A physician may refuse to practise only if he or she has reason to believe that the workplace presents an unacceptable risk. Policy makers and labour agencies propose two types of acceptable risks: those associated with the worker`s occupation and those that are part of normal working conditions.14 The labour protection laws of Alberta, Ontario, Quebec, Nova Scotia, Yukon, Northwest Territories, Nunavut and the federal government explicitly state that workers cannot refuse to work if the risk falls into both categories. In provinces where legislation is not explicit, employment agencies have sometimes interpreted the legislation to contain these limitations.15 There is little case law, literature and legislation on a physician`s legal due diligence during a pandemic.5 Physicians can better understand their duties by becoming familiar with general legal doctrines and laws. developed in non-pandemic cases. For example, physicians working during a pandemic may consider ending their relationship with certain patients. However, an abrupt separation of the doctor-patient relationship could lead to a claim for negligence if it causes harm to the patient that would have been foreseeable by a reasonable physician.3 Physicians are required by law to provide a certain standard of competence and care to their existing patients.1 Legal due diligence occurs when a physician agrees to treat a patient: who has used their services.1 In determining what the duty requires, physicians should consider whether the care they provide is what a “reasonable physician” would provide in the circumstances. Specialists should have a higher level of competence in their field.2 The term “standard of practice” is often discussed among physicians, yet the legal definition of the term is often not understood. Emergency physicians are at the forefront of medicine and are often involved in cases of medical malpractice. It is estimated that between 7 and 17 malpractice claims per 100 physicians are filed each year.1,2 The number of these claims that result in payment varies from state to state (Table 1).3 Therefore, it is important to know how the legal system sets the standard of care and what standards we are held to as physicians. A chronological approach to the evolving definition of the standard of care according to legal history will help to understand the current concept and nuances of the term.
Legal scholars suggest that due diligence includes several catalogued tasks: care, diagnosis, referral, treatment, and patient instruction.1 If a physician fails in his or her duty of care and a patient is injured as a result, the physician may be found negligent and compelled to pay financial damages to the injured patient or his or her family.3 Professional insurance can cover these costs.4 Medical assistants work with doctors, mainly in ambulatory or ambulatory care facilities, such as doctors` offices and clinics. Regardless of any legal duty of care for a person who is not a patient, a physician who chooses to assist a person in an emergency may have established a physician-patient relationship and thus assumed the resulting responsibility.3 Liability may be limited by the Good Samaritan Act that exists in all provinces. except in New Brunswick. This legislation stipulates that doctors who provide assistance at the scene of an emergency and without expectation of compensation will only be held liable if they are grossly negligent. A second case with a similar result occurred in 1995. In McCourt v. Abernathy, doctors lost again due to their substandard care. Ms. McCourt presented for three days with several conditions, but was found to have a finger infection caused by a needle stick while working in manure. During those three days, she was seen by Dr. Abernathy and her partner, Dr. Clyde, who simply cleaned the wound.
As she became increasingly ill, they gave her oral antibiotics, but she later became septic. An internist consulted diagnosed sepsis and the patient died despite aggressive care. Again, the doctors acted below the standard of care, but the trial judge gave important instructions to the jurors. He explained: “A final case that helped define the modern definition of the standard of care is Johnston v. St. Francis Medical Center in 2001.13 In this case, a 79-year-old man with abdominal discomfort was examined using X-rays and laboratories, but his investigation was ambiguous. Two doctors examined him during the day and found that he was in mild distress. Additional studies, including computed tomography and ultrasound, were ordered, but the patient became hypotensive and was referred to the intensive care unit (ICU). The ICU doctor thought he might have an aortic aneurysm, which was confirmed during the laparotomy. The patient died in the operating room.
The plaintiffs argued that doctors should have diagnosed the aneurysm earlier. All but one of the experts said it was a difficult diagnosis. The court ruled in favour of the doctors. More importantly, though; The court clarified that even if the aneurysm was evident on X-rays and labs once diagnosed, it cannot be used retrospectively to assess the physician`s behavior and judgment. In this case, the diagnosis of aneurysm was “possible” but difficult enough that the absence of the diagnosis did not mean that the standard of care should not be ensured. This is in stark contrast to the previous case of Helling v. Carey. In this case, Dr. Hilbun did not provide “minimally competent care,” but the good news from a medical perspective is that the law only requires “minimum competence.” Care doesn`t even have to be “average,” which makes sense; Otherwise, 50% of all medical treatments would be malpractice by definition. Contributors: Cara Davies was responsible for most of the research and design, and Randi Zlotnik Shaul made major revisions to the intellectual content. Both authors contributed significantly to the design and design of the manuscript and to the interpretation of the law under review. Both read and approved the final version, which was submitted for publication.
The cases in which this limit applies depend on the person`s situation. For example, physicians who work in large health care facilities where someone else can easily assume their responsibilities could not be considered a danger to a patient or another physician if they refused to work.23 However, a physician who works in a remote community and is the only person capable of performing certain essential tasks could be considered a danger to others. If he refuses to work. During a pandemic, physicians may experience tensions between their ethical responsibilities and their legal rights and obligations. For example, the Code of Ethics states that physicians have a fundamental ethical responsibility to “consider the patient`s well-being first,” but also to “promote and maintain the patient`s own health and well-being.” 24 Some universities have described the ethical dilemmas that can arise during a pandemic and developed policy statements specifically tailored to physicians` ethical obligations.27–29 The issues become more complicated when considering physicians` legal duty of care and their legal right to refuse to work in unsafe conditions. Physicians should be aware that the existence of this separate regulatory system does not deny their right to refuse to work in unsafe conditions, nor does it protect them from negligent liability for breach of their legal duty of care. I further accuse you that the degree of skill and care that a physician must apply in diagnosing a condition is that exercised by practitioners competent in the field of medicine of the defendant physicians. The Helling v.
Carey has pushed state legislatures to pass laws setting the standard of due diligence in their jurisdictions. Washington State was the first to pass this type of legislation when it concluded that the standard of care is not met when “the defendant or defendants do not exercise the level of ability, care, and learning that others possess in the same profession. 10 Two cases changed the legal definition of the standard of treatment as it is applied today in medical malpractice law.