When should medics be liable for their practice? (Part five)

What about the standard of care?

This is a carefully researched and penned article on one of the hot subjects in the field of law and medicine—medical malpractice. It is in seven parts to enable the reader keep track of its flow

By Isaac Bizumuremyi

The first court-given meaning of the term “standard” was in the leading English case of Lanpkier v. Phipos, in which Justice Tindal C. stated that

“Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake to use the highest degree of skill. There may be persons who have greater education and greater advantage than he has, but he undertakes to bring a fair, reasonable, and competent degree of skill....”

Further to this definition, in the case of James v. Crockett, the Court held that "a medical man does not in point of law guarantee the recovery of his patient".

The preceding court decision should probably address some patients’ dissatisfaction to the extent of filing lawsuits for damages on the basis that some doctors wrongly diagnosed their medical condition which led the patient to receive the wrong treatment altogether.

Such was the situation in the case of Wilson v. Swanson in which a doctor mistakenly diagnosed his patient's illness as cancer.

During a subsequent operation, the doctor removed what he thought to be cancerous organs.

Further tests revealed that the patient did not suffer from cancer.

When the patient sued the doctor, Justice Land of the Supreme Court of Canada held that:

“An error in judgment has long been distinguished from an act of unskillfulness or carelessness or due to lack of knowledge. In such a situation a decision must be made without delay based on limited known and unknown factors; and the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation”

In brief, a mere wrong diagnosis of a medical condition is not medical malpractice, and the doctor is not liable for negligence if reasonable care was exercised.

Furthermore, a medical professional can only be held liable for medical malpractice if the claimant has been able to establish the causal link between the negligent behaviour of the physician and the damage suffered.

In Belgium and France, it is up to the patient to establish that the physician’s fault was a sine qua non for the loss and in addition, the causal relationship needs to be established with certainty.

Where the physician had to achieve a specific result, liability will follow for not achieving the result unless he can prove the existence of an unknown cause such as force majeure, fault of a third party or fault of the patient.

The doctor simply promises to use reasonable skill and care, and this standard will be applied whether the doctor acted gratuitously or not.

This was further stressed in the 2005 opinion of the UK’s House of Lords in the case Gregg v. Scott by Lord Nicholls of Birkenhead who stated that:

“But the outcome of medical treatment in any particular case remains beyond anyone’s control. It is often a matter of considerable uncertainty, in some types of cases more than others. Doctors cannot guarantee outcomes”

This opinion followed a decision of the Supreme Court of South Carolina (USA) in the 1995 case of McCourt by and Through McCourt v. Abernathy in which Justice Shaw stated that:

“Negligence may not be inferred from a bad result. Our law says that a physician is not an insurer of health, and a physician is not required to guarantee results. He undertakes only to meet the standard of skill possessed generally by others practicing in his field under similar circumstances”

The purpose of the professional duty is simply to promote the patient’s prospects of recovery by exercising due skill and care in diagnosing and treating the patient’s condition.

In Mercier case, a French Court of Cassation also held that “a contract between a physician and his patient results in an obligation not to cure the patient but to offer him medical help conscientiously and attentively, in conformity with the data and advances of medical science.”

The Author, Isaac Bizumuremyi, is Managing Partner at Lex Chambers; a Corporate lawyer, Commercial Litigator, Transactions Advisor, and Commercial Arbitrator in Kigali Rwanda

Lex Chambers

06 KN 33 Street

Kiyovu, Kigali City, Rwanda

Email: isaac@lexchambers.attorney

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