP

WEEKEND WRITE-UP

, Weekend Write-Up, Brydens Lawyers

MEDICAL NEGLIGENCE AND COVID-19

The advent of Covid 19 has brought into focus the past achievements of the medical profession in achieving almost miraculous advances in public health in the eradication of diseases through vaccination and other programmes.  It has also raised awareness of the limits of medical science in times of crisis at both a public and personal level.  The search for a vaccine to deliver us continues.   In the meantime, we can only place our hope in medical science in its present state of evolution to save us from an epidemic that does not appear to be well understood by our medical profession and defies our very existence by taking so many lives.

At what point should our medical profession, or those in charge of our public health institutions, be brought to account for any limits or failings in their intervention. The almost sacred position held by the medical profession in our society has partly come about through prior advances in medical science that have achieved so much for public health.  It also has its origins in Western European philosophy that has also informed the law of medical negligence.

Medical negligence is a branch of the law of professional negligence.  At traditional English common law, only three callings were recognised as “professions” – clergy, doctors and lawyers.   As other vocations, such as engineering and banking, have adopted some “professional” characteristics, professional negligence principles at common law have also been applied to some extent to those fields as well.

The fiduciary obligations of “utmost trust and confidence” are the defining feature of the professional relationship.  The rationale is that a patient or client (as in the case of a lawyer) must have absolute confidence in making full disclosure of all matters relevant to the retainer of the professional.   The personal information provided is held in the strictest confidence, as is the advice provided by the professional, with disclosure permitted only in limited circumstances.

The defining feature of the fiduciary relationship between professionals and their clients was explained by the High Court of Australia in Hospital Products Ltd v U.S. Surgical Corporation (1984) 8 ALJR 58, as requiring the elevation by professionals of their client’s interests above their own personal interests.

Apart from an overriding fiduciary obligation of trust and confidence, a duty of care owed by medical practitioner is determined to some extent by the structure and ethos of the medical profession.  The Hippocratic Oath to do no harm as well as the principles of medical science and practice have a role to play in defining the scope of the duty of care owed to patients.  It is not possible to find that a medical professional has been in breach of a duty of care owed to a patient unless the standard of that duty has been defined.

Medical practitioners receive a bachelor of medicine and bachelor of surgery (“MBBS”), undergo an induction as resident medical officer (“RMO” or “intern”) in a teaching hospital for 12 months before completing training as a registrar over a period of 4 years.  A medical practitioner may embark on general practice after completing some of the years of training as a registrar.  After completing all years of training as a registrar, a medical practitioner may continue training as a specialist over a period of 6 years through various colleges.  Those in specialist training may progress through the ranks as a fellow or staff specialist in a particular teaching hospital before seeking specialist consulting roles as a visiting medical officer (“VMO”) at a number of teaching hospitals.  The standard of care required of a medical practitioner may vary depending upon the extent of his or her training and experience.

Registrars carry out their duties as employees of statutory corporations that operate hospitals in various “local health districts” in New South Wales.  Those statutory corporations are usually sued for the negligence of employed registrars on the basis of vicarious liability.

A patient may be admitted as a public patient to a teaching hospital under a particular consultant.  Any medical or surgical treatment will usually be carried out by the registrars allocated to that consultant for training.  A consultant may actively participate in any medical or surgical treatment with the registrar or may merely be “on call” for assistance.  It is important to know whether the consultant played an active role in any surgical procedure at a public hospital in analysing a potential medical negligence claim.  It may be necessary to join the consultant as a defendant in addition to the public hospital.

A statutory corporation operating a public hospital will owe a non-delegable duty of care to a public patient who has not paid for medical services.  There will be no contractual relationship between the hospital and the patient to confirm the existence and define the scope of the duty of care.  The statutory corporation operating the public hospital will usually be liable for the negligence of an admitting or attending consultant who is not an employee of the hospital pursuant to principles of non-delegability.  These principles operate along the same lines as vicarious liability.

A consultant who admits his own private patient to a public hospital or private hospital will perform the surgical or other treatment himself pursuant to a contract with his private patient.   Any alleged breach of duty of care on the part of the consultant must be considered in accordance with the scope and nature of the contractual relationship with his or her private patient.

A physician in the medical profession carries out a primary diagnosing and treating role in managing a patient.   The physician will be responsible for the prescription of medication and may refer the patient to other specialities such as radiologists and pathologists or surgeons.   It is important to identify who is managing the patient and making treatment decisions.  These decisions may be based upon separate advice received from consulting radiologists and pathologists.  It may be necessary to join a consulting radiologist or pathologist for mis-interpreting or mis-reporting a radiograph or pathology sample.  A general practitioner may operate in the role of physician by arranging radiology and pathology or by referring the patient to a surgeon.   The roles and functions may overlap.

The standard of care required is measured according to the state of medical knowledge and practice prevailing at the time of the alleged negligent treatment.   At traditional English common law, the standard of care required was described in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 as:

“Ordinary care and skill on the part of a competent medical practitioner in the position of the defendant.” (the “Bolam Test”)

It was necessary under the Bolam Test to lead evidence from an expert witness, who was another doctor in the same field, on behalf of a plaintiff bringing a medical negligence claim as to the applicable standard of medical care required as well as whether the care actually provided fell short of that standard.  The defendant doctor would escape liability under the Bolam Test if he or she were able to establish through expert evidence from another doctor also in the same field that he or she acted:

“In accordance with a practice accepted at the time as proper and by a responsible body of medical opinion even though other doctors adopt a different practice (Sidaway v Board of Bethlehem Royal Hospital and Maudsley Hospital [1985] AC 871)

It can be seen from these principles for finding liability in negligence at common law against medical professionals that the standard of care applied allows for differences of opinion as to what may be “proper” so long as the relevant “difference of opinion” is held by a “responsible body” of their colleagues.  This “peer review” test has been adopted into the law of New South Wales, subject to some modification, by the following legislative provision in the Civil Liability Act 2002 that somewhat misleadingly refers to a “standard of care:”

5 O – Standard of Care for Professionals

  1. A person practising a profession (“a professional”) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
  2. However, peer professional opinion cannot be relied upon for the purposes of this section if the court considers that the opinion is irrational.
  3. The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent one or more (or all) of those opinions being relied upon for the purposes of that section.
  4. Peer professional opinion does not have to be universally accepted to be widely accepted.

Section 5 O (1) creates a defence to an action in medical negligence similar to that allowed under the Bolam Test at common law that allowed a medical professional to rely upon a difference of opinion as to the standard of care required that may exculpate him or her so long as it was widely although not necessarily universally held by his or her colleagues.  The main modification introduced by the legislation allows the Court to reject any such difference of opinion relied upon in defence should it be “irrational.” (5O (2))

It will be interesting to see how those who are aggrieved by public health interventions to Covid 19 will fare in seeking redress through the legal system against those managing the response to an epidemic that is not well understood by medical science and where there have been significant differences in opinion by public health officers as to how the response is to be managed.  The approach to management of the response appears to be a “trade off” between preservation of human life on the one hand and the maintenance of public finances and health infrastructure on the other.  At what point does the “trade off” fall foul of “widely held peer professional opinion” as to “competent medical practice.”  A comparison between the disastrous public health response in the United States of America to the relatively more successful response in Australia demonstrates the extremes of the “trade off.”  It is only the legal system that can bring public health officers and medical professionals to account for failing the public and it is the lawyer’s professional duty to do so.

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NEED LEGAL ADVICE? YOUR QUESTIONS ANSWERED

PERSONAL INJURY

 

ANONYMOUS QUESTION:
I was involved in a car accident where someone changed lanes and hit me. I was in the left lane and deemed not at fault. I have no insurance but the other at fault driver does. I contacted his insurance company and they said he needs to lodge the insurance claim himself. I contacted him and he refused to lodge a claim. What do I do in this case to ensure damage to my vehicle is compensated for by the at fault party?

BRYDENS LAWYERS ANSWER:
What you have raised is unfortunately a difficulty that is encountered quite regularly. That is, if the party at fault does not make a claim on their insurance then the claims process itself is not activated and the insurer will not respond to a claim as against its insured. It is of course open to you to try and encourage the other party to make a claim on their insurer. If they fail or refuse to do so then there would be no reason why you should not commence formal court proceedings to recover the damages to which you are entitled. Such proceedings would no doubt focus the attention of the other party who would be motivated to contact their insurer. Brydens Lawyers are available to assist and should you require legal representation please click here to contact us to speak with one of our experts.

FAMILY LAW

 

ANONYMOUS QUESTION:
My partner and I have separated and we wish to resolve our financial issues. We purchased a house and land package together although our relationship broke down soon after. We have separated now and the house is near completion. Do we need to go to court? I want to make sure I receive what I am entitled to, I am worried it is getting messy and unfair.

BRYDENS LAWYERS ANSWER:
The majority of property settlements occur outside the court system. It is indeed the preferable course. It is a much cheaper and quicker alternative to commencing proceedings in court. If the parties are able to resolve their differences and reach a resolution then the agreement can be formalised and lodged with the Family Court for appropriate orders to be made. No court attendance is required. An alternative is for the parties to enter into a binding financial agreement which does not need to be lodged with the court. There are however a number of specific legal requirements pertaining to a binding financial agreement which must be fully complied with in order to ensure that the agreement is valid.

SUPERANNUATION & TPD

 

ANONYMOUS QUESTION:
I used to work for a government agency from 1986 until November 1994. Due to a car accident on the way to work, I was injured and unable to work after this. I have been living on a disability pension ever since. Recently I have found out that I might be able to seek a lump sum payout and a pension from superannuation fund. Is this possible and can you assist with it?

BRYDENS LAWYERS ANSWER:
We assume that the insurer deemed you to be at fault in the accident and that no motor vehicle accident claim was made. It is correct that there may be rights available to you to claim lump sum benefits pursuant to your superannuation policy which would ordinarily contain provision for a total and permanent disablement claim. Given that you have been unable to work you would, ordinarily, qualify for payment of benefits in this regard. Brydens Lawyers has a specialised Superannuation and TPD Division which can assist. We would invite you to contact us to arrange an appointment with one of our expert lawyers.

COMMERCIAL LAW

 

ANONYMOUS QUESTION:
I want to understand my current obligations under my commercial lease agreement that is contingent on DA being approved. My DA is not yet approved but I have been told the council today that they are thinking of providing me with a deferred commencement date which means the DA is not operational until the conditions are met. The financial implications are too much for me to meet the condition and I would prefer not to continue with the both the DA and the lease but don’t want to lose my deposit. What are my rights?

BRYDENS LAWYERS ANSWER:
Of course, any arrangements or contract including the Commercial Lease to which you refer, can be altered, amended or terminated by agreement between the parties. It would be recommended that discussions be undertaken with the lessor to determine whether or not they would be agreeable to a Surrender of Lease and if so, on what terms. Otherwise it will be the terms of the Commercial Lease that will determine the rights and obligations of the parties. If, as you say, the Commercial Lease is contingent on a DA being approved then until such time as the DA is approved the Commercial Lease is not in force or has effect. Brydens Lawyers has a specialised commercial division which is available to assist. We would invite you to contact Brydens Lawyers to speak with one of our experts should you wish to engage expert legal advice and representation.

PROPERTY LAW

 

ANONYMOUS QUESTION:
We bought an investment property in QLD through a financial group in Sydney. They misrepresented the property, providing us with paperwork that states it was a brand new build. Upon settlement we found out that the property was in fact 5 years old. We want to claim compensation for loss of depreciation, extra strata costs, misrepresentation and mental anguish. Are we within our rights to do this?

BRYDENS LAWYERS ANSWER:
When buying any property the guiding principle for purchases is “buyer beware”. That is, as the purchaser you bear the onus of investigating and establishing exactly what it is that is being bought before Contracts are exchanged.
That being the case consideration may have to be given as to whether there is an available cause of action as against your solicitor or licensed conveyancer who acted on your behalf in whom was entrusted the obligation to ensure that what was being purchased was that which was being represented to you. Your legal representatives have an obligation to ensure that the contract and all the details of the property that are being purchased are explained to you fully and that you understand same.
Before advising further it would be necessary for us to undertake a complete review of your conveyancing file. The Contract and Disclosure Documents would establish the basis of the agreement that existed as between you and the vendor. Any other representations about the property, whether made verbally or in marketing material, generally cannot be relied upon unless they form part of the Contract. Therefore, your only recourse may be against those who were representing you on the purchase.
To consider the matter we would invite you to contact Brydens Lawyers on 1800 848 848 to speak with one of our experts.

WORKERS COMPENSATION

 

ANONYMOUS QUESTION:
I am a pharmacist in a small country NSW town. I had recently banned a woman with a drug problem from entry to the pharmacy. Last month, she attacked me, tore through the shop – destroying property and stock and stole medication. The police initially charged her on 7 counts but the courts dropped it to 2 and she was out on bail right away. I am in the process of putting in place an AVO against her and her partner. I have also required medical attention and time off work as a result of the injuries sustained during her attack. Can I sue her for compensation in addition to the criminal charges she is facing?

BRYDENS LAWYERS ANSWER:
Given that the injuries sustained by you occurred during the course of your employment, (and assuming that you are an employee), you are entitled to make a claim on your employer’s workers compensation insurer. The benefits to which you are entitled include weekly benefits of compensation (wages) for periods of absence as well as reimbursement of all reasonable and necessary medical treatment expenses.
In some cases, you would be also entitled to claim lump sum compensation commensurate with the degree of permanent impairment that results from the injuries. In addition to same, you would have a common law action in assault available as against the perpetrator. Of course, any compensation that you receive from the workers compensation insurer would have to be reimbursed to that insurer from any damages that you recover from the perpetrator. There is a prohibition on “double dipping”. However, what would be of more concern, is whether there would be any prospects of recovering any judgment monies from the perpetrator. That is, although the claim may be successful and you are awarded damages for the injuries which you have sustained a question then arises as to whether the perpetrator has any capacity to pay those judgment monies. One other alternative is to make a claim through the Victims Compensation Tribunal for the injuries which you have sustained. Again however it is not open to you to retain both benefits under the workers compensation scheme and compensation from the Victims Compensation Tribunal.

EMPLOYMENT DISPUTES

 

ANONYMOUS QUESTION:
My wife is pregnant and our baby is due later this year. My employer is saying I am not entitled for parental leave because I muts be employed for 12 months to be eligible. I will be employed for 11 months and 16 days when our baby is due. What are my rights in this situation?

BRYDENS LAWYERS ANSWER:
Section 67 of the Fair Work Act provides than an employee is not entitled to parental leave unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that the leave is taken. Leave can be taken within 12 months after the birth of the child. If:
a) The employee has a spouse or de facto partner who is not an employee; and
b) The spouse or de facto partner has a responsibility for the care of the child for the period between the date of the birth of the child and the start date of the leave.
Therefore, you will need to continue working until you have completed 12 months of continuous service for your employer before being entitled to take parental leave.

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Due to the ever-changing nature of the pandemic, as well as the States operating on different timelines, it can be somewhat confusing to understand what you can and cannot do here in New South Wales. To assist in understanding the latest easing of restrictions,...

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