Harvey Teff's Conceptions of Medicine

Harvey Teff's Conceptions of Medicine

• Medicine viewed as a trade pertains breaches of contract.
• Medicine viewed as an intrusion into personal autonomy concerns battery.
• Medicine viewed as a therapeutic alliance relates to negligence actions.

Contract Conception of Medicine Application

• Applies where there is a private doctor-patient relationship.
• No privity of contract exists between doctor and patient in a public hospital, as per Cattanach v Melchior.

Requirements for a Contract Action

• Requires an offer and acceptance.
• Consideration is needed.
• An intention to be legally bound is necessary.

Picard on the Contractual Relationship

• A patient's request for treatment equates to an offer.
• A doctor's provision of treatment constitutes acceptance.
• A promise to treat in exchange for payment is the consideration.

Lord Templeman in Sidaway on the Contractual Relationship

• The relationship between doctor and patient is contractual in origin.
• The doctor provides services in exchange for fees paid by the patient.

Medicare's Alteration of Contractual Services

• Medicare has not altered the contractual services between doctor and patient.
• There are two separate contracts: one between doctor and patient, and one between doctor and the Commonwealth.

Reconciling the Consideration Concept

• Coggs v Bernard (1703) and Bambury v Bank of Montreal (1918) state a patient submitting themselves for treatment is good consideration.
• By submitting themselves, they give up a legal right such as the the right not to be touched.

Seeking Relief for Breach of Contract

• A patient typically sues on an implied term if seeking relief.
• Express terms are hardly present in a doctor-patient relationship.

Implied Terms in Doctor-Patient Contracts

• The doctor will act with reasonable skill and care.
• The doctor would effect a cure to the medical issue.

Eyre v Measday (1986) Facts and Holding

• A woman had a sterilisation procedure but became pregnant due to a 1% risk not being disclosed.
• She sued the doctor for breach of contract.
• A reasonable bystander would imply a term that the operation would be conducted with reasonable care and skill.
• The court should be slow to imply any promise due to the absence of an express warranty.

Principle from Eyre v Measday (1986)

• Absent express warranty from a Doctor, the court is slow to imply an unqualified warranty as to the results of an intended operation.
• A court will imply a term that the operation be performed with reasonable care and skill.

Thake v Maurice (1986) Facts and Holding

• A man had a vasectomy without being warned about the possibility of recanalization.
• His wife became pregnant and he sued in contract.
• The court agreed with Eyre.
• The law does not require a warranty that the desired result will be achieved, but that reasonable care be used.
• To make out a guarantee or warranty in relation to a medical operation or treatment, the Doctor must use clear and unequivocal terms.

Principle in Thake v Maurice (1986)

• Due to the inexactness of medical science and the nature of reasonable skill and care, a warranty to achieve a desired result by a professional sits uneasily.
• A warranty required clear and unequivocal terms.

Disadvantages of Suing Under Contract

• Involves problems with implied terms, refer to Eyre v Measday and Thake.
• Damages are assessed by putting.

Advantage of Suing Under Contract

• The limitation period for breach of contract is 6 years as per s 10 LAA.
• In tort for personal injury, it is 3 years as per s 11 LAA.

Elements of an Action in Battery

• The act must be direct.
• The act must be a positive act.
• Contact must be made.
• Intentional/ negligent.
• Without lawful justification i.e consent

What Constitutes 'Direct' in a Battery Claim

• No intervening act.
• No timeframe between tortfeasor and victim.
• The longer the break, the more interventions, the law indicates indirect.

What Constitutes a 'Positive Act' in a Battery Claim

• Interacting with another person, positively going forward.
• Distinguished from mere obstruction.

What Constitutes 'Intentional' in a Battery Claim

• Someone has done a voluntary act with intent to make contact.
• cf intent to be hostile.

Perry Principle

• It was not an intentional act as it was not voluntary.

What Constitutes 'Contact' in a Battery Claim

• Touching directly (skin on skin) or by an implement (throwing a ball, using a scalpel on patient).
• Do not need knowledge at the time of it (i.e., can be asleep, unconscious).
• Does not need to be hostile.
• Beyond exigencies of everyday life (i.e., getting on and off the bus).

Barnett v Chelsea Facts and Holding

• Men got ill and went to hospital.
• The doctor on call would not come to see them, suspecting food poisoning.
• Overnight, one of the men died, turned out to be arsenic poisoning.
• Hospital breached their DoC, however failed for causation.
• if he had even used the appropriate antidote, the poisoning was too far gone.

Defence to Battery

• Valid consent.

Elements of a Valid Consent to Treatment (Per Jones)

• Volition: decision to consent must be a free one.
• Information: patient must have information about the procedure explained to them.
• Capacity: patient must be of sufficient age and intelligence to be able to consent (i.e., competence).

Beausoleil v Sisters of Charity (1964) Facts and Holding

• Prior to operation, woman discussed with surgeon she wanted general anaesthetic, not spinal anaesthetic.
• She was berated into consent, and only after sedation.
• She was paralysed from wait down and sued.
• Issue if consent was given.
• Did not give free consent as indicated preference several times.

Principle in Beausoleil v Sisters of Charity (1964)

• A person's consent must be given of their own free volition.
• They cannot be berated into consenting, especially when sedated or effected by other substances.

Freeman (1984) Facts and Holding

• Prisoner claimed he was held down and compulsorily given an injection without consent.
• Prisoner argued that he was a vulnerable person by virtue of being a prisoner and thus can't give consent.
• Not enough to just be vulnerable.
• Need to prove that your will was overborn and your consent was not given freely.

Principle in Freeman (1984)

• To not give free consent, it needs to be proven that someone's will was overborn.
• Mere vulnerability is not enough.

Chatterton v Gerson (1981) Facts and Holding

• Woman advised to have procedure to block pain receptors without being warned that pain could get worse.
• Claimed did not inform of risk, thus no relevant info to make up her mind- thus, no informed consent.
• Distinction between information in battery.
• Once a patient is informed in broad terms of the nature of the procedure, and consent is given, that consent is real and no action in battery will lie.

Principle in Chatterton v Gerson (1981)

• Once a patient is informed in broad terms of the nature of the procedure, and gives consent to it, no action in battery will lie; allegations about a failure to advise of the risks or side effects go to questions of negligence instead.
• Confirmed in Rogers v Whitaker.

What Constitutes the 'Nature of the Procedure'

• The nature of the procedure is what broadly the procedure will be.
• In very rare cases, courts have been willing to consider that if the procedure is so materially different to what the patient thought they were receiving, they have not consented to that materially different procedure.
• Case: D v S.

D v S Facts and Holding

• Woman agreed to plastic surgery operation.
• She woke up to find she was in terrible pain, nipples unevenly aligned, terrible scarring and sores weeping.
• Court prepared to entertain that because what she had undergone was so different to what she thought she was receiving, changed the 'nature of the procedure' and thus she did not consent (thus a claim in Battery, not necessarily liability in negligence).

Exceptions to a Battery Claim

• Informed consent.
• Emergency exception: Marshall v Curry; Murray v McMurchy cf Malette v Shulman.
• Statutory exceptions: Qumsieh v Guardianship Board.

Marshall v Curry (1933) Facts and Holding

• Patient was being operated on to repair a hernia.
• Whilst operating, they discovered the patient had a diseased testicle and removed it.
• Surgeon was justified as emergency to remove testicle did not need consent.

Principle in Marshall v Curry (1933)

• There is an exception to the general rule of consent in a battery claim if there is a life threatening emergency.

Murray v McMurchy (1949) Facts and Holding

• Woman was having c-section and whilst there, the Dr decided to tie her tubes and remove a growth.
• Issue does the emergency exception extend this far?
• This was a situation of mere convenience and no life threatening emergency was present.

Principle in Murray v McMurchy (1949)

• The emergency exception to a battery action does not extend to circumstances of mere convenience.

Malette v Shulman (1990) Facts and Holding

• Woman involved in motor vehicle accident and required a blood transfusion.
• Woman had a card on her body that read: 'I am a member of the Jehova witnesses, under no circumstances do I want a blood transfusion, even if I die'.
• Dr ordered transfusion anyway.
• Dr and Hospital was liable for giving treatment where consent was not given.

Principle in Malette v Shulman (1990)

• The emergency exception can be overridden by informed and express consent.

Qumsieh v Guardianship Board Facts and Holding

• Woman giving birth, loss a lot of blood, blood transfusion indicated.
• Woman refused because of religion.
• Partner went to Guardianship Board to get order to do transfusion.
• It was a valid exercise of the guardianship legislation and was thus no battery.

Principle in Qumsieh v Guardianship Board

• If a valid exercise of statutory power is used, this can circumvent consent in some instances.

Liability of a Person Aiding in an Emergency

• Law Reform Act s 16: Medical practitioners, nurses, and other persons prescribed under regulations have no liability in respect of an act done or omitted in the course of rendering medical care, aid, or assistance, to an injured person in circumstances of emergency.
• The act must be done in good faith and without gross negligence; and the services must be provided for free and without expectation of reward: s 16(b).

R v Maurintonio (Canada) Facts and Holding

• Man falsely represented himself to be a doctor and was examining and administering treatment.
• Issue if consent was obtained by fraudulent representation to vitiate the consent.
• Consent had been fraudulently obtained.

What the Court Looked at to Decide R v Maurintonio (Canada)

• Court looked at the physical touching involved but largely looked to the lack of qualifications.

R v Mobilio (Victoria) Facts and Holding

• D was radiographer who performed internal examinations on women who consented to this for the purposes of an ultrasound.
• There was no medical utility for this but for D's sexual gratification only.
• The court focused purely on what women consented to. Patient gave consent to the nature and quality of the act and consent validly given.

What the Court Looked at to Decide R v Mobilio (Victoria)

• Don't worry about the purpose of the touching, just focus on the physical touching and what was 'consented to'.

R v Richardson (UK) Facts and Holding

• Richardson was a dentist whose licence was suspended but she performed surgery on many patients.
• The patients consented to dental work, and that is what they got.
• Had thus given consent.

What the Court Looked at to Decide R v Richardson (UK)

• It focused on the physical touching.

R v Naveed Tabassum (UK) Facts and Holding

• Defendant claimed he was a doctor and performed examinations for a breast cancer survey.
• Prosecuted for sexual assault arguing they consented to the physical nature of the act.
• The women consented to the nature of the act as a medical treatment, they would never have consented if they had known.

What the Court Looked at to Decide R v Naveed Tabassum (UK)

• Agreed with Mauritonio saying of course it matters about the nature and purpose of the act.

Reconciling Mauritonio, Mobilio, Richardson and Naveed

• Someone who is medically qualified is less likely to cause harm (Mobilio and Richardson) vs someone who is not qualified, thus the potential for harm is high (Mauritonio and Naveed).
• Public policy sort of argument.

Mauritonio and Naveed Tabassum Judgments

• Considers consent to touching, medical qualifications AND purpose of the act.

Mobilio and Richardson Judgments

• Doesn't matter if not qualified or collateral purpose, just consent to touching.

Dean v Phung Facts and Holding

• Patient sent to dentist who performed extensive dental work to mouth later assessed that this was not necessary.
• Dentist defence was that he consented but did it for a collateral purpose to make money and not for the therapeutic benefit of the patient.
• Treatment thus trespass to person.

Principles Summarised in Dean v Phung

• Where the nature of the procedure has been misrepresented, consent is not validly given.
• If the nature of the procedure carried out was not capable of addressing the condition, no valid consent.
• If issue raised as to the existence of a valid consent, burden of proof lies on the medical practitioner to establish that the procedure undertaken was consented to.

Negligence Time Periods and Tests Applied

• 1957 - 1992: Bolam's case.
• 1992 - 1999: Rogers v Whittaker (duty to warn of risks); Bolam's case (diagnosis, advice and treatment).
• 1999 - 2002: Naxakis says Bolam not good law; Rogers v Whittaker applied to all medical interactions (diagnosis, treatment, advice, material risks).
• 2002 - now: CLA applies. Bolam confirmed for treatment/diagnosis (s 22), Rogers v Whittaker confirmed for material risks (s 21); Wyong for breach (s 9).

Medical Practitioner's Duty of Care (Per Rogers v Whittaker)

• Diagnosis.
• Advice.
• Treatment.

Bolam (1957) Facts and Holding

• Shock therapy administered where the muscles involuntarily moved.
• Failed to administer muscle relaxer to Bolam and failed to restrain.
• The test is the standard of the ordinarily skilled person exercising or professing to have the special skill.

Test in Bolam (1957)

• For Doctors, a doctor is not negligent if the a Doctor acts in accordance with what is reasonably competent according to a reasonably competent body of medical practitioners at the time of the incident.

Roe v Ministry of Health (1954) Facts and Holding

• Two patients had undergone operations using spinal anaesthetic which was stored in small glass containers in carbolic acid.
• The carbolic acid seeped into the anaesthetic and caused the paralysis.
• At this time, the risk was very well known.
• Cannot judge the 1982 incident with the benefit of 1988 medical knowledge.

Principle in Roe v Ministry of Health (1954)

• The time for assessing when negligence occurred was the date of the accident.
• Must not look at the incident with current medical knowledge.

Dwan v Farquhar (1988) Facts and Holding

• In 1983, man had blood transfusion and contracted aids.
• Cannot judge the 1982 incident with the benefit of 1988 medical knowledge.
• The HIV was contracted directly from the transfusion, but but was not known at the time of 1982 that this was a large risk.

Principle in Dwan v Farquhar (1988)

• Principle in Roe followed in Australia.

Rogers v Whittaker (1992) Facts and Holding

• Patient had eyesight damaged and went to get it looked at with an operation.
• There was a risk she was not advised of that materialized.
• Two part test: 1 - reasonable skill and 2 - reasonable care that patient is aware of material risks that a reasonable person would likely attach significance.

Test from Rogers v Whittaker

• Two-part test for standard of care and breach:
• 1. The doctor must exercise reasonable care and skill in informing the patient of material risks inherent in the proposed treatment or procedure.
• 2. The doctor must take reasonable care to ensure that the patient is aware of any material risks that a reasonable person in the patient's position would likely attach significance to when deciding whether or not to undergo the treatment or procedure.

Significance of Rogers v Whittaker

• Confirmed Bolam's test as it related to treatment, diagnosis and advice.
• Said that there is a different test as it relates to the duty to warn of risks.
• Supports a move to body autonomy and informed consent.

Significance of Naxakis

• The High Court said that Rogers v Whittaker replaced the test for ALL of diagnosis, treatment and advice, not just the duty to advise of material risks.

Chin Keow v The Government of Malaysia (1967) Facts and Holding

• The Dr failed to take medical history from the women and failed to check her medical records.
• Prescribed penicillin in which she died as a result of with her serious reaction.
• Failure to take a medical history was prima facie of falling below the standard of a reasonable practitioner.

Principle in Chin Keow v The Government of Malaysia (1967)

• Failure to take a medical history was prima facie of falling below the standard of a reasonable practitioner.

Giurelli v Girgis (1980) Facts and Holding

• Patient with broken leg and physio with complains and surgeon and standing up.
• Patient was complaining and they needed to have his medical history looked at again.

Principle in Giurelli v Girgis (1980)

• Taking of medical history is an ongoing duty.

Locher v Turner Facts and Holding

• Patient complained over a length of time about rectal bleeding.
• Failure to update diagnosis and medical history.
• Applied Giurelli v Girgis (1980) 24 SASR 464 - ongoing duty to update medical history.

Patten v Parker (1941) Facts and Holding

• Put volatile liquid on the floor with the Doctors device.
• Patient suffered burns due to fire breaking out.
• When a patient is unconscious, there is a greater degree of care imposed whilst unconscious.

Takeaway from from Patten v Parker

• When a patient is unconscious, there is a greater degree of care imposed whilst unconscious.

Geissman v O'Keefe Facts and Holding

• Did the standard of care owed to a patient vary depending on whether they were in city or country- no.
• Simple skin scrape would have been remedied by antibiotic.
• No difference in standard.

Takeaway from Geissman v O'Keefe

• No difference in standard of care for remote doctors vs city doctors.

Paris v Borough Council

• Higher duty of care imposed on someone with one eye.

Markaboui v Western Sydney Area Health Authority (2005) Facts and Holding

• Severely injured due to moto vehicle accident but multiple underlying conditions.
• Spinal fracture, and heart problems, opioid addict, suffered persistent cardiac conditions, and pneumonia.

Takeaway from Markaboui v Western Sydney Area Health Authority (2005)

• Not every error in treatment is negligent (recall the standard).

Hancock v Queensland (2002) Facts and Holding

• Filep clip (sterilisation).
• All that could be shown was that the clip had been applied but not why it had come loose.

Takeaway from Hancock v Queensland (2002)

• Specifically pointing to the fact that it has happened is not enough - need to show why it happened (for breach).

Mahon v Osborne (1939) Facts and Holding

• Sponges counted in and out yet patient died still from sponge left inside.
• Negligence is not an absolute standard nor absolute success.

Takeaway from Mahon v Osborne (1939)

• It is not enough a P must show that he or she has been damaged - need to show WHY it happened and that why involved falling short of the standard of care.

Chasney v Anderson (1950) Facts and Holding

• Child choked following a tonsil ectopy.
• The sponge was left at the base of the Childs nose.
• Didn't take any precautions and didn't employ a nurse to count the sponges.

How to Reconcile the decisions in Mahon v Osborne and Chasney

• In Mahone, there was an emergency operation in which the surgeon had to perform at a high speed. It was complicated, yet the surgeon still had a method for counting sponges.
• In Chasney, routine operation, no method for counting.

Hocking v Bell (1948) Facts and Holding

• A drainage pipe was left inside a patient.
• No trouble in establish negligence.

Gloning v Miller (1954) Facts and Holding

• Forseps were left inside a patient.
• Again, no trouble in establishing negligence.

Dryden v Surrey County Council (1936) Facts and Holding

• Surgical gorse plugging was left inside the patient.
• No trouble in establishing negligence.

Takeaway in Barnett v Chelsea re Error in Diagnosis

• There is still a 'but for' test as to causation.

Stacey v Chiddy (1993) Facts and Holding

• If a GP had made a proper examination of her, the breast cancer could have been earlier detected and cured.
• The meligmecies that formed some 15 months later were unrelated to the earlier cysts which could have been found by a competent examination.

Stairmand v Baker

• Damages were awarded for a misdiagnosis of breast cancer.
• If the P had been diagnosed earlier, she would have lived an extra 7 years and would have experienced less pain and suffering which was otherwise the case.

Smith v Leonard

• Patient turned up to see his GP complaining of dysphasia.
• The trial judge held that it was unlikely that the cancer would have been discovered by the 1989 consultation, there was thus still but for causation issue.

Wood v QML Facts and Holding

• P, at advice of mother, went to hospital to have something checked out with biopsy.
• 1993 , P complained of weight loss and fatigue with lymphoma.

Flinders Medical Centre v Waller Facts and Holding

• Misdiagnosis of MS in instances where it could have been diagnosed at first instance led to it getting worse and thus could not get corrective surgery.
• Where a misdiagnosis had occurred and had deprived them from corrective treatment, this will be reflected in damages.

Takeaway from Flinders Medical Centre v Waller

• Where a misdiagnosis had occurred and had deprived them from corrective treatment, this will be reflected in damages.

Wighton v Arnot

• If you think you have caused damage to a patient, is there a duty to tell the patient.

Takeaway from Wighton v Arnot

• It is negligent to not tell the patient about the suspicions and possibility of additional damage.

Kite v Malycha re Failure to Follow Up

• Doctor found liable due failure to follow up woman with breast results.
• Partial defences of contributory negligence won't assist.

Takeaway from Kite v Malycha

• The failure to follow up is 100% on a doctor to do and partial defences of contributory negligence won't assist.