Download Negligence Templates

MEDICAL NEGLIGENCE TEMPLATE – FAILURE TO ADVISE
ISSUE 1 – DUTY OF CARE
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Established categories  Hospitals, doctors, nurses & other healthcare professionals owe a duty of
care to their patients: Rogers v Whitaker
Single & comprehensive duty of Dr’s broken up into 3 aspects  Advice, Diagnosis & Treatment
Novel categories  Alternative health practitioner (Shakoor), medical receptionist (Heise), sexual
partner of patient (BT v Oei), unborn child of patient (X v Pal)
There is NO general duty to rescue, so healthcare professionals under no obligation to come to
person’s aid
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ISSUE 2 – BREACH OF THE DUTY
SUB-ISSUE 1: SET THE STANDARD OF CARE
SUB-ISSUE 2: HAS THE STANDARD BEEN
1) Objective Test  Whether a reasonable person BREACHED?
in the position of the Def’t would have done or
1) Was the breach reasonably foreseeable (not faromitted to do the act in the circumstances:
fetched or fanciful): Wyong Shire Council
Rogers v Whitaker
2) Risk must not be insignificant: s9(1)(b) CLA
2) Subjective Characteristics of:
3) Response to the Risk: ss9(1)(c) and 9(2) CLA
(A) Defendant (Medical Practitioner)
- Don’t worry about calculus of neg. factors
- Skill  Consider whether specialist
- Professional Standards: s21(1) CLA 
(Rogers) or inexperienced (Wilsher; Jones)
preserves same test as Rogers relating to
- Knowledge
material risks (Proactive/Reactive Duties or
(B) Plaintiff (Patient)
Objective/Subjective test)
- Knowledge  of Dr’s inexperience: Cook
- Current med. opinion – not much weight
- Therapeutic privilege exception?
(Battersby)
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ISSUE 3 – DAMAGE
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RECOGNISED AT LAW
To be recognised at law, the
physical injury and
subsequent injury must be
that which is most likely.
A loss of opportunity will not
be that which is most likely:
Chappel v Hart
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CAUSATION IN FACT
s11(1)(a) restates the c/law
‘but for’ test: March v
Starmare
Exceptional circumstances &
loss allocation: s11(2) CLA
 Pltf must show 2 things:
1) Pltf would have refused
t/ment
- Test applied is subjective
(Chappel) but obj. factors
can be taken into account
(Rosenberg; s11(3) CLA)
2) Treatment caused loss
 Pltf has burden of proof: s12
 Intervening Acts: Mahoney
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REMOTENESS
Damage must be reasonably
foreseeable as a real risk:
Wagonmound No 2
s11(1)(b) CLA updates this 
‘within app. scope of liability’
s11(4) CLA Loss Allocation
Egg-Shell Skull Principle 
‘Take your victim as you find
them’
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ISSUE 4 – DEFENCES
CONTRIBUTORY NEGLIGENCE
Partial defence under s10
Law Reform Act 1995 (Qld)
 Apportioned on basis of what
is just & equitable
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ASSISTING AT ACCIDENT SCENE
 s16 Law Reform Act
 5 elements to satisfy:
1) Dr’s and nurses
2) Med. care, aid or
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LIMITATION PERIOD EXPIRED
s11 Limitations of Actions
Act 1974 (Qld)  3 years
from the date damage
occurred in which to bring
MEDICAL NEGLIGENCE TEMPLATE – FAILURE TO DIAGNOSE & TREAT
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assistance
claim for personal injury
3) Emergency (scene)
 ss20A-20J Personal Injury
4) Without reward or fee
Proceedings Act 2002 (Qld)
5) Good faith & without
regarding claims by children
gross negligence
ISSUE 1 – DUTY OF CARE
Established categories  Hospitals, doctors, nurses & other healthcare professionals owe a duty of
care to their patients: Rogers v Whitaker
Single & comprehensive duty of Dr’s broken up into 3 aspects  Advice, Diagnosis & Treatment
Novel categories  Alternative health practitioner (Shakoor), medical receptionist (Heise), sexual
partner of patient (BT v Oei), unborn child of patient (X v Pal)
There is NO general duty to rescue, so healthcare professionals under no obligation to come to
person’s aid
Delay in seeking medical
advice: Kalokerinos
Failure to properly describe
symptoms: Locher
↓
ISSUE 2 – BREACH OF THE DUTY
SUB-ISSUE 1: SET THE STANDARD OF CARE
1) Objective Test  Whether a reasonable person
in the position of the Def’t would have done or
omitted to do the act in the circumstances:
SUB-ISSUE 2: HAS THE STANDARD BEEN
BREACHED?
1) Was the breach reasonably foreseeable (not farfetched or fanciful): Wyong Shire Council
2) Risk must not be insignificant: s9(1)(b) CLA
3) Response to the Risk: ss9(1)(c) and 9(2) CLA
- Don’t worry about calculus of neg. factors
- Professional Standards: s22 CLA  creates
a modified Bolam principle: ‘widely
accepted by peer professional opinion by
significant no. of respected practitioners…’
- Except if irrational or contrary to written
law
- But, standard to be determined by the
courts
Rogers v Whitaker
2) Subjective Characteristics of:
(A) Defendant (Medical Practitioner)
- Skill  Consider whether specialist
(Rogers) or inexperienced (Wilsher; Jones)
- Knowledge
(B) Plaintiff (Patient)
- Knowledge  of Dr’s inexperience: Cook
↓
ISSUE 3 – DAMAGE


RECOGNISED AT LAW
To be recognised at law, the
physical injury and
subsequent injury must be
that which is most likely.
A loss of opportunity will not
be that which is most likely:
Chappel v Hart






CAUSATION IN FACT
s11(1)(a) restates the c/law
‘but for’ test: March v
Starmare
Exceptional circumstances &
loss allocation: s11(2) CLA
Necessary to show that act or
omission caused pltf to suffer
damage
Will not be satisfied if
damage would have been
suffered anyway: Barnett
Pltf has burden of proof: s12
Intervening Acts: Mahoney




REMOTENESS
Damage must be reasonably
foreseeable as a real risk:
Wagonmound No 2
s11(1)(b) CLA updates this 
‘within app. scope of liability’
s11(4) CLA Loss Allocation
Egg-Shell Skull Principle 
‘Take your victim as you find
them’
↓
ISSUE 4 – DEFENCES
CONTRIBUTORY NEGLIGENCE
ASSISTING AT ACCIDENT SCENE
LIMITATION PERIOD EXPIRED
MEDICAL NEGLIGENCE TEMPLATE – FAILURE TO DIAGNOSE & TREAT




Partial defence under s10
Law Reform Act 1995 (Qld)
Apportioned on basis of what
is just & equitable
Delay in seeking medical
advice: Kalokerinos
Failure to properly describe
symptoms: Locher


s16 Law Reform Act
5 elements to satisfy:
1) Dr’s and nurses
2) Med. care, aid or
assistance
3) Emergency (scene)
4) Without reward or fee
5) Good faith & without
gross negligence


s11 Limitations of Actions
Act 1974 (Qld)  3 years
from the date damage
occurred in which to bring
claim for personal injury
ss20A-20J Personal Injury
Proceedings Act 2002 (Qld)
regarding claims by children