Medical Law Exam Notes

Topics: Contract, Tort, Duty of care Pages: 83 (30017 words) Published: September 24, 2013
Semester 1 2011
Compiled by Gabe and Will

Topic 1: Contract, Battery & Negligence
In order to place medical law in its context, each of the potential actions for redress will be explored. Contract – Medicine as trade
Existence of contract
A contract is an agreement between two (or more) parties
3 elements required for a contract to exist
Offer and acceptance (also called agreement)
Intention to create legal relations
In the context of a standard doctor-patient interaction, these can all be satisfied “The relationship between doctor and patient is contractual in origin, the doctor performing services in consideration for fees payable by the patient.” - Sidaway v Board of Governors of Bethlem Royal Hospital [1985] 1 A.C. 871 at 873 per Lord Templemen Acceptance

Who makes the offer in a doctor-patient relationship?
Basic principle of ‘who makes the offer’ comes from Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401 Presentation of goods on a shelf was an invitation to treat; customer’s picking up of good from a shelf and presenting them for payment was an offer to buy (see Lord Birkett LJ) Devereux: the better view is that the doctor makes the offer, and the patient accepts However Picard (article Legal Liabilities of Doctors and Patients in Canada) – a patient’s request for treatment is regarded as the offer, and acceptance is signified by the doctor’s undertaking of the treatment This is a direct application of Boots, it would seem

Remember – this is unsettled!
In an exam question, bring up both arguments and make a decision as to which one fits better/would be accepted by the court Consideration
Recap: consideration is the price paid for the bargain
In the doctor-patient relationship, this is a promise to pay money: affirmed in Sidaway “…performing services in consideration for fees payable by the patient”. What if the patient cannot pay?
Money (i.e. currency or a promise to pay it) is not considered to be the only form of consideration in a doctor-patient relationship – it may be the giving up of a legal right Eg – the patient’s submission to treatment – when the patient agrees to be treated by a doctor, he/she gives up her right not to be touched in order for the doctor to treat Coggs v Bernard (1703) 92 ER 107; Banbury v Bank of Montreal [1918] AC 626 Cause of Action in Contract

Two causes of Action: Breach of Term or Breach of Warranty
Term – essential part of the agreement
2 possible remedies – Termination of contract and damages
Warranty – Non essential part of the contract
Limited to the remedy of damages.
Scope of contract
First, you must identify whether a contract does in fact exist between the Dr and patient Then to determine whether there has been a breach, the terms of the contract must be ascertained Express terms – this is relatively simple

Kennedy & Grubb – express terms are up to the parties to determine But there are limits on what may be agreed – they cannot agree to do that which would be contrary to public policy (eg sell an organ) However there are very few express terms in a Dr-patient contract (eg Dr unlikely to give a guarantee of cure)  so a patient who is aggrieved is most likely relying on an implied term or warranty. Implied terms

Test for Implied Terms – Moorcock
The term must be necessary to give business efficacy to the contract Evidenced by a reasonable person looking on who would have found that the parties presumed to have included this matter. Is there an implied term that a patient be cured? [Promise to Cure] *Eyre v Measday [1986] 1 All ER 488 (pg 140-147)

A woman consulted a gynaecologist to arrange a sterilisation operation  Dr stressed that the procedure was ‘irreversible’  however didn’t warn of 1% risk of operation being unsuccessful Husband and woman resumed sexual relations – woman fell pregnant and a healthy child was born The woman sued for breach of...
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