The right not to know and coronary angiography: is the common law of Australia consistent with patients' wishes?

In "The Right Not to Know: Patient Autonomy or Medical Paternalism?" (2000) 7 JLM 286 Judy Gutman qualitatively examined the direction of the law relating to the duty of medical practitioners to disclose information to their patients about risks associated with medical treatment. Prompted by theoretical issues raised in that article, a quantitative study was performed. The study focused on the wishes of patients referred for coronary angiography regarding information about the risks inherent in that procedure. The results of the study contribute to the ongoing academic discussion about risk disclosure and consent to medical treatment and demonstrate a need for further empirical research in the area. The study also highlights the desirability of clinical medical practice conforming to the tenets of the common law and vice versa.     

Rogers v. Whitaker

The High Court of Australia affirmed the Supreme Court of New South Wales' determination that a doctor has a duty to warn a patient of any material risk involved in a proposed treatment. A risk is considered material if a reasonable person in similar circumstances would attach significance to the risk, or if the doctor is, or should be, cognizant that the particular patient would express concern about the risk. The trial court overruled the precept that a doctor could not be found negligent in warning a patient if the doctor acted within the purview of common practice, even though other practitioners may follow different procedures and regardless of the particular patient's concerns. In this case, Maree Whitaker became essentially blind after an unsucessful operation on her right eye caused sympathetic ophthalmia in her left eye. Although there was no question that the surgery had been performed with the requisite skill and care, Ms. Whitaker petitioned the court for relief due to the failure of the ophthalmologist, Dr. Christopher Rogers, to warn her of the possibility (approximately 1 in 14,000) that the sympathetic ophthalmia condition could develop. The trial court's award of damages was affirmed because, in spite of Ms. Whitaker's expressed specific concern that her "good eye" not be harmed, Dr. Rogers did not inform her of the potential risks associated with the surgery.     

Abortion, breast cancer, and informed consent

The purpose of this article is to show that the current level of scientific evidence linking induced abortion with increased breast cancer risk is sufficient to support an ethical and legal duty to disclose fully the risk to women who are considering induced abortion. The article examines the relationship between this evidence and the elements of a medical malpractice claim alleging failure to obtain informed consent. The first part focuses on the elements of informed consent, which require the plaintiff to establish that the physician had a duty to disclose information, which he failed to disclose, that this failure to disclose was a legal cause of the plaintiff's decision to undergo the procedure, and the procedure was a legal cause of the plaintiff's injury. The second part compares two prevalent standards for determining which risks a physician has a duty to disclose. Part three reviews the scientific evidence of the abortion/breast cancer (ABC) link and explains why it survives both the Frye and the Daubert tests for admissibility of expert testimony. The fourth part assesses the materiality of the risk posed by the ABC link. Parts five and six discuss evidentiary issues and the possibility of punitive damage awards.     

'Caparo Under Fire': a Study into the Effects upon the Fire Service of Liability in Negligence

This article discusses a research project which aimed to analyse the relationship between judicial pronouncements over the likely effects upon a defendant of the imposition of a duty of care in negligence, and any effects in practice. Empirical research was carried out to ascertain the effect upon the fire service of the Court of Appeal decision in Capital and Counties and Digital Equipment v Hampshire County Council [1997] QB 1004. This decision imposed a duty of care upon fire services to avoid making mistakes whilst fighting fires which might cause the fire to become more serious. The findings of the project are drawn upon to make observations regarding how the courts presently apply the third limb of the three stage test of duty of care derived from Caparo v Dickman, which asks whether it would be fair, just and reasonable to impose a duty of care.     

论医疗事故罪的主观方面

本文从医务人员的注意义务、注意能力以及法学理论与司法实践的冲突三个角度论述了医疗事故罪的主观方面。对医务人员诊疗中注意义务及其程度的制定标准应当综合考量多种因素 ;在认定医务人员的注意能力时 ,应采用客观说 ;并建议在医疗事故罪的主观定性方面 ,应以危害结果的发生不违背行为人的本意作为区分故意与过失的界限     

论医师专家责任体系下的注意义务

医疗纠纷日益增多，人们开始关注医师专家责任这个概念。在医疗纠纷发生时，法官只有在确定医师对患者负有义务并且违反了义务时，才最终会判决医师专家对患者负有责任。因此医师对于特定患者是否负有注意义务、医师是否违反了此义务成了医患双方共同关心的话题。本文主要从医师专家责任领域的特殊性角度，对医师对患者的注意义务的涵义、产生渊源、及违反的判断标准进行了阐述。     

我国医疗损害责任中医务人员注意义务的标准

医务人员的注意义务是衡量其在医疗活动中是否存在过失的前提，我国即将实施的《侵权责任法》对医务人员的注意义务的标准未作详尽规定，本文通过比较普通法系国家和日本相关的规定，从而指出我国医务人员的注意义务的标准。     

Duty to warn of genetic harm in breach of patient confidentiality

Harm caused by the failure of health professionals to warn an at-risk genetic relative of her or his risk is genetic harm. Genetic harm should be approached using the usual principles of negligence. When these principles are applied, it is shown that (a) genetic harm is foreseeable; (b) the salient features of vulnerability, the health professional's knowledge of the risk to the genetic relative and the determinancy of the affected class and individual result in a duty of care being owed to the genetic relative; (c) the standard of care required to fulfil the duty to warn should be the expectations of a reasonable person in the position of the relative; and (d) causation is satisfied as the harm is caused by the failure of intervention of the health professional. Legislation enacted subsequent to the Report of the Commonwealth of Australia, Panel of Eminent Persons (Chair D Ipp), Review of the Law of Negligence Report (2002) and relevant to a duty to warn of genetic harm is considered. The modes of regulation and penalties for breach of any future duty to warn of genetic harm are considered.     

Does a doctor have a duty to provide information and advice about complementary and alternative medicine?

It is argued that a doctor has a duty to provide information about reasonably available complementary and alternative medicine treatments where that information would be material to the particular patient or the hypothetical prudent patient. Given the vast array of such treatments available, doctors will want to rely on evidence-based medicine problem-solving skills to ascertain those treatments that are safe and efficacious. While the risk of litigation for failure to provide such information is probably low at this time, given the high rate of patient self-prescribing, it is necessary for a doctor to open a dialogue with a patient about complementary and alternative medicine to address safety concerns. In addition, it is important to facilitate access to the best of conventional and complementary treatments to ensure better health outcomes for the patient.     

Patient follow-up: the scope of the duty, the impact of tort law reform and practical suggestions to comply with legal requirements

The exercise of reasonable care and skill by a medical practitioner may give rise to an obligation to follow up a patient after a consultation or procedure. That obligation cannot always be discharged by passing the burden onto the patient, for instance, by advising the patient to return for a further consultation. The few cases that have addressed the issue in Australia have clearly placed a heavier burden on the medical profession to implement effective follow-up procedures. This article addresses the scope of the duty and makes practical recommendations to assist the medical profession in addressing its legal responsibilities.     

Medical devices; patient examination and surgeons' gloves; adulteration--FDA. Final rule

The Food and Drug Administration (FDA) is issuing a final rule to: (1) Define adulteration for patient examination and surgeons' gloves; and (2) establish the sample plans and test method the agency will use to determine if these gloves are adulterated as defined by the rule. With the prevalence of human immunodeficiency virus (HIV) infection and the risk of clinical transmission of other infections, the importance of the quality of an effective barrier to the transmission of infection in health care settings is crucial. The public health will benefit through improved quality control of these protective barriers.     

Tort,Insurance and Ideology: Further Thoughts

This article explores the impact of insurance arrangements on the development of the law of obligations. It is accepted orthodoxy that the existence or otherwise of a duty of care in tort should be determined independently of the parties' underlying insurance arrangements. This article suggests that the traditional analysis is of limited value only, in that it fails to take full account of contractual arrangements which rest upon risk allocation backed by insurance; of the circumstances in which duties of care may arise; and of the relevance of insurance to the determination of the standard of care and causation principles. It is further suggested that insurance has a much greater part to play in the spreading of losses arising out of private suits than has to date been fully appreciated.     

Many Duties of Care--Or A Duty of Care? Notes from the Underground

In the course of attacking the idea that the concept of theduty of care can be dispensed with and replaced by a view ofnegligence that deals only with fault and causation, criticshave revived the notion that there are many duties of care.This article argues that the idea of many duties of care isunworkable, but that there is no need to revive such an ideato avoid falling into the view that the whole concept of theduty of care can be discarded. It argues instead for a unifiedview of the duty of care as a single duty. It also argues fora new analysis of negligence, facilitated by the one-duty view,which does see fault as central to negligence but which, insteadof discarding duty, sees arguments about duty as about whetherthe defendant should be permitted to act unreasonably. The articledefends the one-duty view and the new analysis of negligenceagainst the relational view of negligence and against chargesthat it is motivated by a desire for unity between English andFrench law, that it would be incompatible with the conventionaleconomic analysis of tort law (in the course of which it suggestsan economic analysis of the duty of care), and that, unlikethe no-duty view or the many-duties view, it fails to articulatea coherent view of the relationship between freedom and community.     

Oriental medicine professionals' duty to inform patients

Oriental medicine has constituted a significant portion of health care in Korea, but discussion regarding the legal duties of Oriental medicine professionals has been marginalized. This article proposes the first step in discussing the duty of Oriental doctors and pharmacists to inform their patients about the medicine they provide. It begins by introducing the only decision the Supreme Court of Korea has made regarding the legal obligation of Oriental medicine professionals, where the Court held that the Oriental medicine retailer had a duty to provide information about the medicine being sold. This article supports that decision of the Supreme Court and further argues that other primary providers of Oriental medicine-Oriental doctors and pharmacists-should also bear the duty to inform. The conclusion is driven from the fundamental principle of the Korean Constitution: that everyone is entitled to the right to self-determination. In discussing the scope of information doctors and pharmacists should provide, this article notes the unique features of Oriental medicine used in Korea. The author concludes that Oriental doctors and pharmacists should inform their patients of the nature and effect of the medicine being provided, detailed usage instructions, potential risks associated with the medicine, and information regarding combined use with conventional medicine. As for restorative Oriental medicine, doctors and pharmacists should particularly provide instructions regarding its unique restorative purpose.     

The Legal and Social Construction of Value in Government Procurement Markets

The Public Services (Social Value) Act 2012 introduces a social value duty. It requires public authorities in England and Wales that are carrying out procurement activities to ‘consider’ how such activities might ‘improve … economic, social and environmental well-being’. This article analyses qualitative, empirical data on how the social value duty has been interpreted and applied across local government in England. Although only a weak legal duty, this law has made a notable impact on practice. The article explains the changes brought about in practice under the social value duty and seeks to understand why these changes have occurred. It does so by recognizing local government procurement markets, as well as local government organizations themselves, as strategic action fields. In these fields, there are competing visions for social value. It is through conversations between actors that a common meaning comes to be attached to the law.     

PERCEPTIONS OF RACIAL PROFILING: RACE,CLASS, AND PERSONAL EXPERIENCE*

Racial profiling by the police has become an increasingly controversial issue in recent years, but we know little about the extent of the problem and even less about public perceptions of profiling. This article analyzes recent national survey data on citizens' views of racial profiling. We find that both race and personal experience with profiling are strong predictors of attitudes toward profiling and that, among blacks, social class affects views of the prevalence and acceptability of the practice. The findings on social class point to the need for further investigation and explanation of class influences on evaluations of the police.     

从刑法理论看医疗行为的正当性根据

医疗行为从表面看似乎给人体造成一定伤害 ,但其主观目的在于治病救人 ,客观上有利于患者和社会 ,因此具有正当性。但医疗行为的正当性具有严格的条件限制。本文根据允许的危险、受害人承诺、义务冲突等刑法理论 ,对医疗行为的正当性根据作了进一步探讨。     

论雇主的保护照顾义务

雇主的保护照顾义务在我国学界未受到足够的重视,世界各国对其性质也有不同的认识,本文在梳理其各种认识的同时,分析了赋予雇主保护照顾义务的法理依据,阐述了雇主保护照顾义务的内容及违反义务的损害赔偿责任。     

医患关系的形成与扩展:对美国法上几则新近案例的释读

在美国法中,存在医患关系是主张医疗损害赔偿的一个先决条件。医患关系是一种基于双方自愿的契约关系。医生没有直接接触患者并不妨碍医患关系的建立,医疗建议可以启动医患关系。与一个想分娩健康婴儿的孕妇形成医患关系的医生也与胎儿形成了医患关系。与医生这一职业人员存在相互关系的人可包括没有与职业人员建立严格/直接的契约关系的人群。医生的注意义务可扩展到与其不存在直接的医患关系但存在特殊关系的非患者。如果通行的注意标准所创设的义务明显有益于某些可以确定的第三方,该第三方处于可预见的危险区域,而医生知道此类第三方的存在,那么医生的义务将指向该第三方。当医生仅仅提供检查而没有对受雇者提供医疗和照护时,医生与被检查人员之间不存在医患关系。     

The federal government and academic texts as barriers to informed consent

Informed patient consent for medical treatment is required by both law and medical ethics. Yet, both federal agencies and academicians are participating in the suppression of information about the heightened risk of breast cancer posed by oral contraceptives and induced abortion. There is historical precedent in the long-delayed acknowledgement of the smoking/lung cancer link. By law, a patient has the right to be fully informed of the nature of her medical condition and any proposed course of therapy. It is assumed that a patient will be given the complete and true scientific basis of her diagnosis and treatment, to ensure that her well-being and her autonomy in decision-making are protected. Informed consent is the process by which a patient can participate in choices about medical treatment. It originates from the legal and ethical right of the patient to direct what is done to her body, and from the ethical duty of the physician to involve the patient in her medical care. Our federal government has become a barrier to informed consent concerning oral contraceptive drugs and induced abortion.