TO WHAT EXTENT DOCTORS CAN BE HELD RESPONSIBLE FOR THEIR PROFESSIONAL NEGLIGENCE ADVICE OR DEFAULT IN GIVING THE RIGHT ADVICE?
When it comes to the cases of negligence on the part of a medical professional such as a doctor, the basic elements of duty of care and foreseeability of risk are unlikely to be different when considering whether the doctor has breached his/her duty causing the plaintiff to suffer loss.
Request Free ConsultationAn example of this is when the doctor has a duty to inform the patient of the foreseeable risk but fails to do so. Nevertheless, in considering the issues here one cannot discount the question of causation, and that question is not answered in a legal vacuum but in the legal framework in which it arises. The case in point is Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998). In that case, the plaintiff underwent surgery at the hands of the defendant without warning as to the possible consequences should her esophagus be perforated and infection set in. That is what happened and, in consequence, the plaintiff suffered damage to her laryngeal nerves, paralysis of her right vocal cord, and voice loss.
The defendant contended that there was no causal connection between his failure to give adequate warning of the risks involved in the surgery and the damage suffered by the plaintiff. The contention was made in a context in which it is clear that the surgery was performed with skill and care and the infection which set in and led to the injuries which the plaintiff sustained was a random event that might occur no matter when and by whom the surgery was performed. The court disagreed.
The fact that the defendant was under a duty to inform the plaintiff of the possible consequences in the event of the perforation of her esophagus and subsequent infection, including the possibility of damage to her voice, was not disputed. The duty was called into existence because of the foreseeability of that very risk. The court also rejected the defendant’s contention that the degree of risk- as distinct from the nature of the risk- was the same regardless of the experience of the surgeon concerned.
Nevertheless, in the author’s view, in considering the professional negligence claim and the causation question, the following can be of assistance:
⮚ Proof of a cause of action in negligence or contract requires the plaintiff to prove that the breach of duty by the defendant caused the particular damage that the plaintiff suffered;
⮚ In civil cases, causation theory operates on the hypothesis that the defendant has breached a duty owed to the plaintiff and that the plaintiff has suffered injury;
⮚ Causation theory insists that the plaintiff prove that the injury is relevantly connected to the breach of duty; and
⮚ The existence of the relevant causal connection is determined according to common sense ideas and not according to philosophical or scientific theories of causation.
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2016/4.html?context=1;query=Abu-Mahmoud%20v%20Consolidated%20Lawyers%20;mask_path=
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1998/55.html?context=1;query=chappel%20v%20hart;mask_path=
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