EXTRACTS-
UNREPORTED SOUTH AUSTRALIAN
MAGISTRATES COURT DECISIONS

H v S

PART 6

THE EMERGENT DUTY OF CARE

When the critical nexes are present, a duty of care emerges.

Whether or not a duty of care exists depends upon whether or not there is evidence of sufficient weight which establishes the existence of common features, and whether the nexes between the common features are not only present but capable of supporting a duty of care.

The evidence affects not only the existence of the four common features and the four nexes but also describes the nature of each. The nature of each will ultimately determine the nature and scope of the duty of care. Evidence is infinite in variety. As a result, there is infinite variety in the nature and scope of duties of care which may emerge.

Only the relevant aspects of the nature and of the particular duty of care are described and considered in the cases. It is both unnecessary and impossible to define and enumerate every single aspect of the nature of an emergent duty, relevant and irrelevant, but in some cases it is very clear that the duty is of such a nature that there is (or there is not) a duty of care which applies to the situation before the court.

Professional services and the duty of care

This is a case where the nexus between the defendant and the plaintiff is so close, and so strong, that it is well established, as a matter of law, that a general duty of care is owed by the defendant to the plaintiff. The existence of the duty is clear from the general features of the class to which each of the parties belonged. The defendant operated a hospital. The plaintiff was a patient in the defendant's hospital.

The hospital - patient relationship is a relationship which gives rise to a duty of care. The hospital undertakes to provide a service whenever a patient is admitted. The hospital has a duty to exercise reasonable skill and care when it provides the service. The service is a professional service.

Speaking about the duty of care owed by an architect, in Voli v Shire of Inglewood Mr. Justice Windeyer said, of the duty of care which arises when professional services are rendered:

"That duty is cast upon him by law, not because he made a contract, but because he entered upon the work."

While the general nature of the duty can be ascertained from the identification of the classes to which the parties belong, this is not the only factor which determines the nature and scope of the particular duty which is owed. On occasion the general duty is modified by reason of factors peculiar to the parties, or peculiar to the relationship between the plaintiff and the defendant. It is not enough merely to recognise that a general duty exists.

Once a general duty arises, then it must be ascertained whether conduct of the defendant amounts to an act or omission which falls within the nature and scope of the particular duty which is owed, by the defendant, to the plaintiff, in the case which is before the court. Allbrighton is a case where the nature of the services undertaken brought the material acts within the nature and scope of the particular duty owed by the defendant.

It must also be ascertained whether the plaintiff's loss falls within the nature and scope of the particular duty. The magnitude of the loss (three million dollars) was a critical factor in the final determination of the nature and scope of the duty owed by the general practitioner in Lowns v Woods. However, it is a dangerous case to rely upon outside the ambit of its own peculiar facts. The general practitioner was not believed on certain highly material points. A specialist (consulted in advance of the attack of epilepsy which left a child with severe permanent brain damage) was found not to have been negligent in failing to tell the child's parents about the medication which ought to be administered as quickly as possible if another attack occurred.

Barnett v Chelsea and Kensington Hospital is an example of insufficient connection between act/omission and loss taking otherwise negligent conduct outside the scope of the duty which was owed. A doctor was called but he negligently failed to attend to see the patient who had attended at a hospital casualty clinic. Even if he had seen the patient, the patient would still have died before diagnosis of arsenic poisoning could have been made and the appropriate treatment given.

Until it is proved that the four common features, and the nexes between them, come within the nature and scope of the duty of care in the particular case, the question of the standard of care is immaterial. The question of the standard of care does not arise when there is no duty to be breached.

In this case, the relationship between the plaintiff and the defendant is the primary determinant of the nature and the scope of the duty that is owed. In this case, to use the phrase coined by Mr. Justice Deane in Sutherland v Heyman, the contractual relationship between the parties creates "circumstantial proximity". The nature and scope of the duty of care is affected by this contractual relationship.

Hospital services are not the only professional services where the nature and scope of the particular duty of care depend upon the terms of a contract between the parties.

In relation to an architect, it was said:

"...His contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it."
Windeyer J, Voli v Shire of Inglewood

In 1995, Voli was followed, in a case where the defendant was a builder:

"The fact that the law recognizes the existence of concurrent duties in contract and tort does not mean that the existence of a contractual relationship is irrelevant to either the existence of a relationship of proximity or the content of a duty of care under the ordinary law of negligence. In some circumstances, the existence of a contract will provide the occasion for, and constitute a factor favouring the recognition of, a relationship of proximity either between the parties to the contract or between one or both of those parties and a third person. In other circumstances, the contents of a contract may militate against recognition of a relationship of proximity under the ordinary law of negligence or confine, or even exclude the existence of, a relevant duty of care."
Bryan v Maloney, Mason CJ, Deane and Gaudron JJ

Mr. Justice Deane made remarks to the same effect in Hawkins v Clayton, in respect of professional services rendered by a firm of solicitors.

The hospital-patient contract and the contract to provide medical services

In Allbrighton v Royal Alfred Hospital, it was pointed out that the nature and scope of the duty of care owed by a hospital, to the patient, is not the same in every case. For example, a hospital may be under a duty to provide skilled nursing care, or it may be under a duty to provide the services of a skilled nurse. In this case, from the outset, the defendant explicitly undertook to provide "respite care".

Mr. Justice Mason, in Commonwealth v Introvigne, in the course of determining the nature and scope of any duty of care owed by the Commonwealth to students at a Canberra school, looked to the general hospital-patient duty for guidance. He referred to the duty arising from the contractual nature of the relationship (paragraph 28 et seq):

"The duty thereby imposed on a school authority is akin to that owed by a hospital to its patient. As Lord Greene M.R. observed in Gold v. Essex County Council (1942) 2 KB 293, at p 304 , the liability of the hospital arises out of an obligation to use reasonable care in treatment, the performance of which cannot be delegated to someone else, not even to a doctor or surgeon under contract for service...
Fleming, Law of Torts, 5th ed. (1977), p. 361 makes the point that the uncontrollability of professionals in the performance of their tasks is no longer a bar to recovery, certainly so long as they are part of the hospital organization and are not employed by the patient himself. If, as I have indicated, liability on the part of the hospital is for breach of a "personal" duty to which the hospital authority is subject, then the distinction between servant and independent contractor is immaterial."

It is clear from these cases that it is necessary to look at more than the purpose of the admission when considering the nature and the scope of the duty of care owed in the particular case.

Contractual terms which render the patient dependent upon the hospital expand the nature and scope of the duty of care owed to the patient by the hospital. Such terms expand the nature and scope of the duty of care in the same way as reliance expands the nature and scope of the duty of care in cases of negligent misstatement, another situation where the nature of the relationship is such that one party is dependent upon the other. The expanded duty includes medical services.

A contractual term does not merely "induce" one party to act or refrain from acting in a particular manner (as occurs when there is reliance on a negligent misrepresentation). A contractual term means one party can force the other party to act or refrain from acting in a particular manner.

Where the contractual term renders one of the parties completely dependent upon the other, this greatly expands the nature and scope of the duty of care that is owed in addition to the contractual duty to perform the service. If a term effectively excludes competitors otherwise capable of providing some or all of the necessary services during the period of service provision, this contractual specification of how the service is to be provided expands the nature and scope of the duty of care, as it did in Allbrighton.

In Allbrighton, the contract between the parties determined the service to be provided, and in addition it specified that the services were to be provided by staff chosen by the hospital.

Mrs. Allbrighton signed a document which was clearly contractual in nature, "consenting" to her medical care being provided by doctors chosen by the Royal Alfred Hospital . It was this term which resulted in the expansion of the nature and scope of the duty of care the Royal Alfred Hospital owed to Mrs. Allbrighton.

The nature and scope of the duty was expanded to the point where there was no doubt that the duty encompassed the actions/omissions of doctors as well as the actions/omissions of nurses and other hospital employees already within the scope of the duty.

This case is similar to Allbrighton, in that all medical services were to provided by the defendant hospital, using medical staff of its choosing.

Rogers v Whitaker, Tottenham v Battersby and F. v R. are cases concerned with provision of medical services, but care has to be taken when using them in the circumstances of this case. In all of those cases, the defendant was a doctor, not a hospital. Nothing in any of the judgements suggests that the doctor was chosen by anyone other than the patient. In all of those case, the services provided either involved surgery or use of dangerous drugs in dangerous quantities in an attempt to effect a cure of a condition (which was not incurable, but which had proved impossible to cure by any other method).

All of these differences mean that the duty of care under consideration in each of those cases was of a very different nature to the duty of care arising out of the relationship between the parties in this case, where the defendant is a hospital not a doctor, the patient had no choice of doctor or nurse, and the doctor, to alleviate symptoms of chronic illnesses, was prescribing appropriate dosages of appropriate medications.

The question of whether or not the necessary standard of care had been exercised during patient-doctor interaction was a central issue in Rogers v Whitaker, Tottenham v Battersby and F. v R., but in this case there is no issue about the events which occurred during patient-doctor interaction .

Despite superficial factual similarity, the three cases give little guidance as to the nature and the scope of the duty of care that cannot be more clearly ascertained from other judgements.

The contract for provision of medical services has recently been considered in the High Court, in Breen v Williams, a decision delivered in the High Court in September of this year [1996]. There, the court was concerned with the doctor-patient relationship and the ownership and use of records of information collected during the relationship. Terms normally implied in the doctor-patient contract were considered.

I indicated, during the defendant's address, that I was of the view that the plaintiff-defendant contract was a relevant consideration in the case before me. I made a copy of the judgement in Breen v Williams available to both counsel, but neither counsel referred to the decision during the course of the addresses in the case before me.

In Breen v Williams, Chief Justice Brennan said:

"In the absence of special contract between a doctor and a patient, the doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care. The consideration for the undertaking may be either a payment, or promise of payment, of reward or submission by the patient, or an undertaking by the patient to submit, to the treatment proposed. A duty, similar to the duty binding on the doctor by contract, is imposed on the doctor by the law of torts. The advice and treatment required to fulfil either duty depends on the history and condition of the patient, the facilities available and all the other circumstances of the case.
The provision of advice and treatment with reasonable skill and care may not exhaust the duty of the doctor. Unless the contract between doctor and patient is especially restricted, the doctor's obligation is to maintain or improve the health of the patient generally and to use reasonable skill and care in doing so, even though the advice or treatment required on a particular occasion is in a specialist field or is to be provided only on that occasion or for a limited time. The patient may be thought of as made of many parts some one of which may need treatment at a given time, but the patient is nonetheless an entirety whose life spans, or hopefully spans, the ills or disease of each moment. Once it is perceived that the duty of the doctor is owed to the patient as an entirety, it is not appropriate to assume that the duty is discharged merely by the giving of advice or treatment on the particular occasion."

The same terms are implied terms in the contract between the parties in this case.

The defendant's obligation was to maintain or improve the health of the plaintiff, and to exercise reasonable skill and care in doing so, for so long as the plaintiff was a patient in the defendant's hospital. The defendant's obligation to provide medical care could not be discharged purely by giving Dr. M the opportunity to see the plaintiff, and prescribe medication, on December 5, 1992.

The defendant's duty was to provide the plaintiff with accomodation and medical care, and to exercise reasonable skill and care in doing so.

This meant providing advice and treatment for a patient with several chronic medical conditions; a patient with a history of recent deterioration of the chronic airways condition; a patient who was not permitted access to any other medical care (including not only the services provided by a doctor but also services of the kind provided by a registered nurse) while the plaintiff was a patient in the defendant's hospital.

All of this information was either known to the defendant or ought to have been known by the defendant, from the time when the initial contact was made with the defendant by staff at the R Hospital. All of this information ought to have been communicated by the defendant to the professional staff whom it employed to deliver specific medical services to/for the plaintiff, for it was information the staff needed in order to provide medical advice and medical treament.

The "available facilities" included clerical staff, enrolled and registered nursing staff and a part-time doctor always available on short notice, in a hospital able to provide "respite care" and "convalescent" care but not care for "acute" patients so ill as to require immediate hospitalisation in a major public hospital. A major public hospital has far more facilities, including full time medical staff, ready access to the advice of a wide range of specialist medical consultants and specialised equipment used by staff to diagnose medical conditions which are too difficult to diagnose by using only the patient's history and clinical systems as the basis for diagnosis.

Professional decisions

The provision of medical care includes not only confirming diagnoses and prescribing medication but also acquiring information for the purpose of advising or treating the patient, whether the advice and treatment is provided by a doctor or whether it is provided by a registered nurse.

It was information about the disease rather than information about the patient, but the question of the information which ought to have been known to the defendant was critical in E v The Red Cross, a decision as to whether (at a particular point in time) the defendant ought to have taken steps to ensure that blood in its blood banks was not contaminated by the HIV virus which causes Acquired Immune Deficiency Syndrome (AIDS). The plaintiff had suffered HIV infection as a result of a blood transfusion of contaminated blood from the defendant's blood bank. It was held that the defendant was not liable, by reason of the state of medical knowledge at the material time.

As to information, in the context of the contract for provision of medical services, in Breen v Williams Chief Justice Brennan said:

"In some situations, there may be a duty to provide to the patient or to the patient's nominee information which the doctor has acquired in the course or for the purpose of advising or treating the patient. That is information received or otherwise acquired by the doctor pursuant to an authority given -expressly or impliedly - by the patient for the purpose of enabling the doctor to perform the doctor's contractual duty to maintain or improve the health of the patient generally...When the future medical treatment or physical or mental wellbeing of a patient might be prejudiced by an absence of information about the history or condition or treatment of the patient on an earlier occasion, the doctor who has acquired that information for the benefit of the patient's health must make it available to avoid or diminish that prejudice. Such an obligation is implied by the doctor's acceptance of the patient's authority under the contract to obtain that information. The authority is given in order to benefit the patient's health generally; the authority must be accepted and acted upon for the same purpose. As the obligation is implied, it can be excluded by express provision.
The obligation is not unqualified. As it arises from and is conditioned by the doctor's duty to benefit the patient's health generally, the obligation falls to be discharged only when the patient's health would or might be prejudiced by refusing to make the information available...
For these reasons, I would hold that information with respect to a patient's history, condition or treatment obtained by a doctor in the course or for the purpose of giving advice or treatment to the patient must be disclosed by the doctor to the patient or the patient's nominee on request when (1) refusal to make the disclosure requested might prejudice the general health of the patient, (2) the request for disclosure is reasonable having regard to all the circumstances and (3) reasonable reward for the service of disclosure is tendered or assured. A similar duty may be imposed on the doctor by the law of torts but, in particular situations, for example, some emergency treatments, the relationship between doctor and patient may not give rise to a duty that extends so far. It is not necessary now to consider that problem."

Where there is no common employment, one provider of medical services is placed under a duty to communicate information about the patient to another provider of medical services where the information is needed in order to promote the health of the patient, within the parameters spelt out by Chief Justice Brennan. It follows that there is a duty to obtain sufficient information about history, condition and treatment, before advising or treating a patient, if the specific medical service is to be rendered with reasonable skill and care.

It must also follow that where there is common employment, the provider of medical services has a duty to ensure that the information given to one of its servants or agents is available to other servants or agents who need it in order to promote the health of the patient. This can only be achieved if the information is obtained and accurately communicated.

Where a hospital has undertaken to provide all medical services to the patient, (whether individual services are provided through a doctor or through a registered nurse), it follows that there is a duty to obtain and communicate the information as to the patient's history, condition and treatment which is needed in order for the hospital's doctors and nurses to be able to deliver specific medical services to the patient, and for the hospital's doctors and nurses to be able to exercise the reasonable skill and care expected of competent doctors and nurses when they do so.

This duty is a duty placed on the person who is the provider of the medical services. An employee delivering specific medical services can only be required to exercise such skill and care, with respect to delivery of the particular service, as is reasonable in the circumstances.

The level of skill required for delivery of specific services will vary. Prescribing medication requires different skills to the skills required in relation to the dispensing of prescribed medication: in the former, the level of skill is the level of a reasonably competent doctor and in the latter it is the level of the reasonably competent nurse. Both skills must be exercised with reasonable care, and reasonable care must include ensuring that professional judgements are made on the basis of as much accurate information as is "reasonable". In an emergency, there is often little opportunity to obtain relevant information before it becomes necessary to make professional decisions. It is reasonable to act on the basis of less information about the patient's history, condition and treatment than would be reasonable if the patient's acute condition did not constrain the time available for acquisition of relevant information. The critical factor is that the constraint is linked to the patient and the patient's condition.

It is not the case that the obtaining and recording of accurate and adequate information has to be entirely carried out by professional staff, thereby diverting them from direct patient care, if the obtaining and recording of some or all of the information does not require professional expertise, provided that a system of supervision ensures that the information is both reasonably accurate and adequate for the professional purposes for which it is obtained. There will always be some information which a patient cannot provide and some information which cannot be relied upon if the patient is the source of the information.

One of the few cases which concerns the making of professional decisions is a case which has stood the test of time for more than sixty years.

In respect of the making of professional decisions by judges and magistrates, House v R identified five sources of potential error:

In my view the provider of complete medical services has a duty to exercise reasonable skill and care to ensure that its staff, when they are making professional decisions as to advice and treatment, are able make these decisions on the basis of accurate facts concerning the patient's history, condition and treatment, taking into account as many material considerations as may be reasonable, and without being affected by extraneous or irrelevant matters.

If the circumstances in which the medical staff work require them to make decisions with respect to advice and treatment on the basis of information which is less than accurate, or on the basis of less than a reasonable amount of information, for reasons unrelated to the patient, then the medical staff are not taking into account material considerations and they are being affected by extraneous matters when they are making professional decisions.

It is the duty of the defendant to ensure that this does not occur, for it controls the circumstances in which the medical staff are making professional decisions, just as in Abalos the design of the work stations was controlled by the Australian Postal Commission, not the supervisors supervising employees performing tasks at the work stations. In Abalos, the supervisors were unable to do more than modify work practices to circumvent the dangers the work stations presented:

"...More extensive supervision would not have eliminated the risk of injury but it might have reduced it."
Abalos v Australian Postal Commission, McHugh J

In Abalos, it was never argued, or found at first instance, that the defendant was under a duty to totally redesign the work stations and the work system; possibly this was seen by counsel as outside the scope of the duty of care having regard to the magnitude of the risk and the expense and difficulty of alleviating the risk.

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