Tort of Negligence and Patient Information

Paper Summary:

This paper discusses a shift in Australian law towards the rights of the patient as compared to medical standards or the expertise and discretion of the doctor. It focuses on how this shift has created a crisis of insurance and malpractice claims in Australia. The paper presents a hypothetical case study centered on a patient, Rhonda, advised to undergo surgery in order to investigate a possible malignancy situated near the spinal column. The paper then discusses the consent and liability issues that are associated with the case.

Table of Contents:
Introduction
Refusal versus Consent
If Consent was Given
The Hospital's Possible Liability
Defences against Rhonda's Possible Claims
Concluding Remarks

From the Paper:

"An obvious weakness in the Patient's Rights approach which demands that physicians produce all possible information regarding proposed procedures or treatments towards informed patient consent rests in matters of sheer information, the ability of the patient to interpret it, and with doctors relying on the research community as a kind of de facto alibi it is not meant to be in order to reduce their personal liability. One does see the room for sometimes ludicrous results in cases of routine procedures, not to mention in dealings with patients or their guardians of kinds apt to sue opportunistically. Despite altered tort law hoped to remove the worst effects of the medical indemnity and insurance crises it seems likely that conservatism may prevail, for some years, in Australian medicine. As in the U.S. and elsewhere affected by much litigation, a typical response on the part of doctors is to recommend treatments including surgery sparingly."

Sample of Sources Used:

• Bennett, B. (1997). Law and Medicine. Sydney: LBS Information Services.
• Cashman, P. (2000). Tort Reform and the Medical Indemnity Crisis. University of New South Wales Law Journal Forum. 51.
• Darvall, L.W. (1994). Medicine, Law and Social Change - The Impact of Bioethics, Feminism and Rights Movements on Medical Decision-Making. Aldershot: Law Research.
• Dix, A. Et Al. (2004). Law for the Medical Profession in Australia. 2nd edition. Port Melbourne: Butterworth - Heinemann.
• Douglas, S. and E. Lawson. (1986). There's More to Consent than Information. Focus on Critical Care. 43:7.

More papers on Tort of Negligence and Patient Information:

• Analytical Essay # 130172 : "Responses Concerning the Tort of Negligence and Patient Information."
• Term Paper # 125163 : "Tort of Negligence"
• Case Study # 106313 : "Reduction of Errors and Patient Risk in ICU"

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