MEDICINE AS NEGLIGENCE: BREACH (treatment and diagnosis)

What are the known categories of breach?

TOADFICH

1. Failure to take medical history (note: this duty extends to revising notes, checking on progress).

2. Causing injury to P during surgery.

3. Errors in treatment.

4. Administering too much of a drug.

5. Failure to remove a foreign object.

6. Errors in diagnosis.

7. Failure to follow up.

8. Failure to counsel P who might be seriously ill.

9. Failure to advise of a material risk.

What is breach generally?

When a doctor falls below the expected standard of an ordinary skilled man exercising or professing to have that skill.

Chin Keow v Government of Malaysia (Failure to take medical history).

Facts: woman spoked to staff member about her swollen glands, who took her to a doctor. They gave her a penicillin injection and she died.

Held: it is "axiomatic" that D takes medical history. Failure to do so is negligence.

Giurelli v Girgus (1980) (Failure to take medical history).

Facts: P consulted surgeon about broken leg. D placed a plate in leg and referred P to physio. Staff asked him to stand up. He refused, they asked again. His leg split into 4 pieces.

Held: D negligent, must take ongoing medical history.

Locher and Another (1994) (Failure to take medical history).

Facts: P had rectal bleeding. GP failed to listen and order further tests. At the date of trial, had 12 months to live.

Held: D negligent, taking the tests would have led to earlier diagnosis.

Paton v Parker (1941) CLR 187 (Causing injury to P during surgery).

Facts: anaesthetic used to be administered in the form of a drip. P went in for surgery, asked to turn on radiator. Anaesthetic fell over and vaporised, P severely burned.

Held: D negligent, a higher duty of care was owed because P was sedated.

Geissman v O'Keefe (1994) Unreported (Errors in Treatment).

Facts: P broke ankle, placed in cast. It became red, hot and angry looking. Given anti-biotic which was ineffective.

Held: D negligent.

Strengways Lesmer v Clayton (1936) (administering too much of a drug).

Facts: D misread dosage instructions, administered too much of a drug.

Held: D negligent.

Jones v Manchester (1952) 2 QB 852 (administering too much of a drug).

Facts: newly qualified doctor was allowed to administer drug. Had no knowledge of the drug and was not properly supervised. She administered too much of the anaesthetic. P died.

Held: D negligent.

When determining whether there has been an error in treatment, what will the courts look at?

They will look to see whether the plaintiff has an underlying condition, which might be made worse, should sufficient care not be taken (i.e. Markaboui v Western Sydney Health).

Markaboui v Western Sydney Health [2005] NSWSC (administering too much of a drug).

Facts: woman admitted to hospital for fractures. Given inadequate doses of opiate. She had underlying condition which led her to develop pneumonia and be put in intensive care.

Held: D negligent.

Will every error in treatment be actionable?

No, only when the doctor falls below the standard of a reasonably competent medical practitioner.

Hancock v State of QLD (Errors in treatment).

Facts: P decided to undergo sterilisation procedure. The sterilisation failed, issue was whether D fell below the standard of an ordinary medical practitioner.

Held: D not negligent, the fact that a procedure fails does not itself disclose whether the doctor exercised reasonable care and skill.

Wighton v Arnot (2005) (when a doctor does not inform the patient that additional damage has occurred, denying them effective treatment).

Facts: P had lump on neck. D operated. In the scope of operation, D severed nerve. P said she was not informed and that by the time she found out, she had lost the opportunity to get efficacious treatment.

Held: D negligent, he should have informed P so that she could get efficacious treatment.

Mahon v Osbourne (1939) (failure to remove foreign object).

Facts: P had stomach ulcer, they opened up his stomach. P had poor tolerance to anaesthetic, so overexposure could lead to death. D used yellow flags, blackboard to count, and weighed swabs to judge blood loss. D checked for any left over swabs, but could not find any. There was one remaining, P became septic and died.

Held: reasonable care had been given. These were exceptional circumstances, P was struggling with the anaesthetic and they had taken precautions to count.

Chasney v Anderson (1950).

Facts: child getting tonsils out, choked on sponge which was left at the base of the nostril. Surgeon did not tape the sponges, no nurse was employed to count. He asked assistant if he had them all, and she said one was missing. He felt around and couldn't find it.

Held: negligent.

If Mahon v Osbourne was the exception, what are the other cases where D has been liable for failing to remove a foreign object?

Drainage pipe (Hocking v Bell), faucet (Gloring v Miller), surgical plugging (Dryden).

Are errors in diagnosis actionable?

The failure of a doctor to diagnose is not actionable per se. The patient must also prove loss (had the doctor properly diagnosed, would have been able to obtain treatment and the situation would not have happened).

Barnett v Chelsea (Errors in diagnosis).

Facts: night watchmen stopped for tea. They started to feel unwell, went to doctor. Nurse was concerned and rang D. He was tired, told them to go away. Overnight, they died of arsenic poisoning.

Held: D owed duty and it was a grievous breach. However, tests showed that the level of arsenic was such that he would have died anyway, so they did not cause any additional damage.

Stacey v Chiddy (1983) 4 MLR [345] (Errors in diagnosis).

Facts: woman went to GP. D failed to properly examine her breasts and give her proper advice.

Held: D not negligent. The malignant cancers were unrelated to the presence of earlier cysts which could have been detected by a competent GP.

Smith v Lennard (1994) Unreported (Errors in diagnosis).

Facts: doctor failed to order an endoscopy.

Held: D not negligent. Even if an endoscopy was ordered, it was unlikely that it would have detected the cancer.

Wood v QML Unreported (1994) (Errors in diagnosis).

Facts: P found mole on back. Went to D who took a sample, sent to QML. It turned out to be melanoma.

Held: D liable. Had an original test been done, the prospects of survival would have been much greater.

O'Shea v Sullivan (1994) (Errors in diagnosis).

Facts: P reported bleeding after sex, went to doctor to get a pap smear. D reported it as a false negative. She had cervical cancer.

Held: both doctor and D were negligent. Doctor should have ordered her to a specialist because she had clear symptoms.

Stairmand v Baker (Errors in diagnosis).

Facts: misdiagnosis of breast cancer, would have lived an extra 7 years if properly diagnosed and could have avoided chemo.

Held: D liable.

Flinders Medical Centre v Waller (Errors in diagnosis).

Facts: P had tumour on spine.

Held: D liable. By the time it was detected, it could no longer be treated. It was a loss of opportunity case.

Kite v Malycha (1998) (Failure to follow up).

Facts: P had lump on breast, took test which was sent off for analysis. The sample was sent back to D who shared a receptionist with other doctors. Result was that he did not review it. She had breast cancer.

Held: D negligent. It is unreasonable for a doctor to base his whole follow up system, which can mean the difference between death and cure, on the patient taking the next step.

Tai v Hatzistavrou (1999) NSWCA 306 (Failure to follow up).

Facts: D had rooms opposite a hospital. Gave referral to P to walk across the road. P did and didn't hear from them, assumed delays. D said she failed to cross the road. On the eve of the trial, they found the form at the hospital. She had serious cancer.

Held: D liable. When a doctor suspects a patient of having a serious health problem, they have a continuing duty to advise the patient to submit to the procedure. The doctor should have ensured that the patient was correctly entered onto the surgical list.

Alexander v Heise [2001] NSWSC 69 (Failure to properly train reception staff to detect and prioritise patients).

Facts: P sought an appointment for her husband. The husband had never been to those doctors before. The wife told the receptionist without any form of urgency that she was worried about her husband, who had a severe headache. Receptionist did not see the matter as urgent, and made an appointment for a week later. The husband collapsed and died.

Held: once the husband's symptoms were described to the receptionist, the doctor and receptionist owed him a duty of care.

All doctors have a duty to determine whether a patient requires urgent treatment and then to ensure that they are prioritised.

Receptionists have a duty to ensure that patients requiring urgent treatment are seen in a timely manner, and if the doctor is unavailable then to refer them to a hospital.

However, the claim failed on breach. The doctor had protocols in place, and a reasonable person in the receptionist's position would not have had their index of concern raised.

Wang v Central Sydney Health (Failure to counsel P who might be seriously ill).

Facts: P was assaulted walking home from work. His friends took him to hospital. After waiting for a long time, decided to go to superclinics. Doctor referred him to scan at hospital. Doctor said he could go home, but if he felt any worse to call an ambulance. He became violently ill and got brain damage.

Held: hospital was liable. They had a duty to counsel him on the risk of leaving, as they suspected it was something serious.

What if the facts do not fall into one of the categories?

The calculus of negligence (prob of harm occurring + magnitude = cost of avoiding risk + social utility).