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What duty of care do medical professionals owe you?

May 22, 2019 11:01:00 AM

Medical Negligence, also known as medical malpractice, is the failure from a healthcare provider to treat a patient with reasonable skill and care, causing injury as a result. This includes GPs, dentists and specialists.

There are various considerations where the defendant is a medical professional. These considerations have been addressed under the Civil Liability Act (2002) (NSW) (“the Act”) pursuant to Section 5O, that 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.

The duty of care owed by a doctor to his or her patient is a broad duty and covers all the ways in which a doctor is called upon to exercise his or her skill and judgment, such as a duty to warn or advise of the risks involved with procedures a patient may undergo.

Rogers v Whitaker [1992] HCA 58 is the seminal case which is usually cited in most medical negligence cases. Rogers v Whitaker rejected the Bolam test of medical negligence in respect to the giving of information and obtaining consent to medical treatment.

In Rogers v Whitaker, the plaintiff underwent eye surgery on her right eye. She had been blind in that eye for many years, but her treating surgeon advised her that surgery could improve the appearance of the eye and probably her sight. The surgeon did not inform the plaintiff that the there was a 1:14000 risk of developing ‘sympathetic ophthalmia’. She developed this condition and was rendered totally blind. She sued Dr Rogers on this basis that he had been negligent in failing to provide her with the relevant medical advice and surgical risk. The High Court held that when a medical practitioner carries out a particular form of treatment, it is necessary that they have informed the patient of all the risks involved so that they can choose whether to proceed with the treatment or surgery. In that case, the scope of duty was said to be based on the patient’s view of whether the risk was material.

By contrast, pursuant to the Act, the standard of care by medical professionals is limited to what is seen as widely accepted by peer professionals as competent professional practice. The Act expressly states that this part of the act does not apply to the duty to warn of risk of death or injury.

To prove medical negligence has occurred, it must be shown that the treatment received fell below the standard of care and skill that a reasonable professional would have provided in the same circumstances.

If you have further questions please contact Nathanael Coles at ncoles@franklaw.com.au

This is not legal advice. 

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Nathanael Coles

Written by Nathanael Coles