Running Head- ESSAY 1

Standard of Care for Medical Practitioner in Medical Negligence

A Critical Essay

Name
University
Date
Word Count- 2993
Running Head- ESSAY 2

Table of Contents
1. Topic Statement........................................................................................................2
2. Background...............................................................................................................2
3. Position......................................................................................................................5
4. Discussion..................................................................................................................5
4.1. Different Standards of Care.................................................................................5
4.2. The Shift in Law....................................................................................................6
4.3. Extended Standard of Care for Medical Practitioners......................................7
4.4. Analysis..................................................................................................................7
5. Discussion..................................................................................................................7
5.1. Standard of Care for Paramedic..........................................................................7
5.2. Australian Public Preference for Emergency.....................................................8
5.3. Negligence test for Paramedics............................................................................9
5.4. Analysis..................................................................................................................9
6. Discussion................................................................................................................10
6.1. Standard of care in Emergency situations and defences.................................10
6.2. Analysis................................................................................................................10
7. Conclusion...............................................................................................................11
Bibliography...............................................................................................................12
Running Head- ESSAY 3

1. Topic Statement

The present essay aims to dissect the concept known as the standard of care when it
comes to medical negligence and medico-legal cases. In this process the essay takes
into account what standard of care means under common law and statutory laws in
Australia. The primary question answered in this essay is how the standard of care for
trained medical practitioners is determined. It is followed by another sub question as
to whether the standard of care expected from a medical practitioner is the same as
expected from a paramedic. These two above quoted questions introduces another
issue in this regard which is to analyse the standard of care in emergency medical
situations.

2. Background

The concept of negligence can be best understood from the landmark decision in
the case of Donoghue v. Stevenson where the court introduced the neighbour
principle1. In this case the court held that a duty of care is owed by a person to any
other person who can get affected by the acts of the former person. Negligence can be
proved on the basis of several factors like, there has to be a duty of care owed by one
person to another, there has to be a breach of that duty of care, there has to be some
form of damage caused directly because of the breach of the duty of care and lastly
the damage due to the breach of duty of care should be reasonably foreseeable. A
similar concept is applicable in case of medical negligence where every medical
practitioner owes a duty of care to their patients. As the patients get affected due to
the acts and decisions of the medical practitioner, it is important for the medical
practitioner to conduct themselves properly to avoid liabilities arising from harm
caused to the patients giving rise to medical negligence.

It is important to note that the doctors and medical professional always have a
higher degree of duty of care owed to the patients simply because of the nature of
their profession. This duty of care is significant even without any evidence being
cited. However, not every medical practitioner owes the same degree of standard of
care in every situation. The test of reasonability is an important concept that needs to
1
Donoghue v. Stevenson [1932] UKHL 100.
Running Head- ESSAY 4

be understood for the purpose of this discussion. To determine whether the decision
and treatment of a doctor was reasonable would depend whether it is within the
accepted practice in the industry2. This has been dealt with both under common law
and statutory laws. To be more specific, section 5(b)(2) of the Civil Liability Act 2002
says that, “In determining whether a reasonable person would have taken precautions
against a risk of harm, the court is to consider the following (amongst other relevant
things: (a) the probability that the harm would occur if care were not taken, (b) the
likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of
harm, (d) the social utility of the activity that creates the risk of harm” 3. This means
that a medical practitioner has to consider all these factors before recommending any
medication or even a treatment.

For the purpose of this essay it is important to note that medical negligence cases
have been prevalent in Australia as reported by a survey of doctors. The survey
showed that 65% of the doctors who were the respondents in the survey have faced
some form of medico-legal issues at some point of their career 4. This implies that the
concept of standard of care is extremely prevalent when it comes to medico-legal
cases and is an important area for further exploration so that law reforms are
introduced. The family members of the patients tend to always file a law suit
whenever there is some unsatisfactory outcome and this has been affecting the
contemporary medical practice. Therefore, it requires the law to be constructive and
comprehensive enough to produce an appropriate outcome for the medical
practitioners and the patients. Such law reforms are required to protect the patients
from unprofessional and inadequate medical services as well as limit the liabilities of
the medical practitioner where it is reasonable to do so.

2
Australian Emergency Law, ‘Emergency decision making, harm and negligence’, (2020),
https://emergencylaw.wordpress.com/2020/06/12/emergency-decision-making-harm-and-negligence/.
3
Civil Liability Act 2002 (NSW) No.22. s.5B(2).
4
Rajkumar Cheluvappa and Selwynn Selvendran, ‘Medical Negligence- Key cases and application of legislation’,
(2017) 57 Annals of Medicine and Surgey 205, 211.
Running Head- ESSAY 5

3. Position

The present essay argues that:

 There must be uniform rules to determine the extent to which standard of care can
be made applicable, however, should not be exhaustive. This is because the
degree of standard of care varies from case to case.
 The extent of standard of care expected from a train doctor or medical
practitioner is not the same expected from a paramedic. And the liability imposed
on a medical practitioner cannot be the same as for a paramedic.
 The standard of care in case of emergency medical situation should be the same
for paramedics and for the medical practitioners, however, the liability that can be
imposed should be more for the medical practitioners and limited for paramedic
depending on the situation.

4. Discussion

4.1. Different Standards of Care

It has to be noted that even though the concept of negligence and standard of care
are founded on the same principles for every professional, for the purpose of this
discussion it is important to understand the standard of care in solely the legal context
and standard of care under the medico-legal context are not synonymous. When it
comes to medical standard of care, it represents extent of medical care exercised by a
medical practitioner who is sufficiently trained and who fulfils professional
requirements. However, when it comes to the legal standard of care, it means the
degree of skill and care that a medical practitioner needs to exercise in relation to
situations that are based on accepted industry practices 5. This standard of care is based
on what is reasonable for an established medical practitioner to do in a given
situation. This is what was ruled in the case of Bolam v Friern Hospital Management
Committee6. There are several standards of care in medicine and surgery, including
neurosurgery, according to evidence-based medical literature. Third, professional,
medical, and surgical groups have used the notion of standard of care to establish
ethical criteria for how their members should act as expert witnesses while testifying.

5
Hood v Phillips [1977] 554 S.W.2d 160
6
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
Running Head- ESSAY 6

The literature specifically argues that communities should refrain from utilising
single, self-serving conceptions of the standard of care to punish members, usually
plaintiff's experts, who propose different standards of care in depositions or in court 7.
Even the Bolam case was overruled by some other cases like, Montgomery v
Lanarkshire Health Board and Rogers v Whitaker 8, the standard of care requirement is
still the same with some exceptions and limitations added by the contemporary
medical practice9.

4.2. The Shift in Law

The case of Montgomery v Lanarkshire Health Board introduced some

revolutions in relation to medical practice which made patient-centred care more
important than ever. The law requires a medical practitioner to take all the reasonable
steps to ensure that a patient is aware of all the risk involved with any medication or
treatment. This is one of the most important change in standard of care that was
introduced by overruling the Bolam case. The 'Montgomery' case has upped the
reasonableness bar since the focus is now on the complete disclosure. A reasonable
individual in the patient's position would be expected to attach significance to a
danger that a doctor knows or should reasonably know is seen to be of significance by
this specific patient, according to the law10. This means that the according to the new
standard of care a doctor is under the obligation to inform the patients about every
material risk and not just what the doctor feel is reasonable as per his/her professional
competence or accepted practice of the profession. Another recommendation was
made by a study in relation to the determination of standard of care where the authors
stated that standard of care is not always appropriate in determining medical
negligence because it is based on not adhering to the expected level of duty of care.
Rather standard of care should be based on whether the medical practitioner exercise
due care and skill to eliminate all the risks 11. Hence, from the above discussion it can
be said that the law on standard of care cannot be exhaustive, rather would depend on
the specific situations of the cases.

7
Nancy E.Epstein, ‘Legal and evidenced-based definitions of standard of care: Implications for code of ethics of
professional medical societies’, (2018) 9 Surgical Neurology International 255.
8
Rogers v Whitaker [1992] HCA 58.
9
Montgomery v Lanarkshire Health Board [2015] UKSC 11.
10
Albert Lee, ‘‘Bolam’ to ‘Montgomery’ is result of evolutionary change of medical practice towards ‘patient-
centred care’, (2016) 93(1095) Postgraduate Medical Journal 46, 50.
11
Lawrence H. Brenner, Alison Tytell Brenner, Eric J. Awerbuch & Daniel Horwitz, ‘Beyond the Standard of Care: A
New Model to Judge Medical Negligence’, (2012) 470 Clinical Orthopaedics and Related Research 1357.
Running Head- ESSAY 7

4.3. Extended Standard of Care for Medical Practitioners

Being a doctor means holding several high degree responsibilities and the breach
of such responsibilities give rise to liabilities for being negligent towards the patient
as well as the profession code of conduct12. The case of Lowns & Anor v Woods &
Ors saw a similar situation arise when a doctor refused to to attend an emergency
situation and the patient suffered serious brain damage due to the negligence of the
doctor13. As per the decision of this case even if a doctor has no relationship with a
patient, a duty of care is still owed if the doctor can reasonable afford to provide
treatment during an emergency situation14. This is what extended standard of care
means for a medical professional who also needs to have some sense of responsibility
towards the society.

4.4. Analysis

From the above discussion it can be analysed that standard of care does not
depend on fixed factors, rather the scope of standard of care will vary depending on
the situations faced by the medical practitioners. There are instances when standard of
care means disclosing all the material risks to the patients. On the other hand standard
of care might also means a duty to take all the reasonable steps to ensure safety of the
patients. This is the reason why it is essential to have a uniform rules to determine the
standard of care and that cannot be exhaustive.

5. Discussion

5.1. Standard of Care for Paramedic

The standard of care owed by the paramedics has been a long debated topic in the
medical profession until the case of Masson v State of Queensland gave a clear
conclusion15. The Queensland Supreme Court in this case held that the standard of
care expected from a medical practitioner is not the same as expected from a
paramedic. A paramedic as per this case means an emergency physician or an
ambulance officer. Even though the prosecution made claims saying that the

12
Kylie Day, ‘Medical Negligence - the Duty to Attend Emergencies and the Standard of Care’, (1996) 18 Sydney
Law Review 386.
13
Lowns & Anor v Woods & Ors [1996] Sydney Law Review 20.
14
Jessica Dean, Patrick Mahar, Erwin Loh & Karinne Ludlow, ‘Duty of care or a matter of conduct: Can a doctor
refuse a person in need of urgent medical attention?’, (2013) 42(10) Australian Family Physician 746, 748.
15
Masson v State of Queensland [2018] QSC 162.
Running Head- ESSAY 8

paramedic failed to follow the industry standards and practice guidelines, however,
the court stated that the standard of care expected from a paramedic cannot be the
same as expected from a medical practitioner for a number of reasons. The most
important of them is the fact that a paramedic is not a specialist or a trained doctor
who possess special expertise on medicine and health related studies 16. Paramedics are
meant to provide emergency situation care and expected to bring the patients under
the care of a hospital with some emergency treatments. It is important to note that the
paramedics are trained for pre-hospital care rather than the actual treatments done by
the medical practitioners. The case provides a helpful explanation of the paramedic
standard of care, as well as confirmation that their acts must be assessed in the context
of their colleagues and the clinical scenario, which implies being in an emergency.
Paramedics are also required to use clinical judgement within their area of practise,
and to use Clinical Practice Guidelines to help them make better clinical decisions,
rather than as a mandate for the appropriate treatment in each situation. It means that
even though the standard of care for a paramedic is not as high as a medical
practitioner, however, exercising proper care and professional skill is imposed by
Australasian Competency Standards for Paramedics17. A similar stance is seen in
America where a study stated that the paramedics are the general healthcare provider
whereas a doctor is a specialist healthcare provider. Hence it is obvious that a
paramedic do not possess sufficient medical expertise to treat a patient properly 18.
This automatically implies that a person who do not possess the required level of
professional competence will not owe the same standard of care as a person who
possesses the required level of competence.

5.2. Australian Public Preference for Emergency

Emergency health is something that should only be provided who possess the
sufficient skill and knowledge which otherwise will not only violate code of conduct
but also might lead to situations of medical negligence. A study published in the
British Medical Journal showed that people in Australia people’s preferences vary

16
Chris Reily, ‘High Court examines paramedic’s standard of care’, (2021), https://healthlegal.com.au/current-
news/high-court-examines-paramedics-standard-care/.
17
Paramedics Australasia, ‘Australasian Competency Standards for Paramedics’, (2011), https://nasemso.org/wp-
content/uploads/PA_Australasian-Competency-Standards-for-paramedics-2011.pdf.
18
Brian K. Cooke, Elizabeth Worsham, & Gary M. Reisfield, ‘The elusive standard of care’, (2017) 45 The Journal of
the American Academy of Psychiatry and the Law 363.
Running Head- ESSAY 9

depending on the situation and requirement of medical attention 19. The study
concluded that some patients prefer to wait to be treated by medical practitioners
when it comes to less severe illness. On the other hand there are some patients who do
not want to wait for the arrival of a medical practitioner rather wants immediate
medical attention from paramedics. Regardless of the presenting condition, the
Australian public opposes being treated by an emergency health practitioner other
than a doctor, as well as cost or wait time savings. It would be fascinating to see if the
Court reconsiders the proximity analysis, particularly in light of the legislation's
relevance and policy, as well as the environment in which the obligation will emerge.
It's also unclear if other states' more general legislative provisions would be
interpreted to have such an obligation. Unfortunately, the ramifications of this
responsibility, both for medical practitioners and other health workers, will have to
wait for future litigation.

5.3. Negligence test for Paramedics

As stated earlier that the in order to establish negligence, there are several factors that
needs to be proved. One of those factors is the ability to foresee the damage that will
or might arise in case of breach of duty of care. It can be argued that to foresee the
possibility of harm or damage, it is important for the concerned person to be in a
position where he/she possess the ability to do so. As far as the paramedics are
concerned, they do not possess the same level of professional expertise as held by the
doctors. This automatically means that they are not in a position to foresee the
possibility of a harm that might arise from their incapability to provide professional
healthcare.

5.4. Analysis

From the above discussion it is analysed that the standard of care expected from a
paramedic is lower than a medical practitioner which has been ruled by the High
Court in the case of Masson v. State of Queensland. However, it is true that a
paramedic also has the professional duty to reduce the risk and taking good care of the

19
Paul Harris, Jennifer A Whitty, Elizabeth Kendall, Julie Ratcliffe, Andrew Wilson, Peter Littlejohns & Paul A
Scuffham, ‘The Australian public's preferences for emergency care alternatives and the influence of the
presenting context: a discrete choice experiment’, (2015) 5 British Medical Journal 1, 10,
https://bmjopen.bmj.com/content/bmjopen/5/4/e006820.full.pdf.
Running Head- ESSAY 10

patients with utmost competence and diligence 20. It has also been stated by a study
that even if a paramedic or a nurse is not expected to have the similar degree of
standard of care, but they must have reasonable grounds to depart from the usual
standard of care shown by the professional groups as held in the Bolam case 21. Hence
even though the standard of care will depend on the situation of a case, a paramedic
cannot carry the same liability and duty as required by a doctor or medical
practitioner.

6. Discussion

6.1. Standard of care in Emergency situations and defences

When it comes to primary healthcare services, paramedics are relied on in almost all
the countries. There is evidence which says that paramedics must be given formal
education when they are fully integrated into providing primary healthcare services 22.
This will not only build trust on paramedics but also raise the bar for the expected
standard of care. The above study showed that paramedics are ones on whom people
rely on during an emergency healthcare situation and most patients do not have the
option to be treated by a doctor unless they reach the hospital or during the pre-
hospital care. The peer acceptance defence is also applicable for the paramedics only
if they have acted within the accepted practice. This limits the extent of liability that
can be imposed on the healthcare professionals in Australia. This was concluded in a
study where the author stated that most regions like Queensland, Victoria, South
Australia and Western Australia have limited the extent of liability that can be
imposed for harms caused to the patients both under common law and statutory laws.

6.2. Analysis

From the above discussion it can be said that the shift in law with regard to medical
negligence and imposition of standard of care did not actually shift the duty of care
requirement, rather it only changed the extent of liability that can be imposed for
medical negligence. Even though common law allows the court to use its discretion in

20
Paramedicine Board Ahpra, ‘Code of Conduct’, (2018), https://www.ahpra.gov.au/News/2018-06-15-Codes-
policies-and-guidelines-for-paramedicine.aspx.
21
Iwan Dowie, ‘Understanding the standard of care required by nurses’, (2020) 35(4) Nursing standard: official
newspaper of the Royal College of Nursing 31.
22
Georgette Eaton, Geoff Wong, Stephanie Tierney, Nia Roberts, Veronika Williams & Kamal R. Mahtani,
‘Understanding the role of the paramedic in primary care: a realist review’, (2021) 19 BMC Medicine 145.
Running Head- ESSAY 11

determining the damages, however, statutory laws like the Civil Liability Act 2003
and Wrongs Act 1958 have been reformed to reduce the liability held by the medical
practitioners including the paramedics especially after the case of Masson v. State of
Queensland.

7. Conclusion

The primary argument made in the essay states that there has to be some rules to
determine the standard of care owed by medical practitioners in case of medical
negligence rather than what has been ruled under the neighbour principle. This is
because of the fact that standard of care varies from case to case and the determining
factors cannot be exhaustive. The essay also argued that the standard of care expected
from a medical practitioner is not the same as expected from a paramedic because of
several reasons. Lastly the essay argued that even if the standard of care imposed on a
medical practitioner and a paramedic are same because of the risk based nature of the
industry and patient centric laws, however, the extent of liability imposed has to be
limited. Hence it can be concluded that medical standard of care under the common
law principles provide a broader scope because of which paramedics often face
difficulties to deal with the laws, however, statutory laws limit the financial liability
that can be imposed.
Running Head- ESSAY 12

Bibliography

A. Journals

Albert Lee, ‘‘Bolam’ to ‘Montgomery’ is result of evolutionary change of medical

practice towards ‘patient-centred care’, (2016) 93(1095) Postgraduate Medical
Journal 46, 50.

Brian K. Cooke, Elizabeth Worsham, & Gary M. Reisfield, ‘The elusive standard of
care’, (2017) 45 The Journal of the American Academy of Psychiatry and the
Law 363.

Georgette Eaton, Geoff Wong, Stephanie Tierney, Nia Roberts, Veronika Williams &
Kamal R. Mahtani, ‘Understanding the role of the paramedic in primary care: a
realist review’, (2021) 19 BMC Medicine 145.

Iwan Dowie, ‘Understanding the standard of care required by nurses’, (2020) 35(4)
Nursing standard: official newspaper of the Royal College of Nursing 31.

Jessica Dean, Patrick Mahar, Erwin Loh & Karinne Ludlow, ‘Duty of care or a matter
of conduct: Can a doctor refuse a person in need of urgent medical attention?’,
(2013) 42(10) Australian Family Physician 746, 748.

Kylie Day, ‘Medical Negligence - the Duty to Attend Emergencies and the Standard
of Care’, (1996) 18 Sydney Law Review 386.

Lawrence H. Brenner, Alison Tytell Brenner, Eric J. Awerbuch & Daniel Horwitz,
‘Beyond the Standard of Care: A New Model to Judge Medical Negligence’,
(2012) 470 Clinical Orthopaedics and Related Research 1357.

Nancy E.Epstein, ‘Legal and evidenced-based definitions of standard of care:

Implications for code of ethics of professional medical societies’, (2018) 9
Surgical Neurology International 255.
Running Head- ESSAY 13

Paul Harris, Jennifer A Whitty, Elizabeth Kendall, Julie Ratcliffe, Andrew Wilson,
Peter Littlejohns & Paul A Scuffham, ‘The Australian public's preferences for
emergency care alternatives and the influence of the presenting context: a
discrete choice experiment’, (2015) 5 British Medical Journal 1, 10,
https://bmjopen.bmj.com/content/bmjopen/5/4/e006820.full.pdf.

Rajkumar Cheluvappa and Selwynn Selvendran, ‘Medical Negligence- Key cases and
application of legislation’, (2017) 57 Annals of Medicine and Surgery 205, 211.

B. Cases
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

Donoghue v. Stevenson [1932] UKHL 100.

Hood v Phillips [1977] 554 S.W.2d 160

Lowns & Anor v Woods & Ors [1996] Sydney Law Review 20.

Masson v State of Queensland [2018] QSC 162.

Montgomery v Lanarkshire Health Board [2015] UKSC 11.

Rogers v Whitaker [1992] HCA 58.

C. Legislations
Civil Liability Act 2002 (NSW) No.22
Civil Liability Act 2003 (QLD) No.16
Wrongs Act 1958 (VIC) No.127

D. Others

Australian Emergency Law, ‘Emergency decision making, harm and negligence’,

(2020), https://emergencylaw.wordpress.com/2020/06/12/emergency-decision-
making-harm-and-negligence/.
Running Head- ESSAY 14

Chris Reily, ‘High Court examines paramedic’s standard of care’, (2021),

https://healthlegal.com.au/current-news/high-court-examines-paramedics-
standard-care/.
Paramedicine Board Ahpra, ‘Code of Conduct’, (2018),
https://www.ahpra.gov.au/News/2018-06-15-Codes-policies-and-guidelines-for-
paramedicine.aspx.

Paramedics Australasia, ‘Australasian Competency Standards for Paramedics’,

(2011), https://nasemso.org/wp-content/uploads/PA_Australasian-Competency-
Standards-for-paramedics-2011.pdf.