Understanding Medical Negligence Law in Australia

This article provides an overview of medical negligence law in Australia. It explains the duty of care owed by medical practitioners, the elements required to prove medical negligence, and the compensation awarded for harm caused. The article also discusses relevant case studies and examines the effectiveness of negligence law in improving patient welfare.

Health Law

Table of Contents
Introduction...........................................................................................................................................2
Main context..........................................................................................................................................2
Conclusion.............................................................................................................................................6
References.............................................................................................................................................7
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Introduction
The Australian medical practitioners owe a duty of reasonable care towards their patients. If
any harm is caused to the patient due to an act or omission and the risk was foreseeable, the
person providing medical treatment is liable for medical negligence. Medical malpractice is
said to have occurred when an act or omission of any doctor or health care professional
causes an injury to the patient. The negligence may result from an error in treatment,
diagnosis, or health management. A claim for compensation can be made within three years if
an injury is caused by negligence. The compensation awarded in case of the medical
negligence depends on the severity of the particular case. In Australia, the law of the medical
negligence can be traced in the written case laws as well as in the legislation.
Main context
The basic requirement of the law of negligence
In order to support a case of medical negligence the patient should prove the existence of a
doctor-patient relationship, that the doctor owed the duty of care towards the patient, that the
doctor has breached his duty by an omission or act, that such act or omission have caused
harm to the patient. The law has recognized the fact that every doctor owes a reasonable duty
towards his patients' as the patient is dependent on the doctor for physical and mental
wellbeing. The doctor should take reasonable care for avoiding any act or omission that may
cause injury or harm to the patient. It is being found that the doctor was not able to take such
reasonable care and as a result of which harm or injury caused to patient and the doctor is
liable for negligence (Burrell and McGinn, 2009). If the act of the doctor is grossly negligent the
doctor can be considered as the liable for criminal negligence or manslaughter. In
determining the breach of the duty of care the court should take into account the standard of
care that is reasonably expected from an individual in the medical profession. The doctors
must exercise the reasonable skill and diligence that is expected from an individual in the
medical profession under the questioned circumstances. To help the court in deciding
particular case expert witness can be summoned to give an opinion regarding whether the
action of the doctor was reasonable or not.
It is impossible to set a particular standard of care that will fit in every case, so it is
considered that every case must be decided on its merit. In the case of medical negligence,
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the defense can state that the professional act adopted by the doctor is a competent
professional practice in Australia. However, an exception to the defense is that the treatment
was unreasonable. If the treatment, diagnosis or health management is below the standard as
expected from a health care professional, the health care professional is said to have
conducted a breach of duty of care (Hansen, 2015). The plaintiff order to claim damages must
show that such negligence has caused harm or injury to the patient. The harm or injury is
caused by an act or omission. If no harm is caused due to such negligence of the doctor, no
damages can be claimed by the plaintiff. The compensation amount is granted to the patient
only when the plaintiff is successful in establishing a case of negligence. Damages in case of
negligence can be awarded in the form of medical expenses, cost of domestic assistance and
care, loss of income and general damages. A patient suffers physical and mental harm due to
medical negligence. The patient is entitled to compensation for the loss and sufferings caused
to him. The patient may incur debt for sustained harm or injury. The compensation amount is
calculated by specifically keeping in mind the loss incurred by the plaintiff.
The doctors and healthcare workers have indemnity insurance for covering this law. Medical
negligence may result in a civil action by the plaintiff or criminal prosecution by the state.
Successful civil action will bring monetary compensation to the plaintiff and successful
criminal prosecution will result in a custodial sentence for the doctor (Harvey, 2009).
Adherence to the accepted standard of practice will reduce the injury caused by medical
negligence. Many claims for medical negligence fail as the plaintiff could not establish the
causation. However, it can be proved that the breach is responsible for the damage. The
principle of ‘res ipsa loquitur’ applies to the cases of medical negligence. As for example if a
swab is found in the abdomen it can be assumed that the swab was left negligently during a
previous laparotomy.
Standard of care to be taken
The doctors are expected to take such degree of care as is expected from a prudent man in the
health care profession. In case the doctors fail to take such degree of care and due to which an
injury is caused to the plaintiff, the doctor will be liable for medical negligence. In order to
claim damages, the plaintiff should depict that such negligence has caused injury or harm to
the patient (Kirton and Madunic, 2009). In determining the breach of the duty of care the court
should take into account the standard of care that is reasonably expected from a person in the
health care profession. To help the court in deciding a particular case expert witness can be
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summoned to give an opinion regarding whether the action of the doctor was reasonable or
not.
Cases
Rogers v Whitaker
In this case, the plaintiff had an injury in her right eye. An ophthalmic surgeon advised her to
operate but despite performing the operation with care, the operation was not successful.
After the operation, she developed sympathetic ophthalmia and she lost sight of the left eye
also. In this case, the question arose was whether the doctor took reasonable care in
informing about the risk post operation. The court held that the doctor must have given a
prior warning to the patient before the operation (Parker, 2011). A person is entitled to take an
informed decision about her life. It is the duty of the doctor to inform the patient regarding
the material risk associated with the treatment. A risk is considered material is another person
in the patient position would have attached significance to it. It is normal for a person to be
concerned about the injury in the eye, with one good eye. The doctor was under a
responsibility to disclose all possible risk associated with the surgery to an unusually nervous,
disturbed or volatile patient.
Wallace v Kam
In this particular case, the patient was not warned about the risk associated with the
treatment. Neurapraxia can be caused by lying face down in the operating table for a long
period. In many cases, it may also result in catastrophic paralysis. In this particular case, the
patient suffered neurapraxia. In this case, it was argued that the doctor is liable for not
disclosing material risks (Richards, Ludlow and Gibson, 2009). If the doctor would have
informed him about the risk of paralysis he would not have undergone the surgery. The court
held that the patient must have regarded the risk of neurapraxia acceptable. The doctor could
not be held liable for the materialization of risk, which the patient himself has agreed to
undertake.
Harriton v Stephens
In this particular case, the plaintiff is disabled as a result of rubella. The plaintiff claimed
against the doctor, that the doctor is unable to diagnose the condition. Her mother would have
terminated the pregnancy if she had sufficient information about her unborn child. The claim
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of wrongful life of the plaintiff was dismissed. The verdict stirred a good deal of controversy.
The decision of the high court was logical in this regard (Solicitor Advice, 2018).
Medical negligence has contributed to the development of general law relating to negligence.
The law of medical negligence needs to be responsive to the development of scientific
technology. To prove medical malpractice in Australia three elements needs to be proved,
that the treatment does not meet Australian standards, the treatment has resulted in injury or
suffering and the harm is a direct outcome of the negligence.
How effective is negligence law in fulfilling the policy goal of enhancing patient welfare
Medical liability has reduced medical errors and has increased the quality of health care
treatment. Treatment quality will improve when physicians will adhere to higher quality
clinical standards. The liability so imposed will curb the injustice and make provision for
compensation to the victims. The liability is to prevent the wrongdoer from committing
errors. Liability plays an important role in deterrence. Doctors are liable under the medical
malpractice act when their action fails for complying with the expected standard of care. The
medical malpractice law is successful in improving the quality of physician practice
(Legislation, 2015). When the clinical standards have altered the quality of the physician care is
also affected. The significant liability reform has imposed the burden of a national standard
of care on the physicians. The traditional approach is of view that the impact of reform does
not affect the standards against which a physician is judged but has reduced the expected
damages considerable. The physicians’ clinical decisions including decisions regarding
treatment are shaped by a large number of forces. The liability system will compel the
physician to follow the expected standards inherent to the system. The impact of the liability
reform has to be accessed in terms of sensitivity of the physician practices, quality delivered
and standard of care expected from the physician. The impact of liability system in physician
behavior is understood by the physician response to the expected standards imposed by the
system. The acquired disability during hospitalization increases the cost of treatment and
imposes an additional burden on the patient.
A medication error is the most common cause of patient injury. Medication error includes the
wrong dose of drug, wrong way of administration and wrong time. Certain penalty reducing
reform has been introduced in the traditional malpractice liability act. Such reforms diminish
the penalty without altering the basis for liability. This reduction in penalty is encouraging a
higher level of care by deterring medical malpractices. The adoption of damage cap has
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meaningfully reduced the expected harm upon the physician (McGlone and Stickley, 2009).
Doctors are expected to provide treatments with the skill and knowledge at their command.
Though a doctor cannot be always available to save a patients' life he is expected for using
special knowledge to avoid negligence and careless mistakes that can cause harm to patient.
A doctor is expected to carry out necessary investigations and obtain the consent of the
patient before carrying out any operation. Failure on the part of the doctor to carry out this
obligation is the tortious liability. It is a civil right of the patient to receive medical care from
doctors. The breach of duty of care is a cause of action for the negligence and the patient is
entitled for recovering damages from the doctor. A doctor who has no knowledge particular
system of medicine but the practices one is guilty of negligence. It is a duty on the part of the
doctor to take prior consent from the patient before treatment (Thomas, 2010). In case the
patient is a minor or otherwise incapacitated from giving consent, consent is to be obtained
from the legal guardian of such patient.
Conclusion
Australian negligence law has enhanced patient welfare. The doctors have become more
responsible towards the patients, as the negligence law will otherwise impose a penalty on the
doctors. In order to prove medical negligence the patient has to prove that the treatment has
not been done as per the prescribed standard, an injury or suffering has been caused by the
treatment and the injury so caused which is a direct outcome of the negligence.
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References
Burrell, D. and McGinn, J. (2009). Cornerstone law series. 4th ed. [Adelaide]: Law Society
of South Australia.
Hansen, R. (2015). Be warned: medical negligence - Civil Liberties Australia. [online] Civil
Liberties Australia. Available at: https://www.cla.asn.au/News/be-warned-medical-
negligence/ [Accessed 30 Apr. 2019].
Harvey, C. (2009). Cornerstones of Australian law. 4th ed. Prahran, Vic.: Tilde University
Press.
Kirton, J. and Madunic, J. (2009). Global law. 4th ed. Farnham, Surrey, England: Ashgate.
Legislation (2015). Law of Negligence and Limitation of Liability Act 2008 (NI). [online]
Legislation.gov.au. Available at: https://www.legislation.gov.au/Details/C2016Q00058
[Accessed 30 Apr. 2019].
McGlone, F. and Stickley, A. (2009). Australian torts law. 5th ed. Chatswood, N.S.W.:
LexisNexis Butterworths.
Parker, M. (2011). Reforming The Law Of Medical Negligence:Solutions. [online]
www.researchgate.net. Available at:
https://www.researchgate.net/publication/43444734_Reforming_the_law_of_medical_neglig
ence_Solutions_in_search_of_a_problem [Accessed 30 Apr. 2019].
Richards, B., Ludlow, K. and Gibson, A. (2009). Tort law in principle. 4th ed. Sydney:
Lawbook Co.
Solicitor Advice (2018). Medical Negligence Law in Australia | Legal Requirements. [online]
Solicitoradvice.com. Available at: https://www.solicitoradvice.com/medicalnegligence.htm
[Accessed 30 Apr. 2019].
Thomas, G. (2010). Cornerstone law series. 4th ed. [Adelaide]: Law Society of South
Australia.
Thomas, G. (2010). Cornerstone law series. 4th ed. [Adelaide]: Law Society of South
Australia.
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