Conflicting Principles: A Medical Dilemma


Added on  2019-09-30

9 Pages2093 Words339 Views
Running Head: Health and lawHEALTH AND LAW
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Health and law2If Joseph and Cindy decided to sue Dr Lin, what type of legal action would that be? What are the elements of the offence that Joseph and Cindy need to prove for the action to be successful? What is the standard of proof required in this case? As it is rightly said that "No doctor knows everything, there's a reason why it's called ‘practising' medicine.' Doctors are seen as God, and people believe that they would be healed and cured of any disease but even the doctors do make mistakes which in cases cause a loss or damage to the patient. The legal action to be taken here is of Medical negligence which is also denoted as medical malpractice and is improper and negligent treatment by the doctor or healthcare professional (Griffith, 2017). It occurs when the proper standard of care is not recognised. It is one of the most unreasonable threatening practice and involves the foreseeing of an adverse risk involved.Negligence is the omission of doing something which should have been done by a reasonable and prudent man. In one of the famous case of King v. Philips [(1953) 1 QB 429], it was held that the negligence arises when there is a direct harm to the plaintiff and the injury was foreseeable, thus making damage an important part to bring negligence under the law of torts. A person claiming to sue in negligence must prove the three fundamental requirements namely that there was the legal duty to take care by the defendant, there has been a breach of legal obligation by the defendant and that the violation caused him damage (Chesterman, 2017). In the present case, Joseph and Cindy need to prove the elements mentioned above.The burden of proof is on the claimant to show that there has been a breach of duty on the part ofDoctor and also to show what is to be considered reasonable and to what extent has the conduct of doctor below this level (Kale, 2015).
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Health and law3Describe the defence that Dr Lin could raise. This includes describing the elements of a valid consent (with supporting case law and legislation), and the process for obtaining consent in those circumstances when an adult cannot provide it themselves.A doctor cannot be held liable in all the cases if the patient has suffered damage due to the operation, and now the burden of proof shifts to the doctor to prove that he has taken reasonable care and there has been no breach of duty. The errors can be classified into two broad categories as the error of judgment due to negligence or mere error of judgment. A mere error of judgment cannot be taken as the breach of duty to take care, but it occurs when a decision which has been made by a doctor and then it turns out to be wrong. A retrospective view is put forward in this regards to say that it was an error and at the time of making a decision it did not seem that something wrong might happen. The error of judgment occurred when due considerations of all the factors were not taken.As per the law, the consent is found to be a full defence pleaded in extreme situations. In cases where the claimant either impliedly or expressly accepts the risk associated with the treatment then his claim could easily be defeated by the defence of violent non-fit injuries as seen in case of Administrators of the Estate of Tan Ah Hock v. Low Beng Hai. Secondly, the doctor would not stand liable if it is shown that the claimant had full knowledge of the risk that is involved in the treatment and still agrees to assume the risk that later materialized.Here in the given case, the consent has been provided by Joseph regarding the proceeding of the operation since Sophie was not in a state to provide her consent. In conditions like the one mentioned in the case where Sophie has contracted forgetfulness in such situations, the decisionsare to be taken by her husband.
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