liability / responsibility and duty/standard of care

Plaintiff must establish, on the balance of probabilities, that:
• The defendant (doctor/health care provider) owed a duty of care
o What is a duty of care
 In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a reasonable standard of care while performing any acts that could foreseeably harm others
o What makes the doctor owe a duty of care (VIC)
 Where a doctor agrees to treat a patient or commences to treat a patient.
 Occurs both where a patient expressively or implicatively agrees to be treated and to patients who are unable to agree to treatment (unconscious, mental illness – not of sound mind)
o Did Josh owe a duty of care?
• The defendant failed to meet the standard of reasonable care
o Was there a breach of duty of care and why
 The standard of reasonable skill and care required is that of the ordinary skilled person exercising and professing to have that special skill.
 That standard is peer-assessed
 For junior doctors: An inexperienced junior doctor will be judged according to the standard of a reasonably competent medical practitioner in a particular are of medical expertise. Junior doctors are rarely assigned to complex procedures – however if a junior doctor is found in a situation which is beyond his competence, the fault lies not so much in not having the skills, which he does not possess, but in undertaking the task at all.
 In such situations – obligation to consult more experienced physicians – judged by their standard of care.
 “If a doctor lacks a minimum competence to carry out a particular procedure but it is proper for him to be present then whatever he does must be done under the supervision of the experienced doctor. The negligence if any will now be that of the experienced doctor for failure to supervise.”
o Did Josh fail to meet the duty of care?
• The breach caused the plaintiff’s injuries (causation-covered in rushmis section)
o Did Josh’s actions cause injury
• The injury/loss was reasonably foreseeable
o What makes a loss foreseeable
 Insignificant risks include, but are not limited to, risks that are far-fetched or fanciful
 Inherent risks are defined as risks that cannot be avoided by the exercise of reasonable care. Liability for injuries occasioned as a result of the materialisation of an inherent risk is specifically excluded.
 Severity of injury/loss vs likelihood of injury/loss
o Was the injury a foreseeable risk?