Essay On Analysis Of Rogers V Whitaker
Question
Task: Write an essay reviewing the Rogers v Whitaker law suit and whether the charges filed on the Medical practitioners proposed treatment and its adverse effect falls under Negligence or Breach of duty towards the patient’s wellbeing.
Answer
Context
In this study of Rogers v Whitaker, Ms. Whitaker has undergone a critical surgery in her right eye. Whitaker had suffered the condition of vision impairment in her early period of adolescence [1]. Although she had lost visibility to her right eye entirely, it had not caused any sort of hindrance to her daily life. Even though she was being affected with this condition, she had successfully led her family life. With no hindrances she practiced her occupation, sustaining her marriage along with properly bringing her children up. It was being suggested by her doctors that even though she is not facing many difficulties because of this condition, she could gain a surge in the cosmetic aspect and visibility of her eyes. [2] Although after the surgery, the complications and visibility of her eyes worsened and started to affect her other eye. By spreading the complication to her left eye, the patient had lost her total visibility. In the medical discipline, this condition is signified by the term “sympathetic ophthalmia”. This condition is one of the probable risks which may occur after eye surgery [3]. While going through this context, it should be contemplated that the patient was not informed about any potential risk. By keeping this context in mind, Ms. Whitaker had indicted Dr. Rogers by suing him on the ground of negligence, since he had not informed the patient regarding the potential risk of sympathetic ophthalmia accompanied with inadept commencement of surgery, inefficiency in predicting or foreseeing the danger posed to the left eye etc. [4].Although there were some complications with her right eye, Ms. Whitaker was leading her life without much obstructions or difficulty. Though the patient had regularly enquired about the potential risk entailing in the surgery, the surgeon had kept her ignorant of it. Although the risk of sympathetic ophthalmia was very remote, it was the duty of the concerned doctor (Dr Rogers) to inform the patient about any menace that would consequentially happen due to the surgery. Since Ms. Whitaker was very concerned and particular about her health, she would have denied the surgery.
Issues
In this case of Rogers v Whitaker, the defense had relied on the judgment made in the case of Bolam v Friern Hospital Management Committee [6]. The court had made it clear in the case of Bolam v Friern Hospital Management Committee that it is based on the medical judgment made by the doctor which determines what pieces of information should be provided to the patient. The doctors would not be deemed as ignorant if they withhold any piece of information from the patient by following the practice of revelation or non-revelation as per the medical norms [7]. This provision would protect the doctor even if he is opting for an unconventional method of medical treatment. To defend the actions of Dr. Rogers, a special team of medical specialists provided the court with relevant data and evidences. It was being strongly argued by the team of medical specialists that the occurrence of the sympathetic ophthalmia was only 1 among the 14,000 operations and hence it was a very remote possibility [8]. Hence it would be very insignificant to inform the patients having the remote risks. Although strong defense was laid down by the specialist team, the court had denied most of them and had pronounced in the case of Rogers v Whitaker that the occurrence of sympathetic ophthalmia after the commencement of the surgery was an act of negligence.
As per the observations and arguments made by the medical specialists D.A. Wheelan Q.C., the degree of caution to be given to a patient is determined by the concerned medical executive by conducting a series of related assessments [10]. It should be noted that the case of Bolam V Friern Hospital which was raised by the medical executives in rogers v Whitaker, never mentioned the fact that by the adopting a different mode of medication or treatment would absolve the medical practitioner from the act of negligence [11]. Considering the context of the Bolam v Friern Hospital Management Committee the involved patient had never raised any sort of query to the doctor. The actual requirement and longevity of the person to identify his medical condition turn out to be a very decisive factor. If the person is anxious about his health then the medical practitioner must provide the information regarding the potential risks even if they are of remote possibility [12]. The instance of surgery was a voluntary one. It should also be reckoned that there was no sort of medical urgency prevailing with the case of a concerned patient in Bolam v Friern Hospital Management Committee. If the person doesn’t ask about the risks and probable side effects of the suggested treatment, then as per the privileges and customs followed in the therapeutic discipline, the information is not provided to the patient. Although the court makes it clear in the case of Rogers v Whitaker that the patient has all the right to stay aware of the after-effects even if they have not asked about it. There may be a strong possibility that the patient would change his decision to carry on with the treatment if he comes to know about the after-effects of it. It is not the doctor who decides whether the information is relevant or insignificant to the patient. Unlike the medical conventions followed by specialists in the nation of the United Kingdom, in Australia, the doctors are required to provide all the details regarding the treatment. All the probable risks should be thoroughly described to the patient so that the patient should choose whether the treatment should have opted or not?
The defenders had appealed to the court of New South Wales which has completely neglected it; hence it was been appealed to the High Court of Australia. It was being mentioned by the Australian High Court that the jurisdiction in the Bolam v Friern Hospital Management Committee was not applicable or relevant in the context of Rogers v Whitaker since the doctor had willfully hidden the crucial and determining facts from the patient [14]. Another jurisdiction made in a different case of F v R15 was referred in the case of Rogers v Whitaker and had made it very evident that although if the certified bodies like a group of medical specialists provide testimony in the form of an official report, the appropriate convention in the aspect of care could only be decided by the judicial bench. The main agenda of following this convention is to ascertain that the concerned patients have all the right to decide their lives [16]. The judicial bench, in this case, had also made it clear that the significance of informing the patient with the after-effects of the medication increases with the seriousness of the risks involved.
A classification was introduced in between the methodology of treatment adopted by the medical practitioners and the stipulation of providing the patient with essential information by the high court. The convention of the approach taken in medical treatment would be under the total control of the doctor and in the same way the patient holds the right to know every information regarding the treatment and its possible perils [17]. The knowledge of the treatment and medication is the basic right of every patient and hence it should be immediately provided when enquired. The parameters of medical conventions and its judgments are not considered in implying this right, instead, it is based on the ideologies of law and hence it is the judicial bench of the court which ascertains the right of the patient to be well informed about the methodology and avoid the breach of the same. I mentioned approximately, the transfer of information should be grounded on the recommendation of the present team of medical practitioners since they have the medical knowledge to choose the appropriate conventions. Although the opinion of the medical practitioners sustains only in the preliminary cases and the concluding decision could only be taken by the court. This convention is to ascertain the basic right of the patient so that they could make their own decision regarding the treatment which have the potential their life entirely.
Judicial Reasoning
Negligence – Breach of duty – Medical practitioner – Duty to warn of the possibility of an adverse effect of proposed treatment – Extent of duty.
Legal researchers like McHugh JJ, Dawson, Mason C.J., Dawson and Brennan had opined and presented evidence on the topic of Breach of Duty and Causation that the reply to the query of the patient to the relevant medical practitioners regarding the risk of sympathetic ophthalmia should have been provided if Ms. Rogers had specifically asked for the minute risks. They have claimed that the doctor could have provided the information regarding the potential risks to her left eyes if she had asked particularly about it. Thus, the specialists argue that the information regarding the risk of sympathetic ophthalmia was only required to be provided to the patient if she was specific or curious to know about the present and probable conditions. Unless the specific query is raised by the patient, there is no need to carry out exhaustive tests to find out the answer for it and thus eliminates any risks or dangers as mentioned in the application of Bolam principle regarding the discipline of advice and information.
It is a strong possibility that the patient had failed to raise an appropriate query although she had elucidated that any sort of damage to her perfectly working eye should be avoided. Even though the judicial bench in the court was not convinced that there is no need to follow the convention of providing her with the concerned data so that the patient should be aware of all the probable perils. If contemplated with the concerned ideology it is very evident that there is a very obvious there exists a risk in the treatment and hence it would have been ethically required to notify the patient about it. It doesn’t need a special mention that the person having only one working eye would be concerned about that eye and hence they have every right to know the treatment methodology and hidden risks in it. The team of medical practitioners had not applied for an appeal on their proposed platform of arguments. Hence, analysis based on the presented facts under this rogers v whitaker case summary, the court has ruled that the medical practitioner has committed the breach of duty. Although the team of medical specialists had defended by negating the observation of judges that the patient would have denied the surgery if she was informed about the possible risk of sympathetic ophthalmia, they were unable to provide any evidence to defend it. Hence moving forward with an appeal in higher court would have been a futile effort and have brought unwanted complications to the prevailing situation. This is the main reason that the appeal from the defenders was dismissed totally by the judging panel of the high court.
It was being affirmed by Gaudron J. that the judging panel of Brennan, McHugh JJ, Mason C.J., Toohey, and Dawson had ruled out the related facts and justifications in the mentioned case of rogers v Whitaker. Gaudron had supported the decision made by the judging panel of the high court of dismissing the plea of appeal while contemplating the facts provided in the context.
It was crystal clear that there existed adequate generality in the parameter of duty of care among the medical practitioners while contemplating the theory of single comprehensive duty which consisted of analysis, therapy, medication, and the mode of providing information and guidance. Hence the concept of the general duty could be defined as the ability to complete the assigned task by using appropriate reasoning and professional skills. Although there exists an anomaly in this methodology that this sort of declaration provides no relevant data that pertains to the context of completion of duty. The concept of the general duty is not sufficient in identifying the evident ideological variations between the parameters of treatment and the conventions in transferring the knowledge or advice to the patient.
By the term of diagnosis and treatment, the medical practitioner is supposed to practice the common knowledge in the relevant discipline. Hence to carry out the respective set of duties in the provided context or case, the medical practitioner has to analyze along with the present issues about the existing circumstances, a necessity in providing the appropriate care, and the set of medical practices to be considered. The before mentioned factors always grab the attention of indulged medical practitioners. It should also be considered that the present medical condition of the patient would be a decisive factor in the selection of the medical knowledge and identification of the degree of the risks. This would also determine the practice of the specific duties be completed by which the future risks could be eliminated.
In the process of relationship and communication between the patient and the doctor the duties of diagnosis and treatment come into prominence. In the same set of duties, there is mentioned the provisions to provide the information and advice. The act of providing information and advice is done in a very specific and customized way while considering the requirements, context, and apprehensions of the patient. If taken into account some other cases like where there is no particular request is made, the duty would be considered as the transfer of the knowledge which would be very crucial for the person who is deemed to be the patient.
The duties of the medical practitioner don’t require to provide any information or advice regarding the risks unless it is a condition of very critical medical emergency or it is a case where a very intensive care is required since the duties listed would be very diverse in characteristics from another set of tasks and provides different efficiency in predicting the hidden risks and negative impacts of the treatment ( this situation is applicable for the patient who is occupied in the proposed medical procedures and is currently under the treatment from a skilled medical practitioner). The panel of judges had not found any justifiable support for any sort of exclusion or in other words therapeutic privilege which doesn’t comes under the category of medical emergency or the factors concerning to the amenable abilities of the patient, inability to contemplate the seriousness and intent of the provided information or advice which bears a lot of importance concerning the medical condition of the patient. Taking these factors on the ground, the judicial bench of the court had rejected the appeal of the defenders.
Result and Order
The court had rejected the plea of appeal by the defenders along with imposing some penalties. It was also being ruled out by the bench of High Court that in situations like this the involved patients have all the right to receive the knowledge about the probable risks they may have to face after the treatment.
Analysis of the Court Ruling
The High Court had mandated in the case of rogers v Whitakers that the concerned patient must be informed about any potential by the implication of the proposed theory. The concept of material risk signifies the condition of a sane person who has a biological condition of a patient and coerces the medical practitioner to provide focus on the patient. The medical practitioner should have the knowledge of the concerned patient and give them appropriate significance and reveal the area where more concern is to be given to the patient.
It was being made clear by the court that the requirement for providing the patient with the required information does not gets subdued by the disregard or lack of insistence on behalf of the patient. Various factors and parameters should be considered by the medical practitioner while considering the customized requirement of the patients whether it consists of their concerns, ideologies, and anxiousness. As per the opinion of the renowned judge, Justice Gaudron, the medical practitioner should provide the information related to the frequently asked queries even if the patient had not displayed any sort of attention in it. Hence the medical specialist should keep in mind the emotional thinking and their various concerns. If taking an instance of the patient who practices playing the musical instruments as his occupation could possess his own set of concerns. From this, the doctor could devise out that the patient gives his fingers and vocal cords the utmost priority and thus any potential risks to it should be informed to them.
From the above context it was very evident that even though the patient in the case of Rogers v Whitaker has not raised any query which pertained to the risk of sympathetic ophthalmia, she should have been provided the risk regarding her left eye since it bears great significance in her life. The patient should not be burdened with the liability to ask a relevant question should be deemed as a very biased demand.
Reference List
Meg Wallace, Health Care and the Law, 3ED, Lawbook Co., 2001,91.
Meg Wallace, Health Care and the Law, 3ED, Lawbook Co., 2001, p91.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. This case gave medical staff the discretion to decide what disclosure is proper and in the patient’s interest.
Meg Wallace, Health Care, and the Law, 3ED, Lawbook Co., 2001, p91
Wyong Shire Council v Shirt (1980), 146 C.L.R. 40.
Albrighton v Royal Prince Alfred Hospital, [1980] 2 N.S.W.L.R. 542, at pp. 562-563
Sidaway v Bethlem Royal Hospital, [1985] A.C., at pp. 891, 900, 936.
F. v R. (1983), 33 S.A.S.R., at p. 191; Reibl v Hughes, [1980] 2 S.C.R. 880; (1980) 114 D.L.R. (3d) 1.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
F v R (1983) 33 SASR 189.
Meg Wallace,
F v R (1983) 33 SASR 189.
See also Ellis v Wallsend District Hospital [1989] Aust Torts Reports 80-259; H v Royal Alexander Hospital for Children & Ors [1990] Aust Torts Reports 81-100.
