Duty of Care/Standard of Care

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Duty of Care/Standard of Care

• Barbara Barrowman
• Andrew Latus
• Jan. 6, 2003

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Outline

• Concepts
• Why do these concepts matter?
• Negligence
• Duty of Care
• When does a duty of care exist?
• Standard of Care
• Differing standards for differing roles?

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Concepts

• Duty of Care
• 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
• 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)

4
The Law of Negligence

• The concepts of duty of care and standard of care
  are clearly central to the proper practice of
  medicine.
• There is also a very practical reason for taking
  these concepts seriously, namely, their
  significance where accusations of negligence are
  concerned.
• Negligence
• 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

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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
• A session during the ISD course will address the
  topic of negligence more fully.

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When Does a Duty of Care Exist?

• Once doctor-patient relationship is established,
  duty of care arises
• When is a doctor-patient relationship
  established?
• Duty of care beyond existing doctor-patient
  relationship?
• Emergencies
• Duty to third parties

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Creating a Doctor/Patient Relationship

• 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 physicians right
  to refuse to accept a patient for legitimate
  reasons. (CMA Code of Ethics s. 7)

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Terminating Doctor-Patient Relationships

• May be terminated by patient, or in certain
  situations by doctor
• Where doctor wishes to terminate relationship,
  there are specific requirements to protect
  patients interests (will be discussed in future
  session)
• See also material from session on difficult
  patients

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Limitations on Duty of Care

• Request from patient
• may raise questions of patient competence
• Medical futility
• Both these topics are complex and will be left
  aside for a later session

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Case Is there a Duty of Care?

• 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
  doesnt work, an acid-reducing medication.
• Later that week, the nurses husband goes to
  emergency with his heartburn tests reveal
  unstable angina and he is admitted for treatment.
• Did Dr. Rowe have a duty of care towards the
  nurses husband?

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Discussion

• Courts are likely to find duty of care wherever
  its 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.

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Case Duty of Care in Emergencies?

• 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 husbands not breathing.
• Is there an ethical duty of care in this
  situation?
• Is there a legal duty of care in this situation?

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Case Duty of Care in Emergencies?

• 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.
• 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.
• Is there an ethical duty of care in this
  situation?
• Is there a legal duty of care in this situation?

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Duty of Care in Emergencies

• Most agree that an ethical duty exists
• 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
• 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)

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Good Samaritan Legislation

• If we accept the existence of an ethical duty of
  care in emergency situations, this raises
  concerns about the physicians ability to provide
  an adequate standard of care.
• 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

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Duty to Third Parties

• Duty to warn where risk of harm to third parties
• Foreseeable MVAs
• 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

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Case Standard of Care

• 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?

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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)
• 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

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Case Standard of Care House Staff

• 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.
• Dr. Sharp says Joe, you can do this one if Mrs.
  Barrett agrees. Mrs. Barrett replies, Sure,
  thats fine with me.
• Does this case raise any concerns about standard
  of care?

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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)
• 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

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Case Standard of Care Constraints

• 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
  CTs,MRIs and specialists
• What does an adequate standard of care require?

22
Standard of Care - Locale Facilities

• 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

23
Standard of Care - Cost Constraints

• 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 - doctors responsibility to
  individual patient takes precedence over
  responsibility to medicare system