Negligence Law and Medical Malpractice

This assignment delves into the concept of negligence law, specifically within the context of medical malpractice. It presents a case study where a doctor prescribes penicillin to a patient who has explicitly stated an allergy, resulting in harm. Students are tasked with analyzing the facts, applying legal principles of negligence, and determining if the doctor's actions constitute negligence. The analysis should consider elements like duty of care, breach of duty, causation, and damages. The assignment concludes by emphasizing the importance of due care in medical practice and the role of law in protecting patients.

Negligence - Problem
question (Enterprise Law
subject)

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
Main body........................................................................................................................................1
CONCLUSION................................................................................................................................4
REFERENCES................................................................................................................................5

INTRODUCTION
Negligence law of Australia provides protection to parties which were injured by the
negligence on the part of defendant. Present report deals with case study of Mary who is plaintiff
and Joyce who is a doctor and defendant. Thus, the report highlights rights of injured party and
how it can sue case on person who has caused harm. Various principles of law of negligence in
the context of Australia are discussed.
Main body
Law of negligence is one of the important law of Australia. It provides protection to the
plaintiff when any incident has happened and defendant is liable for the same. The law provides
certain rights of plaintiff and liabilities of defendant when giving services in any business. Case
study highlights Mary who is a matured university student nodded off to sleep on one of the
booked seats of other students. These college students were Charlotte and Louise and she woke
up hearing announcement of train at Parramatta Station and jerked to get off the train. In this
event, she falls over Charlotte’s bag and landed over mouth injury (Barry, 2017).
Moreover, Mary was admitted to hospital to fight with her injury and doctor asked
whether she is allergic to any of the drugs. Mary told that she was allergic to penicillin. But the
attending doctor was engaged over other things and did not notice what student had told to him.
This negligence of Joyce (doctor) has caused health problems such as dizziness, breathing
problem and cramps in stomach. This was happened to her as she was prescribed with drug
containing penicillin in it which caused serious allergic reactions to her. On the basis of this, law
of negligence can be highlighted to provide patients due care from doctors. The basic law
problem is enumerated as below and Mary has to prove following three elements to establish the
liability to Joyce-
Duty of care
Plaintiff is required to give full protection by the defendant while giving services. In the
case study, defendant is Joyce who without considering allergic reaction of penicillin prescribed
the drug to Mary who is plaintiff and as such, Mary can sue Joyce for claiming compensation for
health problems she had faced because of negligence of doctor. Duty of care means that in order
to establish defendant who owes a duty of care to injured party must show reasonably
foreseeable that failure to provide due care to plaintiff may cause harm to her quite adversely
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(Smith and Carver, 2018). This is evident from the fact that Joyce owes duty of care to plaintiff
as he neglected the fact that prescribing penicillin would make Mary unwell and it was
reasonably foreseeable as she had already told regarding her allergy. This ensures that Joyce
owes duty of care to Mary and as such, liability arises to provide compensation to injured party.
The law of negligence as described in Australian Law also provides protection to plaintiff
in injuries or harm which may cause due to negligence of person who owes a duty of care and is
purely responsible if any damage is made to plaintiff in any manner. Law of negligence and
limitation of liability Act, 2008 has been enforced and giving protection to the injured party. The
definition of negligence given under law is any failure to exercise reasonable care (Law of
negligence and limitation of liability Act 2008). Moreover, there are various principles described
in the Act related to duty of care, they are:-
Division 2 – Duty of care
1. Person is not negligent in taking precautions unless-
A) Risk was not unforeseeable
B) Risk was not insignificant
C) In situations, person was appointed for providing reasonable care and would have taken stated
precautions
2. in relation to above things, court is to consider whether reasonable person had taken
precautions against risk of harm-
A) Probability that harm can occur if due care is not provided
B) Likely cause of seriousness of harm
C) Burden to take precautions to avoid risk
D) Social factors that creates risk
Moreover, there is the duty to warn of risk to plaintiff. Defendant is required to provide clear
facts about to warn other person and musty satisfy obliged duty of care (Thomas and et.al, 2018).
This is evident from the above principles stated in Australia's Law of negligence and limitation
of liability Act, 2008 that defendant has to perform duty of care as he owes the same to plaintiff
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and should state risk associated with giving services and as such, Court may provide fair
judgement to either plaintiff or defendant who is among fault.
Breach of Duty
The breach of duty prevails in the current scenario as plaintiff had become ill because of
negligence made by defendant. Joyce has made breach of duty in case of this incident. This is
evident from the fact that this aspect is satisfied as it was reasonably foreseeable that harm would
be caused to plaintiff. Thus, precautions would have been taken by Joyce as Mary had allergic
problem with penicillin drug. This fact was required to be obliged by defendant in order to avoid
risk of harm in the best possible way. If this aspect would have been considered by doctor, then
no liability could have been raised in this scenario and Joyce was out of paying any
compensation to injured party. But in reality, doctor got engaged in looking after other patients
and completely neglected the point that such drug would cause serious effect on health of
plaintiff.
This is cleared by this fact that there was a breach of duty by Joyce and it is reasonable to
establish liability case for negligence (Hafeez-Baig and English, 2017). Mary could claim
compensation from the Joyce as she had suffered from severe health problems quite adversely.
The type of tort in this case study is negligence which defendant fails to exercise reasonable and
due care to another party and caused damage to her. The earlier part of negligence is not
conclusive evidence to prove that liability occurs in defendant’s part. However, breach of duty
clarifies whether harm has been made by defendant to plaintiff or not and this aspect eases to
make decision by the Court in the best possible way. Thus, it can be said that Mary should have
been prescribed with medication which would not involve use of penicillin and as a result, Joyce
would not be held liable for the case in any manner.
Damage
This is the last stage which clarifies what damage has been made to plaintiff on due
negligence of defendant. Case study highlights that when Mary had given medication by doctor,
she took first dose of the same. Furthermore, she was landed into problem as medicine was not
penicillin free and allergic reactions took place (Porter, 2017). In this manner, it is cleared that
she was immediately admitted to the hospital and as such, severe health problem such as
dizziness, breathe problem and stomach cramps were started because of the negligence made by
Joyce.
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There were severe problems to plaintiff and this implies that Joyce could be held to pay
compensation to Mary as her health was gone bad and thus, liability can be establish over doctor
for prescribing wrong drug despite of the fact that injured person had beforehand clarified that
some allergic reactions would evolve on taking such prescription.
Defendant’s general defences
The law of negligence also gives certain rights to defendant in order to make clear that
harm is not being made by him. These defences are-
Assumption of risk-
This involves any obvious or inherent risk such as risk that Mary became ill because of
negligence on part of Joyce but it could be assumed whether solely Joyce was liable or not.
Intoxication-
This defence does not apply to Joyce as he owes duty of care and has caused harm to
plaintiff as she became ill and was admitted in the hospital (Cains, Lilly and Doggett, 2018).
Contributory negligence-
This implies that whether doctor was partly held liable for the situation or not. This also
cannot be apply to this context as Joyce was responsible for causing damage to Mary.
The above discussed general defences do not apply to the problem cited in the case study.
This is evident from the fact that Mary had already told doctor that she has allergy from
penicillin and as such, she explained her part properly. But this was not followed by the
defendant and eventually, he prescribed medicine which caused serious problem to plaintiff.
Thus, it can be said that plaintiff has the right to sue case of negligence to Joyce as he did not
focus on such fact. Thus, Mary could establish negligence case on Joyce and could claim
compensation.
CONCLUSION
Hereby it can be concluded that negligence should not be made by person as it may harm
other party who is availing the same. This is required in order to provide protection to plaintiff.
The law of negligence comes under the picture and imparts protection in effective manner to
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injured party. Mainly, doctor must provide due care to other party so that no health related harm
should be made and patient may be treated nicely.
REFERENCES
Books and Journals
Barry, C., 2017. Statutory modifications of contributory negligence at common law. Precedent
(Sydney, NSW). (140). p.12.
Cains, T., Lilly, D. G. and Doggett, S. L., 2018. Bed Bugs and the Law in Australia. Advances in
the Biology and Management of Modern Bed Bugs, p.403.
Hafeez-Baig, M. J. and English, J., 2017. Re-thinking the Requirement for a" Recognisable
Psychiatric Illness" in the Law of Negligence. Tort Law Review. 25(2). pp.92-99.
Porter, D., 2017. Law and ethics in complementary medicine-a handbook for practitioners in
Australia and New Zealand [Book Review]. Australian Journal of Acupuncture and
Chinese Medicine. 11(1). p.31.
Smith, M. K. and Carver, T., 2018. Montgomery, informed consent and causation of harm:
lessons from Australia or a uniquely English approach to patient autonomy?. Journal of
medical ethics. pp.medethics-2017.
Thomas, L. A and et.al, 2018. Health, performance and conduct concerns among older doctors:
A retrospective cohort study of notifications received by medical regulators in
Australia. Journal of Patient Safety and Risk Management. p.2516043518763181.
Online
Law of negligence and limitation of liability Act 2008, 2016[Online] Available Through:
<https://www.legislation.gov.au/Details/C2016Q00058>
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