February 2011
MALPRACTICE: THE DOS AND DON’TS
WHEN DOES THE DOCTOR HAVE AN OBLIGATION TO TREAT THE PATIENT?
Under normal circumstances, the existence of the doctor-patient
relationship is not questioned. However, in certain scenarios it
becomes important to decipher when a stranger becomes a patient.
In private medicine there is a contractual relationship in which
the patient is owed a duty. However, in the NHS there is no obligation
to treat a stranger and thus it is crucial to understand when this
transition comes into effect, particularly when the question of liability
arises. It is thought that a duty of care arises when the doctor knows
of the patient’s need for medical services. In essence, the duty of care
may manifest before the patient is even examined by the doctor if her
need comes to his knowledge. In the case Barnett v Chelsea and
Kensington Hospital Management Committee a duty of care existed
without the physician, Dr Banerjee, having examined the patients.
Three nightwatchmen working for the hospital, after drinking tea
later found to contain high traces of arsenic, attended the casualty
department of the hospital. The nurse telephoned Dr Banerjee who
requested that they go home and call their own doctors. All three men
died hours later from arsenic poisoning.
One of the men’s widows brought an action in negligence, where
the judge, Nield J, held that Dr Banerjee owed these men a duty of
care which he breached as he did not examine them himself.
However, the action in negligence failed due to the the fact there was
no valid proof of causation. Had the Doctor examined them he would
probably have diagnosed food poisoning and even so, the hospital
[1]
did not have the necessary medical provisions to treat arsenic
poisoning.
Worthy of particular note is that the duty of care came into effect
as soon as he was informed by the nurse, of their medical need.
Arguably, the nurse also carried a duty of care such that she should
have reported the doctor’s breach of his duty. Thus, we see the
distinction between a moral duty and a legal duty. A doctor is
assumed to embrace the ideology of beneficence but, in reality, he
only needs to act in such a manner when he has assumed
responsibility of the patient’s care.
In this scenario, the physician was of the belief that he had not
yet assumed responsibility as he did not examine the patients.
Moreover, how fair is it to demand proof of causation in order to
bring an action in negligence? From a Humean point of view, it is
virtually impossible to have knowledge of such ‘powers’ to make
these ‘counterfactual conditional’ statements. Furthermore, the fact
that the hospital was not medically equipped to provide the
necessary treatment is a failure on their duty to provide a service to
the patients and would, by this fact alone, justify a causal link.
However, it is very rare for hospitals to be held accountable based on
their choice of resource allocation from limited funding. In closing, this
case provides a useful insight into the duty of a doctor and when that
duty comes into effect. In essence, doctors must not presuppose that
examination is the first step in assuming responsibilty of a patient, but
acknowledge that responsibility may be acquired indirectly.