I SSUE 1 – D UTY OF C ARE

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
↓
I SSUE 2 – B REACH OF THE D UTY
S UB -I SSUE 1: S ET THE S TANDARD OF C ARE
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: Rogers v Whitaker
2) Subjective Characteristics of:
(A) Defendant (Medical Practitioner)
Skill  Consider whether specialist ( Rogers ) or inexperienced ( Wilsher; Jones )
Knowledge
S UB -I SSUE 2: H AS THE S TANDARD BEEN B REACHED ?
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: s21(1) CLA  preserves same test as Rogers relating to material risks (Proactive/Reactive Duties or
Objective/Subjective test)
(B) Plaintiff (Patient)
Knowledge

of Dr’s inexperience: Cook
Current med. opinion – not much weight
Therapeutic privilege exception? ( Battersby )
↓
I SSUE 3 – D AMAGE


R ECOGNISED AT L AW
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
C ONTRIBUTORY N EGLIGENCE

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
C AUSATION IN F ACT
 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
↓
I SSUE 4 – D EFENCES
A SSISTING AT A CCIDENT S CENE
 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
R EMOTENESS

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’
L IMITATION P ERIOD E XPIRED
 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

MEDICAL NEGLIGENCE TEMPLATE – FAILURE TO DIAGNOSE & TREAT
I SSUE 1 – D UTY OF C ARE

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
↓
I SSUE 2 – B REACH OF THE D UTY
S UB -I SSUE 1: S ET THE S TANDARD OF C ARE
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: Rogers v Whitaker
2) Subjective Characteristics of:
(A) Defendant (Medical Practitioner)
Skill  Consider whether specialist ( Rogers ) or inexperienced ( Wilsher; Jones )
Knowledge
S UB -I SSUE 2: H AS THE S TANDARD BEEN B REACHED ?
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…’
(B) Plaintiff (Patient)
Knowledge

of Dr’s inexperience: Cook
Except if irrational or contrary to written law
But, standard to be determined by the courts
↓
I SSUE 3 – D AMAGE


R ECOGNISED AT L AW
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
C ONTRIBUTORY N EGLIGENCE

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
C AUSATION IN F ACT
 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
↓
I SSUE 4 – D EFENCES
A SSISTING AT A CCIDENT S CENE
 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
R EMOTENESS

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’
L IMITATION P ERIOD E XPIRED
 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