The law imposes a duty on medical practitioners to exercise reasonable care and skill in the delivery of professional advice and treatment. This duty extends not just to the examination, diagnosis and treatment of a patient, but also to the provision of information. To succeed in an action in medical negligence, the plaintiff must demonstrate the existence of a legal duty of care and that there has been a breach of that duty by the defendant, which has caused them harm. There must be a special relationship or ‘proximity’ between the plaintiff and defendant to give rise to the duty of care and, the risk of injury must have been reasonably foreseeable. In practice, the existence of the doctor/patient relationship provides the necessary relationship of proximity to establish the existence of a duty of care.
Does this duty of care extend to an unborn child?
The existence of a duty of care arising out of a doctor/patient relationship extends to an unborn child. This duty crystallises at birth when the child acquires legal existence to separate from his or her mother. A person may owe a duty of care to a child who was neither born, nor conceived, at the time of his or her negligent act or omission.
A child, once born, may have a claim against a doctor and/or hospital for the negligent handling of his or her mother’s pregnancy, which resulted in harm to the child. An example of this can be seen in the decision of Radovanovic v Cutter  ACTSC 9.
Radovanovic v Cutter – medical negligence case example
Radovanovic involved a claim brought by the plaintiff, Lainie Radovanovic, for injuries she sustained as a consequence of the negligent handling of her mother’s pregnancy. In this case the plaintiff was born with cerebral palsy, which was attributed to the brain damage she sustained at the time of her birth.
The court found that the mother’s treating obstetrician Dr Cutter, who had care of the plaintiff in utero, was negligent by failing to diagnose vasa praevia or placenta praevia, which is a condition that occurs when the placenta is inserted partially or wholly in the lower uterine segment. The plaintiff’s mother had prolific bleeding, without pain, prior to her admission to hospital to give birth. This was a sign of praevia, which the obstetrician was made aware of.
It was held that even if not aware of the mother’s prolific bleeding, the doctor still would have been negligent for not enquiring with the mother or midwife and, for failing to review the hospital notes containing such information. If the doctor was aware of the bleed, it is suggested that he would have ensured that the praevia condition was not present before rupturing the mother’s membrane or would have taken additional care when rupturing the membrane. The doctor was aware that the plaintiff’s mother was a “high risk” patient due to her past pregnancy history and therefore, it was found that he owed her a higher duty of care, on top of his normal duty. The failure to diagnose the praevia condition resulted in the rupture of the mother’s membrane causing blood loss to the plaintiff, as a foetus, causing her to suffer a heart attack and subsequent cerebral palsy.
It was found that the obstetrician had a duty of care to both the plaintiff and her mother and this duty extended to diagnosing the praevia condition, as the injury suffered was a class of injury reasonably foreseeable as a possible consequence of his conduct. It was held that the risk of damage which eventuated is one which should have been in the doctor’s reasonable contemplation.
The plaintiff was awarded $8,380,660 in damages.
Whether a medical practitioner has complied with his or her duty of care is dependent on the facts presented in each particular case. It is also dependent on the relationship between the medical practitioner’s actions and responsible medical practice. An error of judgement does not necessarily constitute negligence. Whether an error of judgement is considered negligent depends not on the error itself but rather, on whether or not the conduct in question falls below the necessary standard of care. As outlined above, this duty of care extends to an unborn child.
Article prepared by Nicole Forbes. Nicole is a Lawyer in Quinn & Scattini Lawyers’ Compensation Claims Team.
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