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Courts might have little evidence upon which to assess the future impact of their rules, and even if the predictive assessment proves to be unproblematic, reasonable minds might differ as to what action a particular policy requires and duty rules might thus attract never-ending controversy.

Focusing on the “reasonable person” test in tort law, critically examine the application of this test in the context of either sports or medicine.  On the basis of your analysis, identify areas in need of reform and make reform suggestions based on your insights.  

You may choose to confine your paper to a discrete topic to facilitate a more in-depth analysis on a specific area of interest, eg

(i) on one sport or type of medical treatment in particular; or
(ii) concussion in sports; or
(iii) medical intervention in reproduction.  A more general approach to the discussion and analysis within the confines of either sports or medicine is equally valid.

Duty of Care and the 'Reasonable Person' Test

Focusing on the “reasonable person” test in tort law, critically examine the application of this test in the context of medicine.

The principle related with duty of care has been provided by the court in Donohue v Stevenson (1932). In this case, it was held by the court that a general duty is present which requires that reasonable care should be used for avoiding any foreseeable injury to any person who may be treated as 'neighbor'. The brief facts of this case provide that a woman drank a ginger beer bottle and she found a decomposed snail in the bottle. Consequently, the woman fell ill and she initiated proceedings against the manufacture of the drink. It was decided by the court that the manufacturer of the drink was negligent as a result of its failure to make sure the safety of the woman in the process of production. While delivering this verdict, the court ignored the fact that ginger beer had not been purchased by the woman herself, but it was purchased by a friend of her. As a result of this verdict, it has been recognized that there is a general duty of care in favor of the neighbor. Regarding the date of care, a neighbor has been described as the person who can be reasonably considered to be so closely and directly affected by an act. In such a case it is regardless, who had purchase a bottle of ginger beer as it was rational that any person, who consumed the beer, would have the same fate and therefore can be considered in view of the 'neighbor' principle.

In this way, it is provided by the law that wherever there is a breach of duty of care, it is probable that the party may be held accountable for negligence. In this context, medical negligence is also treated as a part of the tort law. The notion of harm is a significant consideration in establishing negligence. The reason is that a large number of claims under the law of tort for medical negligence remained unsuccessful as they are not able to establishing the court that harm suffered by the party was the direct consequence of an action or the failure to act.

For the purpose of deciding the presence of negligence, there is a three stage test that can be used for this purpose. Therefore the procedure depends on the establishment of the fault of the hospital or the doctor etc. The purpose behind granting compensation to the claimant is to put the claimant in the similar position where it would have been if it had not suffered the harm caused by negligence of the other party. The monetary value will not only be decided, keeping in view the actual expenses that have been incurred by the claimant (including loss of earnings), but also by considering the loss of facility suffered by the claimant and the pain and suffering of the claimant caused as a result of injury. Similarly, there are certain other philosophical objectives behind the promotion of accountability and making sure that the persons who are at fault, should be deterred from the future acts of negligence by making them pay compensation.

The Three-Stage Test for Establishing Negligence

Therefore, the elements of the duty can be described as follows:

  1. A person should owe a duty of care.
  2. After establishing the duty of care, a breach of duty should be there.
  3. Reasonably foreseeable harm should have been suffered as a direct consequence of such breach.

A special relationship exists between a physician and the patient. For example, most of the anesthetists do their job in hospital environment and generally do not have the patients being straight admitted in their care. Whenever a patient has been admitted in a hospital, it results in the creation of a duty of care association. Such a relationship is applicable in case of any doctor who gets in touch with the patient and not only the team admitting the patient. Therefore, the medical law academicians have argued that all the patients that the doctors owe a duty of care towards all the patients who are handled by them in their professional environment  and not only by the doctors with whom the patients come in contact but also by the doctors who have been employed for providing care to the patient. For instance, a doctor owes a duty of care towards the patient who is having cardiac arrest in the corridor of the hospital from where the doctor happens to be passing and provision of help under the circumstances can be anticipated, and may not be treated as good Samaritan action.

The breach can be established where the practice is adopted by the doctor did not meet the suitable standard. The threshold of rational person or any ordinary person who has been placed under similar circumstances is generally applicable in most of the cases under the tort law. However, in cases involving a potential violation of professional duty, this standard has been really interpreted as the standard of comparable professional practice. A significant case in this regard is Bolam v Friern Hospital Trust. In this case there was a patient who had suffered fractures during ECT treatment. It was alleged by the patient that there was negligence in care under anesthesia because the patient was not administered muscle relaxation for the process and was not warned or restrained regarding the risk of bone crack. However in this case it was held by the court that the patient was unsuccessful in establishing negligence. The reason was that there was evidence available with the court according to which, at the time it was not a widespread observance that muscles relaxation should be administered as they were divergent views present regarding the benefits of muscle relaxation that need to be balanced against the increase in the risks of relaxant. The other party claimed that if a doctor had acted according to the practice that was treated as being acceptable by a responsible body of doctors, it was adequate and the claimant was to demonstrate that under similar circumstances, no rational doctor would have worked in the same way. However, the Bolam standard faces criticism as it significantly relies on expert evidence by the same test is used in case of further professions where negligence is being considered.

The Bolam Standard and its Criticisms

It is claimed that the existence of the opinion that is in support of the actions of the doctors is in favor of medical profession as it hangs over the responsibility to decide negligence again on the same professionals. The support provided by well-known members of the profession regarding your procedure debatably makes it uncomplicated to shield a claim related with the breach of duty. However, in cases related with medical negligence, the Bolam test is still used frequently even if it is not definitive. The reason is that in subsequent cases, the idea has been doubted according to which an acknowledged standard of care has to be judged by the doctors remarking on the standards of practice and it may be a part of the role played by the court.

At this point, it needs to be mentioned that the developments made in medical technology takes some time to be spread. Therefore it is not possible to immediately put into practice, every new development. For example, a patient had sustained brachial plexus injury as a result of remaining in one position for a long time. There was an article which had been published six months earlier and described such a complication. However, the article was not read by the anesthetist and was not aware regarding its implications. However, the court will not arrive at the conclusion regarding the breach of duty of care towards the patient in such a case.

In the same way, the error of judgment does not necessarily mean that there is a breach of duty. It can be said, only under the conditions where the doctor failed to act with the degree of care that can be expected in case of a reasonable competent professional. This position is particularly relevant in case of the doctors in training as the standard is that which is expectable of a doctor in same grade of the specialty or unit. There is also an assumption in this regard that there needs to be a public expectation of safety and the doctors undergoing training are required to act according to the standard of the great that they are operating in. As a result, there are no concessions available for the lack of relevant experience. It is expected that on the first day itself, the doctor should work according to the same standard of public safety as the doctor who is on the last day of that post. The dissimilarity that may be present in the performance of the two doctors is related with the degree by which the new doctor can be expected to consult and seek the support for compensating the absence of skill or knowledge and the level to which the new doctor expects to be supervised.

Challenges in Establishing Causation

It may be difficult to establish causation because it requires to be established that 'but for' the actions or inaction of the doctor, the harm would not have taken place. Under these circumstances, it is not surprising that the claims related with medical negligence generally fail as a result of the inability in establishing causation because generally there a number of possible explanations related with the outcome. However, if it is possible to establish that the breach can be described as a significant contribution in the damage or if it is more likely that the damage was the result of negligence as compared to any other reason, it is generally considered to be sufficient. However in some cases, as a result of the lack of any other reasonable explanation regarding the phenomenon, the notion of 'res ipsa loquitur' may be applicable. This type of situation will be applicable in case of the procedures that have been performed on the wrong limb or side. For example brachial plexus block and if damage results, then the causation can be understood to be recognized unless it can be shown by the defendant that another reasonable explanation is also present.

Conclusion:

Medical negligence can be described as a three stage test. According to this test, medical professionals have a duty of professional care towards the patients and as a result of such violation of duty, any damage should have been suffered by the patient. In order to bring a successful claim under medical negligence, it is very significant that all the parts of this test have been satisfied. According to the civil considerations of negligence, it is required that the doctor should have acted according to an appropriate standard generally, but not solely decided by the standards of the peers while in case of criminal negligence, the standard of practice, should have resulted in causing serious harm as a result of the actions that can be treated as completely negligent or incompetent. As a result of the greater availability of practice guidelines that can assist the court, the implications and justifications for any deviation from accepted practices should always be considered if any harm has been caused to the patient. At the same time, the doctors in training should also keep in mind that the law expects them to seek assistance and advice in cases where they do not have the experience for preserving public safety.

Christian Witting, ‘Duty of Care: An Analytical Approach’ (2005) 25 Oxford Journal of Legal Studies 33

Christian Witting, ‘The ThreeStage Test Abandoned in Australia — Or Not?’ (2002) 118 Law Quarterly Review 214

Ian Malkin and Tania Voon, ‘Social Hosts’ Responsibility for Their Intoxicated Guests: Where Courts Fear to Tread’ (2007) 15 Torts Law Journal 62, 79–81

Jane Stapleton, ‘Comparative Economic Loss: Lessons from CaseLawFocused “Middle Theory”’ (2003) 50 UCLA Law Review 531

Jane Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24 Australian Bar Review 135

Peter Cane, ‘Another Failed Sterilisation’ (2004) 120 Law Quarterly Review 189

Case Law

Cattanach v Melchior [2003] HCA 38

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54

Harriton v Stephens [2006] HCA 15

Pyrenees Shire Council v Day [1998] HCA 3

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