Medical Negligence and Duty of Care
Published: 10 October 2023
Published: 10 October 2023
Under common law, healthcare professionals have a duty of care towards their clients. Breaching this may result in negligence (LSC 2013a).
Note: Australian legislation relating to negligence is mostly aligned, however, small differences do exist between each state and territory. Always refer first to your jursidiction’s legislation and organisation’s policies on negligence and duty of care. A list of further resources can be found below.
Note: This article is related to civil negligence.
Negligence can be defined as a failure to take reasonable care or steps to prevent loss or injury to another person. In healthcare, negligence occurs when a healthcare professional fails to take reasonable care or steps to prevent loss or injury to a client (Caxton Legal Centre 2023).
Being negligent is not the same as making a mistake or error of judgement. Even if a particular risk eventuates, or a desired outcome is not achieved, this does not necessarily mean negligence has occurred. This is particularly true in healthcare, as most medical interventions have risks and complete safety can rarely be guaranteed (LSC 2013b; Caxton Legal Centre 2023).
Negligence may occur during any aspect of healthcare. Examples include:
(LSC 2013b)
In order for a healthcare professional to be found negligent, these four principles must be proven:
(LSC 2013b; Hobart Community Legal Service 2017; HCC 2017)
As a recognised part of their professional relationship, healthcare staff owe a duty of care towards the safety and wellbeing of their clients. This duty of care means healthcare professionals are expected to provide treatment and advice to clients with reasonable care and skill (Caxton Legal Centre 2018, 2023).
Healthcare professionals are also obligated to take reasonable steps to prevent foreseeable harm from occurring to clients (Caxton Legal Centre 2023; Slater and Gordon 2015).
When determining whether there has been a breach of duty, a standard of care needs to be established. The healthcare professional’s action (or inaction) will then be compared to this standard. If the healthcare professional’s action in the given situation differed to the established standard of care, then they may be liable for negligence (LSC 2013b).
The standard of care is based on what a reasonably competent healthcare professional would have done in the same situation (LSC 2013b).
This involves determining:
(Hobart Community Legal Service 2017; Caxton Legal Centre 2018)
When determining whether a reasonably competent healthcare professional would have taken precautions, the court considers:
(Hobart Community Legal Service 2017; Caxton Legal Centre 2018)
It is important to note that the standard of care is set by the court. This means that even if a particular practice is common or accepted by other healthcare professionals, the court may still consider it negligent (LSC 2013b).
For example, if it is common practice in a workplace to give medications two hours late, a nurse may still be found negligent because the standard of care is that patients receive their medications in a timely manner. Although this is a simplistic explanation, it serves to illustrate standards of care.
Breaches of duty that may occur in healthcare include:
(Schreuders 2022; DeSalvo Law 2022; Choahan 2018)
The type of damage or loss experienced by a client will depend on the circumstances, but examples include:
(Schreuders 2022; DeSalvo Law 2022; HCC 2017)
Even if it is established that the healthcare professional has a duty of care, a breach of duty has occurred and the client has experienced damage or loss, the harm needs to be directly linked to the breach of duty. If it cannot be proven that the harm only occurred due to the breach of duty (and would not have occurred on its own irrespective of the breach), the health professional will not be found negligent (Choahan 2018).
These principles of negligence revolve around the concept of being ‘reasonable’: healthcare professionals are expected to take reasonable care of clients, their actions are compared to what another healthcare professional in the same situation would reasonably do, and damage caused by negligence is harm that a reasonable person would have been able to foresee.
What exactly does ‘reasonable’ mean, though?
‘Reasonable’ is a hypothetical standard where a situation is approached with an appropriate amount of caution, and a sensible action is taken in response to the situation. Reasonable does not mean perfect; in fact, some mistakes may still be considered reasonable, depending on the circumstances. In some situations, accidents or mistakes may even be unavoidable (New York Personal Injury Attorneys 2020).
For example, a client who receives chemotherapy and reacts to the medication cannot hold a nurse responsible for their allergic reaction; however, if the nurse giving the chemotherapy treatment failed to respond appropriately to the allergic reaction, they can be held responsible (i.e. if the nurse failed to recognise the signs and symptoms of an allergic reaction and did not notify the doctor, the nurse could be found negligent, as the standard of care is that a nurse should recognise when a patient is having an adverse reaction and would be expected to act accordingly).
Clients may have difficulty proving negligence for a few reasons:
(Caxton Legal Centre 2023)
Medical negligence is a complicated legal situation. If you find yourself involved in negligence proceedings, you will need to understand the principles of negligence.
Question 1 of 3
True or false: Even if a mistake has been made, it may still be considered ‘reasonable’ depending on the situation.