BUSI 506 Discussion Forum Reply Week 2
Benjamin, you presented several of the same points I did in proving the liability of this case. I
agree with your assessment that Dr. Paltrow had a duty of care for Mrs. Smith. Traditionally a
duty of care refers to a health professionals' legal obligation to adhere to a standard and
reasonable responsibility to help or care for their patients (McDougall et al., 2020). To add to
this, the hospital had a duty of care to Mrs. Smith as well. She chose to have her procedure done
at the hospital who agreed to house her as a patient. Dr. Paltrow then agreed to take on her case
as a patient. In this sense, the hospital has the same duty of care to Mrs. Smith as Dr. Paltrow.
Once duty of care has been assumed, physicians must uphold those standards. Standard of care is
the conduct that is expected of an individual, doctor, nurse, or allied health professional, in any
given situation (Pozgar, 2016). If the care received by the patient falls below that standard, then a
breach of duty has occurred. Patients, who have been harmed, like Mrs. Smith, must demonstrate
that that harm occurred as a result of a deviation from the standard (Griffith, 2019). I agree with
your assessment that Dr. Paltrow had a breach of duty, but he was not the only one. Nurse
Brainard admitted she saw Dr. Paltrow and the medical residents not changing gloves and did not
confront them about it. Nurse Brainard, as well as the other nurse on duty and the attending on
duty, knew about the change in Mrs. Smiths' status but did not contact Dr. Paltrow in a timely
manner. This delay led to a more severe infection that could have potentially been lessened had
Dr. Paltrow been contacted earlier. Based on those facts, Dr. Paltrow, the nurses on duty, and the
attending had a breach of duty which ultimately led to negligence.
I also agree with your assessment that an injury was sustained by Mrs. Smith as a result of the
negligence. In terms of negligence, when an injury is sustained there is someone or an action or
someone to blame (Dwyer, 2010). Based on the interviews from Nurse Brainard and Dr.
Bringham, it can be concluded that Mrs. Smith did become septic as a result of the lack of
infection control by ignoring the glove changing policy. This is also supported with the fact that
all the patients in the room contracted the staph infection after being contaminated by the gloves.
Finally, your argument for causation is spot on. Due to Dr. Paltrow being distracted, he along
with his medical residents did not change their gloves between patients which ultimately led to
staph infections in every patient in the room. Failure to notify Dr. Paltrow of the status change in
Mrs. Smith led to a more severe infection. Both Dr. Paltrow and the additional medical staff
contributed to the severity of the injury.
Based on the 4 categories above, the hospital and Dr. Paltrow should be held liable. Although Dr.
Paltrow was persistent to pass the blame to someone else, he should recognize his mistake and
try to make things right. Mrs. Smith is right to seek justice for her case as the many components
that led to her severe staph infection could have been prevented. Psalm 89:14 states,
"righteousness and justice are the foundation of your throne; steadfast love and faithfulness go
before you." This verse is touches on the foundation of God; his throne is righteous, filled with
justice and amassed with mercy and truth (Ellicott, 1878). Righteousness and judgement are
supports for God's throne (Ellicott, 1878). As children of God, we strive to walk in his way so it
should go without saying that we should seek justice as God would. Judgement is reserved for
God but seeking justice is a task for us. Dr. Paltrow cannot not change the actions in the past, but
he can seek mercy from God by admitting to his mistake and learning from the experience.
Physicians have a legal duty to provide a certain standard of skill and care to their existing
patients.:The legal duty of care is created when a physician agrees to treat a patient who has
requested his or her services.1:In determining what that duty requires, physicians should consider
whether the care they are providing is that which a “reasonable physician” would provide under
the circumstances. Specialists would need to exercise a higher degree of skill in their area of
expertise.
Legal scholars suggest that duty of care comprises several catalogued duties: attending,
diagnosing, referring, treating and instructing the patient.1:If a physician breaches the duty of
care and a patient experiences an injury as a result, the physician may be found guilty of
negligence and forced to pay the injured patient or family monetary damages. Professional
insurance may cover these costs.
There is limited case law, literature and legislation on a physician’s legal duty of care during a
pandemic.:Physicians can gain insight into their obligations by becoming familiar with general
legal doctrines and legislation developed in non-pandemic cases. For example, physicians
working during a pandemic may contemplate terminating their relationship with certain patients.
However, an abrupt severance of the physician–patient relationship could result in a negligence
suit if it causes injury to the patient that would have been foreseeable to a reasonable physician.
In the case of Dr. Laxman Balkrishna Joshi:vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969
SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that when a doctor
is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care
in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give,
and (c) duty of care in the administration of that treatment. A breach of any of the above duties
may give a cause of action for negligence and the patient may on that basis recover damages
from his doctor.
In the aforementioned case, the apex court interalia observed that negligence has many
manifestations – it may be active negligence, collateral negligence, comparative negligence,
concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous
negligence, active and passive negligence, willful or reckless negligence, or negligence per se.
Black's Law Dictionary defines negligence per se as “conduct, whether of action or omission,
which may be declared and treated as negligence without any argument or proof as to the
particular surrounding circumstances, either because it is in violation of statute or valid
Municipal ordinance or because it is so palpably opposed to the dictates of common prudence
that it can be said without hesitation or doubt that no careful person would have been guilty of it.
As a general rule, the violation of a public duty, enjoined by law for the protection of person or
property, so constitutes.”
The importance of obtaining informed consent
In the case of Samira Kohli:vs. Dr. Prabha Manchanda and Ors. I (2008) CPJ 56 (SC), the apex
court held that consent given for diagnostic and operative laparoscopy and “laporotomy if
needed” does not amount to consent for a total hysterectomy with bilateral salpingo
opherectomy. The appellant was neither a minor nor mentally challenged or incapacitated. As the
patient was a competent adult, there was no question of someone else giving consent on her
behalf. The appellant was temporarily unconscious under anesthesia, and as there was no
emergency. The respondent should have waited until the appellant regained consciousness and
gave proper consent. The question of taking the patient's mother's consent does not arise in the
absence of emergency. Consent given by her mother is not a valid or real consent. The question
was not about the correctness of the decision to remove reproductive organs but failure to obtain
consent for removal of the reproductive organs as performance of surgery without taking consent
amounts to an unauthorized invasion and interference with the appellant's body. The respondent
was denied the entire fee charged for the surgery and was directed to pay Rs. 25000/- as
compensation for the unauthorized surgery.
Coverage of doctors and hospitals under CPA
In the case of the Indian Medical Association:vs. V.P. Shanta and Ors., III (1995) CPJ 1 (SC), the
Supreme Court finally decided on the issue of coverage of medical profession within the ambit
of the Consumer Protection Act, 1986 so that all ambiguity on the subject was cleared. With this
epoch making decision, doctors and hospitals became aware of the fact that as long as they have
paid patients, all patients are consumers even if treatment is given free of charge. While the
above mentioned apex court decision recognizes that a small percentage of patients may not
respond to treatment, medical literature speaks of such failures despite all the proper care and
proper treatment given by doctors and hospitals. Failure of family planning operations is a
classic example. The apex court does not favor saddling medical men with:ex gratia:awards.
Similarly, a in a few landmark decisions of the National Commission dealing with hospital death,
the National Commission has recognized the possibility of hospital death despite there being no
negligence.
References
Dwyer, P. (2010). Urinary tract injury: Medical negligence or unavoidable complication?
International Urogynecology Journal. https://www.deepdyve.com/lp/springer- journals/urinary-
tract-injury-medical-negligence-or-unavoidable-complication-y0KiLp707N.
Ellicott, C. J. (1878) A New Testament commentary for the English reader. Princeton
Theological Seminary Library. https://archive.org/details/newtestamentcomm03elli
Griffith, R. (2019). Negligence and the standard of care in district nursing. British Journal of
Community Nursing . https://pubmed.ncbi.nlm.nih.gov/30589592/.
McDougall, R. J., Gillam, L., Ko, D., Holmes, I., & Delany, C. (2020). Balancing health worker
well-being and duty to care: An ethical approach to staff safety in COVID-19 and beyond.
Journal of Medical Ethics. https://jme.bmj.com/content/early/2020/09/25/medethics-2020-
106557.
Pozgar, G. & Santucci, N. (2016). Legal aspects of health care administration. 13th ed. Jones &
Bartlett Learning.
