Wednesday, April 6, 2011

Law of Tort - Negligence - Duty & Standard of Care

The Straits Times April 6, 2011 "Patient's wife sues top heart surgeon".

The husband had a bypass surgery in Texas in Jan 17, 2007 but suffered a heart attack on March 9, 2007. The heart surgeon performed a re-do coronary artery bypass graft surgery 3 days later. The patient died 43 days after the heart surgery. Autopsy report said that death resulted from complications arising from the surgery. A coroner's inquest stated a verdict of misadventure.

The wife alleged that the surgeon was liable for the death and seeks damages. Her case was that the treatment was inappropriate, risks were understated and the husband was inadequately briefed on the options available. The surgeon, amongst other things, said that the patient had agreed to the operation after being advised about the options and thinking over.

The High Court hearing is in progress. What is the standard of care expected from a heart surgeon? Experts are being called to testify.

NOTES COMPARING REAL ESTATE TO MEDICAL PROFESSIONS
Comparing the disclaimer clause and the informed consent form

1. LAW OF TORT - DEFINITION
Definition: Tort is a breach of duty imposed by law, making the offender (defendant) liable to action for causing damage or injury to the plaintiff.
It is a body of law that addresses and provides remedies for civil wrongs not arising out of contractual obligation acts.
2. LAW OF TORT - DUTY OF CARE - TEST
Duty of Care - "But For" Test
A test of duty of care is: "You must take reasonable care to avoid acts and omissions that you can reasonably foresee, would be likely to injure your neighbour"

The cause of damage is established by the "but for" test:
The court will ask - would the plaintiff (patient, buyer, tenant, owner) has suffered the injury but for the defendant's (doctor's, agent's) negligence?
3. LAW OF TORT - DUTY OF CARE - BREACH
Standard of Care - Breach.

More important in professions requiring special skill or expertise, the person must exercise a reasonable standard of care that must be measured.

The standard of care is measured by the "reasonable man" test:
Whether the defendant's conduct fall below the standard of care which is expected of the reasonable man.
4. LAW OF TORT - NEGLIGENCE
To succeed in an action for negligence, the plaintiff must show that:
- the defendant owes him a duty of care
- the defendant has beached that duty of care
- his breach causes damage/loss to the plaintiff
- the damage/loss is not too remote (not controllable, not foreseeable, not an expert on a particular subject matter).

5. LAW OF TORT - DISCLAIMER
1. A disclaimer (e.g in veterinary medicine, an informed consent form signed by the pet owner or patient) may prevent an agent (doctor) being held liable to a 3rd party in tort arising from fiduciary duty.
2. A disclaimer does not automatically protect an agent (doctor) from any liability to the 3rd party.
3. For a disclaimer to be effective, it must be firmly incorporated into the contract and must be done at the time the contract was made.
4. Whether the disclaimer will be effective or not depends on the court's interpretation of the "reasonableness" test and the facts of each case.

A common disclaimer clause is as follows:
The vendor does not make or give and neither the agent nor any of his employee has the authority to make or give any representation or warranty whatever in relation to the property.

1 comment:

  1. Dear publisher,
    "Patient's wife sues top heart surgeon" is a typical case put forward.
    If you allow can I reproduce this as a case study for a Course Book of Management students which I am seeking to publish titled : “Risk Management and Insurance Planning”.
    Jatinder Loomba
    Asstt. Proff. JK Business School, Gurgaon

    ReplyDelete