Today’s question comes from ‘a student’ who refers to a ‘situation in emergency unit [that] concerned me’. If what follows is a real case, then one has to remember that I am speaking generally and not giving legal advice. Every case turns on its facts; all I can do is discuss principles. On the other hand, if this is an assignment question, do make sure due credit is given when writing your answer. I am asked to:
… assume there was an unconscious patient in emergency that had head injury and is bleeding. The practitioner who was treating him gave him a medicine that he was allergic to, but the practitioner could not have known that as the patient was unconscious. As the result when the patient started to recover, he had gone blind and sues the practitioner. What is the law here and was the doctor negligent?
I’ll assume this happened in NSW. The law is that it is axiomatic that a doctor owes a duty to provide reasonable care to a patient. There is no issue that there is a duty of care. The question is, did this conduct amount to a breach of duty.
That question has to be answered without the benefit of hindsight, that is from the position of the practitioner making the decision. Presumably it is known that some people are allergic to this drug and that a consequence of that can be blindness but that does not mean the drug can never be given. The fact that the patient suffered a loss does not mean that the treatment was negligent.
To determine what is (or was) reasonable a doctor (and ultimately a court) has to weigh up what was the risk of that allergy (in what percentage of the population does it occur and of the allergic population how common is blindness) versus whatever benefit the drug gives. To answer that a doctor would need to be informed by the prescribing protocols for the drug (ie what does the manufacturer say about indications and contra-indications) and by professional opinion. To cite the law, the Civil Liability Act 2002 (NSW) s 5B(2) says:
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.
The doctor has to consider those factors ((a)-(d)) before giving the medication. If the risk of blindness due to allergy is very low (eg 1:1 000 000 000) (s 5B(2)(a)) but the drug provides a very important therapeutic benefit, is required urgently and is likely to mean the difference between life and death (s 5B2(d)); there is no other efficacious treatment that can be given whilst inquiries are made about the patient’s history (s 5B(2)(c)) then it may have been reasonable to give the drug even though the risk of blindness was a very serious risk, but so is death (s 5B(b)).
Change the facts and figures: increase the likelihood of harm, decrease the therapeutic benefit, if the medicine was not required urgently or there were other equally efficacious treatments – and the conclusion changes.