Transcript Duty of Care/Standard of Care

Duty of Care/Standard of
Care
Barbara Barrowman
Andrew Latus
Jan. 6, 2003
Outline
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Concepts
Why do these concepts matter?
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Duty of Care
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Negligence
When does a duty of care exist?
Standard of Care
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Differing standards for differing roles?
Concepts
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Duty of Care
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Exists in certain situations
When it exists, a physician is obliged to provide care to some
individual.
This obligation may be moral or legal or both.
See Doing Right, Chapter 6
Standard of Care
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Refers to the quality of care which must provided by a physician
May vary with situation (e.g., emergency outside hospital)
May vary with qualifications of the physician (e.g., specialist or GP)
The Law of Negligence
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The concepts of duty of care and standard of care are clearly
central to the proper practice of medicine.
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There is also a very practical reason for taking these concepts
seriously, namely, their significance where accusations of
negligence are concerned.
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Negligence
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most common type of civil claim brought against health care
professionals
physicians legally liable to patients for causing harm through failure
to meet applicable standard of care
Negligence – Required Elements
1. Existence of a duty of care
2. Breach of standard of care
3. Some harm or injury to patient
4. Causal link between defendant (doctor)’s conduct
and plaintiff (patient)’s injury
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A session during the ISD course will address
the topic of negligence more fully.
When Does a Duty of Care Exist?
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Once doctor-patient relationship is
established, duty of care arises
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When is a doctor-patient relationship established?
Duty of care beyond existing doctor-patient
relationship?
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Emergencies
Duty to third parties
Creating a Doctor/Patient Relationship
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“In providing medical service, do not
discriminate against any patient on such
grounds as age, gender, marital status,
medical condition, national or ethnic origin,
physical or mental disability, political
affiliation, race, religion, sexual orientation or
socioeconomic status.[..] does not abrogate
physician’s right to refuse to accept a patient
for legitimate reasons.” (CMA Code of Ethics
s. 7)
Terminating Doctor-Patient Relationships
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May be terminated by patient, or in certain situations
by doctor
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Where doctor wishes to terminate relationship, there
are specific requirements to protect patient’s interests
(will be discussed in future session)
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See also material from session on difficult patients
Limitations on Duty of Care
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Request from patient
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may raise questions of patient competence
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Medical futility
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Both these topics are complex and will be left
aside for a later session
Case: Is there a Duty of Care?
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Dr. Rowe is a psychiatrist. While writing up a chart on the
psychiatry unit, one of nurses he knows asks him what he
would recommend that her husband try for his “heartburn.”
Dr. Rowe recommends that he try an antacid and if that
doesn’t work, an acid-reducing medication.
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Later that week, the nurse’s husband goes to emergency with
his “heartburn” – tests reveal unstable angina and he is
admitted for treatment.
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Did Dr. Rowe have a duty of care towards the nurse’s
husband?
Discussion
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Courts are likely to find duty of care wherever
it’s reasonable to expect reliance on medical
advice, or reasonably forseeable that harm
may result
Think about why you (as opposed to a lay
person) are being asked for your opinion
Remember that advice you view as casually
given may not be viewed that way by others.
Case: Duty of Care in Emergencies?
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Dr. Adams was rushing through the Avalon Mall on
Christmas Eve. She had just finished the last of her
Christmas shopping, and was anxious to get going,
as she was late for a family party. As she was about
to leave the last store, she saw an elderly man
suddenly collapse to the floor. The woman with him
cried out, “Help, someone, please – my husband’s
not breathing.”
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Is there an ethical duty of care in this situation?
Is there a legal duty of care in this situation?
Case: Duty of Care in Emergencies?
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Dr. Brophy is a busy family physician in a small community.
She is not accepting any new patients. The nearest emergency
department is a 30 minute drive away.
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One morning while seeing patients in her clinic, a woman
rushes in and tells her receptionist that she needs a doctor to
come down to the corner of the street where her husband has
collapsed, apparently unconscious. Neither the woman nor
her husband are patients of Dr. Brophy.
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Is there an ethical duty of care in this situation?
Is there a legal duty of care in this situation?
Duty of Care in Emergencies
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Most agree that an ethical duty exists
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“Provide whatever assistance you can to any person with
an urgent need for medical care.” (CMA Code of Ethics,
s.9)
Traditionally it has been held that there is no legal
duty of care
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However, a recent Australian case relied on a similar
provision in a Code of Ethics to impose a legal duty to
render emergency medical assistance
Important to consider what the clinic holds itself out as
doing (e.g., clinic vs. emergency room)
“Good Samaritan” Legislation
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If we accept the existence of an ethical duty of care
in emergency situations, this raises concerns about
the physician’s ability to provide an adequate
standard of care.
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In most provinces, a doctor who provides emergency
treatment in a place without adequate medical
facilities is protected from liability for any
death/injuries unless they are the result of “gross
negligence”
Duty to Third Parties
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Duty to warn where risk of harm to third
parties
Foreseeable MVA’s
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These are not, however, cases in which one has a
duty of care for these third parties as patients and
so will not be dealt with in this session
Case: Standard of Care
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Sarah presented with right-sided lower abdominal pain. After
a history, physical exam, investigations and consultation with
a surgeon and a gynecologist, she was suspected of having
pelvic inflammatory disease and was admitted for observation
and treatment.
Despite treatment with antibiotics, her condition deteriorated
over the next several days.
Three days after admission, she was taken to the O.R. where
a ruptured appendix was diagnosed and removed. Sarah
suffered a lengthy and complicated post-operative recovery.
Does this case raise concerns about the standard of care?
Standard of Care: General Considerations
“Every medical practitioner [..] is bound to exercise that
degree of care and skill which could reasonably be
expected of a normal, prudent practitioner of the same
experience and standing [..] If he holds himself out as a
specialist, a higher degree of skill is required..” (Crits v.
Sylvester, S.C.C. 1956)
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The standard is not one of perfection
Mistake not necessarily = negligence
However, deterioration or failure to respond to
treatment may require re-evaluation of initial
diagnosis
Case: Standard of Care & House Staff
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Joe Green is a clinical clerk two weeks into his
surgery rotation. He is in a minor procedures clinic
this morning with Dr. Sharp. Mrs. Barrett comes in
to have a suspicious mole removed from her back.
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Dr. Sharp says “Joe, you can do this one if Mrs.
Barrett agrees”. Mrs. Barrett replies, “Sure, that’s
fine with me.”
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Does this case raise any concerns about standard of care?
Standard of Care - House Staff
“[an intern] must use the undertaken degree of skill, and
that cannot be less than the ordinary skill of a junior
doctor […], as well as an appreciation of his own
limitations and of the necessity for caution in anything he
does.” (S.C.C. 1952)
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Mistakes of house staff may also implicate others hospital, supervising doctor
Students have an ethical obligation to know their
own limits and to inform their supervisors and/or
patients as to what these limits are
Case: Standard of Care & Constraints
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Dr. Lee is a family physician in a rural community. One of
his regular patients, John, comes to see him, complaining of
worsening headaches over the last few weeks. Dr. Lee is
concerned and is considering whether John should be seen by
a neurologist and/or referred for a CT or MRI.
The nearest CT, MRI and neurologist is 10 hours drive away
A memo was recently sent out from the regional hospital
regarding “unnecessary” referrals for CT’s,MRI’s and
specialists
What does an adequate standard of care require?
Standard of Care - Locale & Facilities
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In applying standard of care, the court may
take into account medical resources (facilities,
equipment) available to the physician and the
type of community in which the physician
practices
Standard of Care - Cost Constraints
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Evolving area of law, ethics and policy
Tension between interests of individual
patients and cost constraints on societal level doctors often caught in the middle
Judicial comments - doctor’s responsibility to
individual patient takes precedence over
responsibility to medicare system