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20 Medico-legal questions

Question 1: Allegations of negligence

A 50-year-old woman had an elective cholecystectomy. She experienced complicationsand was frustrated by the lack of information given to her by the surgeon after the surgery.She launched a legal action. What principle of law was the claim likely based on? Choose

the best answer:

A) Breach of fiduciary duty in the doctor-patient relationship

B) Failure to provide value for the taxes she paid into the health care system

C) Negligence or civil liability (fault) related to the performance of the surgery

D) Breach of contract

E) Assault and battery related to the failure to obtain informed consent

The answer to this question is: C

Allegations of negligence

The majority of legal actions brought against physicians are based on a claim of negligence.

Four elements must be established or proven for any legal action based upon a claimof negligence to be successful:

1. There must be a duty of care owed toward the patient.2. There must be a breach of the duty of care.3. The patient must have suffered harm or injury.

4. The harm or injury must be directly related or caused by the breach of the dutyof care.

Allegations of negligence extend not only to acts the physician is said to havecommited in error, but also to steps it is suggested the physician should have taken butfailed to take.

A duty of care may exist when an individual can reasonably be expected to rely on the

advice or actions of a physician.

In Québec, although the concept of duty of care isnot an element of civil liability, it does find its

equivalent in the civil law analysis. As in other provinces, certain duties arise out of the doctor-patient relationship. A physician thus has a duty to

abide by the rules of conduct or standardsappropriate to the circumstances.

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In determining whether a physician has breached a duty of care toward a patient, thecourts consider the standard of care and skill that might reasonably have been applied

by a colleague in similar circumstances. The appropriate measure is therefore the levelof reasonableness and not a standard of perfection.

The courts have also recognized that it is easy to be wise in hindsight, therefore theymust guard against judging a physician in retrospect.

It is important that the appropriate standard be determined with reference both to thecircumstances and what a reasonable standard of care would have been at the time of the alleged negligent care. The court ascertains this reasonable standard by means of 

evidence given by experts at trial.

English

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