Underscoring the importance of doctors being aware of the elements of medical negligence, attorney Kamal Ramkarran at a seminar held recently said it is key to this group of caregivers in effectively carrying out their “promise to abstain from doing harm.”
At the Continuing Medical Education seminar three Sundays ago at the National Cultural Centre, Ramkarran, a former member of the medical council, edified doctors on what constitutes the type of negligence with which they ought to be concerned.
He said that three elements must be proved by evidence that satisfies a judge that it was more likely than not that the doctor was negligent. Those elements are—that the doctor had a duty of care, that he breached that duty and as a result, caused damage or loss which should have been foreseen.
Medical negligence has become an increasingly important topic here and several cases have been lodged with the Medical Council of Guyana (MCG). Critics have said that the MCG has been tardy in handling these.
Weighing in on the inescapable relation of law to negligence and how such liability can be grounded, Ramkarran pointed to a number of case law authorities in his quest to explain to the doctors, the factors considered by a court in dispensing with negligence cases.
Quoting a passage from the most authoritative case on the issue, considered in law to be the locus classicus, the lawyer noted that the judge in that case elucidated on the steps to avoiding negligence and to whom a duty of care is owed.
The judge in that particular case declared, “the rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
Simplifying the judge’s pronouncement, Ramkarran explained that when a doctor, who has a duty towards his patient, does something or omits to do something in his treatment of that person which falls short of the standard expected by the medical community of a reasonably competent doctor in that area of practice and, as a result of the doctor’s act or omission, loss or damage results to the patient which is a reasonably foreseeable consequence of the doctor’s act or omission, that doctor is negligent and the patient can recover compensation from the doctor for the loss or damage.
The lawyer explained that a breach of the duty of care of a doctor results when the doctor’s actions fall below the standard expected of him in his profession. Illustrating the point he said, “in his surgical practice, a surgeon is expected to meet the standard of a reasonably competent surgeon whether he has an MBBS, is a Fellow of the Royal College of Surgeons or has a Doctor of Medicine postgraduate degree in surgery.”
“If you practice a specialty, even if the procedure in question was the first time you ventured into that specialty, you’re held to an objective standard expected of all specialists in the area,” the lawyer further explained.
He clarified that the standard cannot be subjective based on “how good you are.” Everyone who practices in a particular area he said, must be held to the same objective standard regardless of the variance in their skills.
Examining the third element, Ramkarran said that for negligence to be established there must be damage or loss suffered which was caused by the breach of duty of the doctor and such damage or loss must be a reasonably foreseeable consequence of the breach of duty.
On this point he explained that a doctor may have had a duty to his patient and may have failed to reach the standard expected of a reasonably competent doctor yet the damage or loss complained of by the patient was neither caused by the doctor’s negligence nor was a reasonably foreseeable consequence of the doctor’s negligence.
Unless the patient can prove both elements in addition to the others, he cannot recover compensation from the doctor, Ramkarran clarified.
Every doctor he said, has a duty to exercise reasonable care and skill in diagnosis, advice and treatment of their patients.
Citing a case, he noted, “If a person holds himself out as possessing special skill and knowledge, and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward.”
Examining the question of when a person actually becomes a patient, thus giving rise to the doctor’s full duty of care, Ramkarran explained that this duty can arise as soon as patients present themselves for treatment, even before they are examined by a doctor.
Referencing a 1960s case law which developed precedent that is followed by courts today, Ramkarran said that three men had shown up at an emergency department vomiting. The nurse telephoned the doctor on duty and told him what was happening. The doctor told her to tell them to go home and call their own doctors. Several hours later they died of arsenic poisoning
He said that the judge who heard the case said he had no doubt that the doctor had a duty towards the men to exercise such skill and care expected of a person in his position acting reasonably. He breached that duty in failing to examine the men.
Noting that the yesteryear of unquestioning respect for people like doctors and lawyers simply because of their profession, no longer exists, Ramkarran said it is now of vital importance that such professionals know the elements of negligence, or malpractice as it is also called, and how it affects their professions.
He said that in addition, patients now have access to information at the click of a mouse which, just about twenty-five years ago, was only available in specialized encyclopedias. Patients and their relatives he added, now look carefully at every decision made by a doctor in treating them and are justifiably not satisfied unless full explanations are given.
