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Examinations
Semester 1 2003
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Emalus
Campus
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COURSE NAME: Medico Legal Issues
COURSE NO: LA323
TIME ALLOWED: Three (3) hours
READING TIME: Ten (10) minutes
NUMBER OF PAGES: Three (3) excluding this page
NUMBER OF QUESTIONS ON PAPER: Six (6)
NUMBER OF QUESTIONS TO BE ANSWERED: Five (5) only
MARK ALLOCATED FOR EACH QUESTION: Equal
TOTAL MARKS: Fifty percent of result.
MATERIALS PERMITTED IN EXAMINATION ROOM:
None
SPECIAL INSTRUCTIONS
1. Read the questions and the instructions carefully.
2. All answers should be clearly written and should refer to relevant cases and/or statutory provisions.
3. Some questions have a number of parts in which case all parts are to be attempted.
Question 1
Discuss the following four statements in terms of the medico-legal
issues that arise concerning surrogacy. Your
answer to each statement is worth 2.5 marks.
(i)
If the law is to
recognize surrogacy then it needs to make a distinction between altruistic and
commercial surrogacy.
(ii)
The existing
common law concerning parentage, that is who is recognized by the law as being
the mother and father of a child, would need to change if surrogacy is to be
given legal recognition.
(iii)
If a child is
born as a result of a surrogacy agreement but is severely handicapped at birth,
the commissioning parents should still be obliged to take and care for the
child, although they should be able to sue the surrogate mother in damages for
the birth of a handicapped child if the handicap was caused by the carelessness
of the surrogate mother.
(iv)
If the law is to
stop ‘backyard’ surrogacy agreements (often entered into for commercial gain)
then it needs to regulate the area. Any such regulation would need to consider
a variety of legal and policy issues.
Question 2
Joshua was a bus driver. In September he was involved in a serious
motor vehicle accident. He was knocked
unconscious and also suffered severe cuts leading to extensive loss of
blood. The ambulance was called and
Joshua was transported to Port Vila hospital.
At the hospital the doctors made the decision that Joshua needed to be
given blood and that if he were not given blood he would likely die. Joshua was unconscious. Joshua’s sister, Joyce and his brother, Ben were
with him in the bus at the time of the accident. They were also taken to the hospital.
Joyce indicated that Joshua had recently been
converted to a religion where the giving of blood or blood products was not
permitted. She said that Joshua, if he
were able, would refuse the blood; that it was very important to his religious
views that his wishes be respected. However
Ben was of the view that Joshua would probably want to have the blood because
he had just purchased a new business and was excited about setting it up etc. In the end the hospital decided to give the
blood to Joshua.
Joyce, although not badly injured in the accident, did
need some minor surgery. She signed a
form consenting to this “and to any other treatment that might be
necessary”. While the doctors were
operating on Joyce they found a tumor, which although small, would need to be
removed within the next six months otherwise her life would be threatened. In order to avoid Joyce having to have this
additional operation at a later time, the doctors removed the tumor. A
consequence of this was that Joyce could no longer engage in her favorite sport
of netball – a matter of some concern to her because she was in the Vanautu national
side.
Ben suffered head injuries in the accident. However he
was still competent and clearly understood what the doctors told him concerning
the nature of his injuries and the required treatment. He did not want to be
treated at the hospital, rather he wanted to return to his island and see a
custom doctor. The hospital was very concerned about this and had the chief
surgeon talk to him. Ben refused to change his mind but after about half an
hour, with other doctors and nurses putting pressure on him to have the
treatment proposed, he relented and said “Ok, Ok, I am sick of all this. Just
do what you want, but stop pestering me”.
The doctors then gave him a local anesthetic and performed an operation.
Unfortunately he was left deaf in one ear.
The hospital now seeks your advice on three
matters. First, was it lawful for them
to give the blood to Joshua? He is now
angry and upset and believes that the hospital had no right to do this –
especially when it was against his religion. Second, Joyce has indicated that
she intends to sue the hospital for assault.
In the third place, Ben has complained about the doctors operating on
him. In each of the cases of Joshua,
Joyce and Ben there is no allegation that the doctors have been negligent in
terms of their diagnosis, treatment or requirement to inform.
Question 3
In the case of Chappel
v Hart (1998) 195 CLR 232 there was
a divergence of view between the judges in the Australian High Court concerning
the issue of causation as it relates to cases involving medical negligence and
in particular the failure to advise of risks and alternatives. The primary contention made on behalf of Dr
Chappel was that there was no causal connection between his failure to give
adequate warning of the risks involved in the surgery and the damage suffered
by Mrs Hart.
Explain the basis for this contention and what the Court
decided. In your answer make reference
to the view expressed by the minority judges.
Question 4
This question is in 2 Parts and each Part should be
attempted. Each Part is worth 5 marks.
Part 1
What is a “giving” source and what is a “taking”
source in terms of organ donation and with which approach do you agree.
Part 2
The parents of an 11 year old boy wish to use one of
his kidneys for transplantation into his 4 year old brother – who will likely
die if the operation does not proceed. The 11 year old boy has no objection –
indeed he wishes to help. What, in your
view, are the medico-legal considerations need to be taken into account?
Question 5
“It is not entirely clear upon what basis the legal
right to confidentiality of information is founded. It could be argued that it is an implied term
of the contract between the patient and the health care provider that
information obtained will not be used without the patient’s consent. It might
also be argued that the duty of confidence arises out of the general duty of
care owed by the doctor to the patient.
Finally, there may be an equitable duty of confidence as between the
doctor and the patient.”
Discuss this statement by reference to legal
principles and any relevant authorities.
Question 6
Doctor Joshua worked as a general practitioner in Port
Vila. In September he had a young Australian tourist come to his surgery. The young man was very drunk but managed to
make it clear that he was suffering from severe headaches. Doctor Joshua
examined him and could find nothing wrong. He asked him questions about his
headaches. The young man started becoming obnoxious and aggressive and abusive. He started swearing at the doctor and telling
him that he could not diagnose anything even if it was staring him in the face.
The doctor got fed up with patient and told him that he did not have to be
treated like that. He advised the young man to take some Aspro and have a good
lie down. “There is nothing more that I can do for you”. In fact there were
additional tests that could have been performed. The young man shouted more
abuse, paid and left.
Soon after, he collapsed on the footpath due to a
blood clot to his brain. He suffered severe brain damage. The blood clot could have
been identified if the additional tests had been done. The young man sued the
doctor for negligence.
At the trial, expert evidence indicated that the
chance of a blood clot developing in an otherwise healthy young male was very
low, although there were reported cases of such a thing happening and these
cases suggested that those living in a tropical and humid climate were
marginally at greater risk. One of the main signs of a blood clot on the brain
is the advent of severe headaches. Evidence
was also given by a number of local general practitioners. All of them testified that, faced with
similar circumstances, they would have done what Doctor Joshua had done and
that they thought he had acted reasonably.
The judge hearing the matter has asked you (his associate) to provide an outline of the legal issues and principles that arise from these facts and a conclusion as to whether the doctor should be held liable.
END OF PAPER