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Posted: January 31st, 2023

1. Chris Chan is a world class chef who has been performing in sold out shows around the world where he creates culinary dishes live on stage including demonstrating his famous knife skills where his uses a chef knife to slice and dice food including preparing sashimi dishes.

2. Recently during a sold-out Melbourne show, he demonstrated his knife skills. After the show, he noticed he had cut himself on his right hand. Then the next day, he noticed his hand was painful and swollen and that his right hand was probably infected.

3. Chris visited the Lygon Medical Clinic (LMC). At the LMC, he had a consultation with Doctor Andrew Anderson, an employee of the LMC. Anderson examined Chris’ hand and ordered some blood tests. He also met with a medical colleague from the LMC to agree an appropriate advice for Chris’ condition. He advised Chris to take a course of antibiotics over five days and to return for a follow up appointment in ten days. He also advised that Chris complete the course of antibiotics even if his hand healed in less time. He also advised Chris to rest his hand for at least seven days.

4. Chris took the antibiotic medication according to instructions for three days, after which his hand seemed to have healed and returned to normal function, so he stopped taking the antibiotic medication. Chris returned to the stage three days after his consultation with Dr Anderson and began actively using his right hand again.

5. One month later, Chris returned to the United Kingdom and visited a doctor in London complaining of numbness and lack of feeling in his right hand. After examining his hand and conducting many tests, the London doctor informed Chris: “You should have seen me several weeks ago, I could have saved the use of your hand, but now its too late, you have permanently lost feeling and function in your right hand.”

6. Chris Chan calls your law firm for legal advice. He wants to sue the Lygon Medical Clinic. The managing partner of your Melbourne law firm instructs you to prepare a memorandum advising on the following questions:

• Did Doctor Anderson owe Chris Chan a duty of care?
• Did Doctor Anderson breach his duty of care owed to Chris Chan?
• Does Lygon Medical Clinic owe Chris Chan a duty of care and did they breach it?

REQUIRED

Analyse the following questions using relevant case law and statute law:
a. Did Doctor Anderson owe Chris Chan a duty of care?

Issue: The area of law is Medical Negligence. The question of Law is whether Doctor Anderson owed Chris Chan a duty of care.

Rule:
Rogers v Whitaker [1992] HCA 58; 175 CLR 479: This case established the scope of the duty owed by Australian Doctors to their patients, which included three main elements:
1. The duty of care a doctor owes his/her patient extends to examination, diagnosis and treatment.

2. The standard of care expected of the doctor is that of an ordinary skilled person in that profession. Australia’s High Court has acknowledged that there may be differing opinions about appropriate treatment within the medical profession.

3. Doctors have a duty to warn a patient of a material risk inherent in the proposed treatment.
The standard of care imposed on medical professionals by case law is also reflected in the Wrongs Act 1958 – Division 5: Duty of Care – Section 58 and 59.
According to Section 59 (1), a reasonable standard of care in this field can be established if the professional acted in a manner widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice in the circumstances. This standard is known as “peer professional opinion”.

Application: In Australia, a Doctor/ Patient relationship is considered an established category of duty of care, supported by Precedent (Rogers v Whitaker) and Statute (Wrongs Act: Sections 58 and 59). The scope of the duty of care extends to examination, diagnosis and treatment. The standard of care expected of the doctor is that of an ordinary skilled person in that profession. Doctor’s also have a duty to warn a patient of a material risk inherent in the proposed treatment. Section 59 (1) of the Wrongs Act defines the standard of care as determined by “peer professional opinion”.
In conclusion, Doctor Anderson certainly owed Chris Chan a duty of care, which is defined in detail in both Precedent Case Law and Statute.

b. Did Doctor Anderson breach his duty of care owed to Chris Chan?

Issue: The area of law is Medical Negligence. The question of law is whether Doctor Anderson breached his duty of care owed to Chris Chan.
Rule:
Rogers v Whitaker [1992] HCA 58; 175 CLR 479: This case established the scope of the duty owed by Australian Doctors to their patients, which included three main elements:
• The duty of care a doctor owes his/her patient extends to examination, diagnosis and treatment.

• The standard of care expected of the doctor is that of an ordinary skilled person in that profession. Australia’s high court has acknowledged that there may be differing opinions about appropriate treatment in the medical profession.

• Doctors have a duty to warn a patient of a material risk inherent in the proposed treatment.
The standard of care imposed on medical professionals by case law is also reflected in the Wrongs Act 1958 – Division 5: Duty of Care – Section 58 and 59.
According to Section 59 (1), a reasonable standard of care in this field can be established if the professional acted in a manner widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice in the circumstances. This standard is known as “peer professional opinion”.
Wrongs Act 1958: Duty to warn of risk of provision of a professional service (s 60)

Application:
Doctor Anderson’s consultation with Chris Chan appears to have extended to examination, diagnosis and treatment, the scope of care defined in Rogers v Whitaker. Dr Anderson examined Chris’ hand and ordered blood tests. Dr Anderson also went further, by conferring with a medical colleague from the clinic to agree an appropriate advice for Chris’s condition. In doing so, he likely satisfied the standard of ‘’peer professional opinion” specified in Section 59 (1) of the Wrong Act.
Rogers v Whitaker, together with Section 60 of the Wrongs Act, make it clear that a Doctor has a duty to warn the patient of a material risk inherent in the provision of a professional service. This duty to warn was discharged when Dr Anderson advised Chris to complete the course of antibiotics even if his hand healed in less time. Chris ignored this warning. Dr Anderson also advised Chris to book a follow up appointment in ten days, which Chris also did not do.
It appears that Dr Anderson has carried out his duties diligently and there has been no breach of duty of care on his part. However, even if the Court found there was a breach of duty, Dr Anderson would be able to rely on the Defence of Voluntary Assumption of Risk. Once Dr Anderson warned Chris, the risk became obvious (S. 54 Wrongs Act) and Dr Anderson discharged his duty to warn of a risk (S. 60 Wrongs Act). In addition, the defence of contributory negligence would also be available to Dr Anderson (Division 7 Wrongs Act), potentially defeating the claim.
Conclusion: In conclusion, it is unlikely that Dr Anderson would be liable in Negligence as he appears to have carried out his duties diligently, conferring with colleagues. Chris’ injuries appear to have been caused solely by his failure to follow Dr Anderson’s advice.

C. Did Lygon Medical Clinic owe Chris a duty of care and did they breach it?

Issue: The area of law is Medical Negligence and Vicarious Liability. The question of law is whether the Lygon Medical Clinic is Vicariously liable assuming a breach of Duty of care on the part of Doctor Anderson.
Rule:
Vicarious Liability: Is when someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that the negligent acts took place in the course of their employment.

Cassidy v Ministry of Health [1951] 2 KB 343: A hospital or medical clinic will be vicariously liable for the doctors who practice there, as long as the doctors were chosen and managed by the clinic. The clinic must be the doctor’s employer and some degree of control/ management must be exercised over the doctor.
That the courts recognise that a hospital can generally not delegate its duty of care to the medical professional in its employ is also reflected in the Wrongs Act 1958: Division 6 – Non-Delegable duties and vicarious liability – Section 61 (1):
• In established categories of non-delegable duty (such as hospital/patient), the presumption is that the duty cannot be delegated, so vicarious liability is presumed.

• Vicarious Liability: A non-delegable duty of care will equate to vicarious liability (s 61)

Application:

A stated fact in our case study is that Dr Anderson is an employee of the LMC. Assuming that this employer/ employee relationship involved the clinic exercising some degree of control and management over Dr Anderson’s practice, then Vicarious Liability will be established: Cassidy v Ministry of Health. Additionally, the Wrongs Act S 61 would not permit the clinic to escape Vicarious Liability due to the duties being defined as non-delegable. In established categories of duty of care, the presumption is that the duties cannot be delegated, so Vicarious Liability is presumed.

Our analysis of Dr Anderson’s liability determines that he is likely not liable in Negligence. However, in the event that he is held liable, then it is also likely that the LMC would be Vicariously Liable for Dr Anderson’s Negligence.

In Conclusion, the LMC did owe Chris a duty of care, the LMC is prevented from delegating this duty of care to Dr Anderson by S. 61 of the Wrongs Act. If Dr Anderson is held liable, then the LMC will likely also be held vicariously liable.

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