Which landmark medico-legal cases have shaped modern practice? MO staff reporters review them.ROGERS V WHITAKER:
A doctor’s duty to warn
SNAPSHOT: In 1992, the High Court of Australia determined that a doctor has a duty to warn a patient of any material risk involved in a proposed treatment.
A risk is considered material if a reasonable person in similar circumstances would attach significance to the risk.
In this case, the patient, Maree Whitaker, became virtually blind after an unsuccessful operation on her right eye caused sympathetic ophthalmia in her left eye.
There was no question in the case that the surgery had been performed with the requisite skill and care.
Ms Whitaker sued for the failure of ophthalmologist Dr Christopher Rogers to warn her of the possibility (approximately one in 14,000) that the sympathetic ophthalmia condition could develop, despite Ms Whitaker’s expressed specific concern that her ‘good eye’ not be harmed.
The decision overturned the longstanding principle that a doctor could not be found negligent in warning a patient if the doctor acted within the bounds of common professional practice.
No single case has had as much impact on outlining what a doctor’s duty is, according to Slater & Gordon medical negligence lawyer Bill Madden.
It established more clearly the informed consent requirement of healthcare.
United Medical Protection’s national claims manager Dr Megan Keaney also identifies the case as “the single most important decision of recent times” relevant to medical practice.
“The principles recognised reflect the changing nature of the doctor-patient relationship, recognising the importance of patient autonomy and a move away from medical paternalism.”
In fact, according to Mr Madden, “it tore up any suggestion of [a] paternalistic approach by the profession – that went out the window”.
MIGA medico-legal manager Cheryl McDonald says the Rogers v Whitaker decision signalled another change.
“It also took away from the medical profession the ability to judge its peers and left that role to the courts to adjudicate.”
BREEN V WILLIAMS:
Access to records and fiduciary duties
SNAPSHOT: In 1996, the High Court unanimously held that under the common law a patient did not have any right of access to inspect and/or obtain copies of his or her medical records.
The patient, Julie Breen, had sought access to the records of plastic surgeon Dr Cholmondeley Williams, who had consulted and treated her in relation to silicone breast implants she received in 1977.
She was contemplating legal proceedings against the manufacturer of the implants, and believed that Dr Williams’ records could be relevant to those proceedings.
Dr Williams offered to provide Ms Breen with a report that contained what he considered to be the relevant information for her purposes, but did not agree to give her access to the original notes themselves, and the High Court agreed that was enough.
The decision sparked calls for legislative reform that would give patients a right of access to their medical records, granted under subsequent privacy laws.
Breen v Williams is not only the best-known ‘test case’ over ownership of medical records, but according to Mr Madden, it is also a landmark case because of its analysis of the doctor-patient relationship.
“It questioned whether a fiduciary relationship exists, and it said there is a contract between doctor and patient.
“The case locked down principles applied today – that is, the duty of a contract.”
A fiduciary duty relates to the special duties of trust and confidence within a professional-client relationship, under which doctors have a duty to act in the patient’s, rather than their own, interests.
Such a duty has been raised in recent debates over issues such as open disclosure of adverse events, with some experts raising fiduciary duty of doctors as an example of how doctors’ obligations to disclose adverse events to patients are ethical and legal.
|Other influential decisions|
|MISDIAGNOSIS, patient follow-up and duties to attend in an emergency were other significant GP issues raised by landmark decisions. They include:|
ALEXANDER V HEISE:
Prioritising care by GPs and staff
SNAPSHOT: In 2001, the NSW Court of Appeal found that a doctor and receptionist had a duty to ensure patients seeking care were properly prioritised, and that doctors had guidelines in place for staff to ensure patients were prioritised appropriately.
In the case, Christine Alexander alleged that Dr Geoffrey Heise and his receptionist were negligent in not arranging an earlier appointment for her husband, Edward Alexander, which she said she tried to arrange and which could have averted his death.
The court found that Dr Heise and the receptionist owed Mr Alexander a duty of care, but that there was no breach of duty by the receptionist.
The conduct of the receptionist was reasonable in the circumstances, considering the information that she had been given from Mrs Alexander at the time.
The court held that there was no breach of duty on the part of Dr Heise in that the guidelines provided to the receptionist were appropriate, as was the degree of supervision and level of training.
According to MIGA’s Ms McDonald, the outcome was significant as it showed that in certain circumstances there can be a duty of care owed by a receptionist and doctor to a patient who presents by proxy.
Breach of this duty of care by the employee receptionist would result in breach of the doctor’s duty of care, the doctor being vicariously liable for the acts and omissions of employees.
She said the court established that a general practitioner had a responsibility to ensure that patients seeking appointments were properly prioritised, and that medical practitioners should have guidelines in place.
These would ensure that when a receptionist was unsure if a patient’s condition was urgent, he or she could consult a doctor for a decision on whether the patient needed to be seen urgently and, if so, the time period in which he or she needed to be seen.
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