Duty of Care
To Treat
A doctor who has attended a patient and made a diagnosis has a duty to treat the patient.
Many law suits arise out of failure to communicate and patient's concerns that the doctor did not deal with them directly.
Litigation also invariably arises in the setting where things have gone wrong. For a negligence action to succeed, the plaintiff must be able to show that there has been an injury (loss or damage).
A patient who has recieved care or treatment below a reasonably expected standard would not be successful if they had not suffered a loss as a result of the treatment.
Examples of surgical problems which have been the cause of legal action include:
- The wrong operation was performed
- Surgery more extensive than necessary
- Damage to other tissues and organs
- objects left inside the body
- substandard post-surgical care
Though injury is essential in finding liability, injury does not necessarily mean that treatment has been negligent.
Despite conformity with a standard practice, a doctor may be found negligent if the standard practice itself is found to be negligent.
ter Neuzen v. Korn, [1995] 3 S.C.R. 674
Sopinka J., after quoting from The Law of Torts by Professor John G. Fleming, stated at D.L.R. 591:
"It is evident from the foregoing passage that while conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situations where the standard practice itself may be found to be negligent. However, this will only be where the standard practice is "fraught with obvious risks" such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise."
“The risk reasonably perceived defines the standard required”: Picard & Robertson, Legal Liability of Doctors and Hospitals in Canada, supra at 197, citing Justice Cardozo in Palsgraf v. Long Island Railway Co., 248 N.Y. 339 (1928). In other words, the degree of care required in law is care commensurate with the potential danger to the patient
Ethical Duty to Treat:
In general terms HCPs have been found to have an ethical duty to treat on the grounds of:
- Expressed and implied consent
- Special training
- Reciprocity (social contract view)
- Professional oaths and codes
Recent discussion has focussed on the duty to treat in the face of a serious epidemic/infectious disease such as SARS. Do HCPs have a duty to care for patients when doing so exposes themselves to significant risks of harm and even death?
