To succeed in a medical malpractice claim in proving that a doctor is negligent and liable, the patient must establish:
- The doctor owed a duty of care to the patient
- The doctor breached the standard of care
- The patient suffered an injury or loss
- The doctor’s conduct was the cause of the patient’s injury or loss (causation)
When determining if there is a viable medical malpractice claim, the first consideration for a medical malpractice lawyer is always whether the doctor owed a duty of care to his/her patient. If there is no duty of care, then the medical malpractice claim will fail. It is undoubtedly a vital and essential component to any successful medical malpractice claim.
The duty of care is established in a number of different situations. Not only will a duty of care exist in a traditional doctor / patient relationship, but also where the doctor plays an indirect role in providing care. For example, a duty of care exists to a patient where the a doctor reviews the results of an MRI or a blood test, but does not meet the patient in person and does not have any direct contact with the patient.
A common question that arises is whether there is a breach of the duty of care where the doctor refuses to provide treatment to his/her patient. This has become an issue during the current Covid-19 pandemic where doctors and other medical practitioners face the risk of infection where there is inadequate personal protective equipment available. Can a doctor refuse treatment if they face the risk of infection themselves? Is there an ethical obligation on behalf of the doctor to treat the Covid-19 positive patient in light of this risk? Can a doctor refuse treatment to a Covid-19 patient where there is a shortage of personal protective equipment? If a patient is turned away and refused treatment on the grounds that there are not enough medical supplies such as ventilators, is this a breach of the duty of care? As outlined in a recent National Post article on medical malpractice in this time of Covid-19, the answer to this question is difficult and it is largely dependent on the facts.
Some guidance may be found in legal cases that have considered the the right of a doctor to refuse treatment to a patient on religious grounds. A CBC news article discussed the right of a doctor to refuse care on religious grounds and the challenged brought by Christian medical practitioners in Ontario of the Ontario College of Physicians and Surgeons’ policy requiring doctors to provide or at least refer medical services even when they clash with the doctor’s own personal values. This resulted in a new policy requiring doctors who refuse care in these circumstances to refer patients in good faith to a non-objecting, available and accessible doctor. This new policy also provided that in medical emergencies, doctors are required to perform procedures despite their personal beliefs.
It remains to be seen whether these principles are applicable to the ethical considerations of treatment to Covid-19 patients in light of the risk and limited medical supplies.