Doctor’s Duty in Emergencies
Introduction
In a well-publicised case, Woods v Lowns Procopis & Anor [1], a general practitioner was found liable under the law of negligence for not attending a child suffering from status epilepticus at home. The child had not been a patient of the GP.
Patrick Woods subsequently suffered severe neurologic impairment. His sister allegedly sought the assistance of a general practitioner, Dr. Lowns, who (she said) refused to attend the patient. At the time of the request, Dr. Lowns was at his home surgery, perceivably ready for the day’s practice, but his receptionist had not arrived.
At the trial, Dr. Lowns conceded that he would have responded to a stranger in an emergency if he had been requested to do so. However, on the issue of facts, Badgery-Parker J preferred the evidence of the sister of the patient, who identified Dr. Lowns as the GP she had approached for assistance . Dr. Lowns failed in his defence based on a mistaken identity.
The issue turned to the law on the existence of duty of care. His Honour acknowledged that there was hitherto no duty under negligence law to assist a person in peril even if it were foreseeable that the consequence of a failure to assist would lead to the injury of the person imperilled. By reasons of legal “proximity” (see below), the judge held that there was now, in certain circumstances, a duty of care for a doctor “in a professional context” to attend to a stranger in an emergency.
The decision of the trial judge was upheld by the NSW Court of Appeal [2], and the parties settled out of court before an application for special leave to appeal to the High Court was heard. What practical implications does this case have on the professional life of a doctor? This paper analyses the reasoning behind the judgments to seek an answer.
The Reasons Behind the Judgments
His Honour acknowledged that s27(1)(h) of the Medical Practitioners Act 1938 (then in force) provides that “professional misconduct” includes the refusal or failure of a medical practitioner to attend an emergency without reasonable cause. He held as a matter of law, and on the basis of precedents [3], that a breach of such a statutory provision on its own would not give rise to a civil action. Liability could be found under the general law relating to tort.
By definition, tort is a civil wrong outside contract. As part of tort, negligence law is based on the principle of neighbourly duty [4]. It is separate from the law of contract in that, in contract, “consideration” usually in the form of a fee is an essential element. The law of negligence dictates that, irrespective of a contractual agreement to treat, a doctor has a neighbourly duty of care to his patient. But the law had not imposed this duty on non-patients.
So who is my “neighbour” at law? The trial judge relied on the two rules laid down in three High Court judgments[5]: there must exist a sufficiently “proximate relationship” between the plaintiff and the defendant, and that the injury must have been reasonably foreseeable by the defendant. His Honour proceeded to hold that proximate relationship existed between Dr. Lowns and Woods on the following bases [6]:
- There was physical proximity in that the doctor was a mere 300 metre and within three or four minutes walk from Woods;
- There was causal proximity in that the doctor was aware of a major medical emergency, he knew what treatment was appropriate and that he knew what the consequence would be if he did not render the treatment; and
- There was circumstantial proximity in that the doctor “was at his place of practice (‘in a professional context’), ready to begin his day’s work and not yet occupied in any other professional activity which would have precluded his treating the plaintiff”.
His Honour added a public interest argument, to the effect that the relevant provision of the Medical Practitioners Act suggested a community expectation of members of the medical profession, and that the (general) law should match community expectations. Furthermore, “what was asked of the defendant involved no health or safety risk to himself; and he was not disabled by any physical or mental condition …”.
The Court of Appeal upheld the judgment by two to one. Cole JA supported the jurisprudence expressed by the trial judge. Kirby P added that the standard requiring a doctor to attend in an emergency is a high standard which goes beyond what is expected of other professions, but that standard is the rule expressed by parliament in the Medical Practitioners Act, accepted by the organised medical profession, and acknowledged and not contested by the defendant.
The Jurisdictions To Which The Judgment Is Applicable.
The doctrine on the law of precedents (stare decisis) mandates that as NSW Court of Appeal is the highest state court of appeal, its decision is binding on all NSW state courts.
While its decision is not binding on any other state or on federal court, the status of the NSW Court of Appeal is such that its decision is authoritative and highly persuasive to all other courts in Australia. It may even proved persuasive to courts in jurisdictions overseas with a common law system similar to ours. A trial judge in any other Australian jurisdiction would be brave indeed to depart from the rule decided by the NSW Court of Appeal in Lowns.
Implications to Practitioners
The judgments relating to the duty of care may not unduly concern the medical profession. However, practitioners should be beware that the limits of the duty are not fully defined. “Professional context” as a guide to legal proximity is not yet fully tested by the courts.
Dr. Lowns might have been available and ready to start his practice for the day, but when he was called by Patrick’s sister, he was arguably still at his home and not at his surgery; his receptionist had not arrived, he had not started his day’s practice. When then does “professional context” come into existence?
What about a doctor in hospital who is about to leave at the end of his roster? Badgery-Parker J quoted with approval the view of academic writers Kennedy & Grubb that, in such circumstance, a doctor has a common law duty of care to attend to an emergency [7].
It seems that His Honour accepted that a doctor who is not on duty and incognito would not have a common law duty of care to attend an urgent call; thus a doctor attending a theatre would not need to respond to a call “is there a doctor in the house ?”. It is questionable if the Medical Practice Act (NSW) would apply under this circumstance.
What about a doctor, while not on duty, who is not incognito, such as when he dines in a restaurant, having made his table reservation in the name of a doctor, or a passenger in flight who has made known to the attendants by his flight ticket that he is a medical doctor, or a doctor simply having a Sunday afternoon drive in a car bearing a doctor’s badge? Could “professional context” reach a doctor in these three circumstances? It may be argued that that while he might not be practising medicine at the time, he is holding out to the world that he is a medical practitioner and impliedly willing to act as one.
Conclusion
Irrespective of the law, practitioners should have no difficulty in discharging their moral obligations to an urgent call. Practitioners should perhaps take care regarding circumstances in which they would hold themselves out as doctors less they find themselves in a “professional context”.
Lastly, practitioners should be aware that we are under several separate legal duties to our patients, and that the jurisprudence grounding such duties are discreet and different. In particular, civil wrong under negligence law is to be distinguished from a breach of contract. Under normal circumstances, irrespective of contract, a neighbourly duty of care may well exist from the very moment a patient steps into a doctor’s surgery, and that duty must be discharged at the reasonable standard demanded by community values and enforced by the law of negligence. Contract law is not invoked when no fee is payable by the patient, yet the tort law applies in full force.
References:
- Woods v Lowns, Procopis & Anor NSW Supreme Court (Unreported, 9 February 1995).
- Lowns and Procopis v Woods NSW Court of Appeal (Unreported, 2 February 1996).
- Woods v Lowns (supra) p.53.
- Donoghue v Stevenson [1932] AC 562.
- Jaensch v Coffey (1984) 155 CLR 459,
Sutherland v Heyman (1985) 157 CLR 424,
Cook v Cook (1986) 162 CLR 376.
- Woods v Lowns (supra) p.61.
- Ibid p.57.
MBBS(Syd),FRCSEd.,FRACS.,Dip.Law (Barristers Admission Board)
Chairman
United Medical Defence
(26 June 1996)