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

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