Medical Malpractice

The Do's and Don'ts of the Duty of Care

If you're suing someone for negligence, one of the first elements to establish is their duty of care. You must show the defendant didn't follow the duty of care required by the law. It's defined as the legal obligation to act in a standard or reasonable way.

Doctors are the typical subjects of negligence lawsuits and many malpractice claims accuse them of not following a reasonable duty of care. There have been several unique cases regarding this duty. Does this only apply to medical professionals, though?

Is There a Duty of Care to Not Delay Treatment?

Aline Wright, a newlywed cancer survivor showed stroke symptoms. Her new husband, Eric, a medical professional at a nearby hospital in Tennessee knew he had to get her to the hospital immediately.

Rushing to the hospital, Eric ran two red lights. When a policeman drove behind him with its sirens on, Eric didn't stop and continued to the hospital. Eric, a trained medic, knew he had to get his wife medical attention as soon as possible. He reasoned that rather than pulling over and talking to the officer, he would continue speeding to the hospital and explain the situation to the police officer in the hospital.

However, according to Eric, when he attempted to enter the hospital carrying his wife, Officer Jim Daves blocked Eric from entering. Meanwhile, the officer claims Eric jumped out, ran and pushed him away. Eric alleges that the officer tried to come into the area where Aline was being treated, interrupting her care and threatened to charge him with a several violations.

Eric was arrested and charged with assault on police, disorderly conduct, reckless endangerment, evading arrest (a felony) and several traffic violations. While the charges against Eric were eventually dropped, he was suspended from the hospital because of the felony charge.

Eric and his wife have considered filing a civil suit against the police officer and department due to unreasonable delay with her medical attention and affecting Eric's job prospects.

Duty of Care to Provide Insulin?

Peter Fort, a 43 year old diabetic, was arrested in 2006 for trespassing. Within 24 hours he was dead. His lawyers say the negligent city workers who denied Fort life-saving access to insulin are at fault and have sued the city for $10 million.

Fort wore a diabetes warning bracelet, which the cops and correction officers ignored. Further, in the five months after Fort's death, two others also died while in police custody. Colleen Manza from heart disease and Claude Neal from an overdose.

These incidents raise important questions: Do police officers have to ensure the people they arrest and keep in custody are given medical attention? At what point do police officers need to turn over the arrestee to a hospital?

Do Health Care Workers Have a Duty to Treat Homosexuals?

In the past, there were questions of whether health care workers could be forced to provide certain treatment which would conflict with their religious beliefs. For example, abortions and birth control. Today, new questions emerge dealing with an individual's "rights of conscience" or religious beliefs and the need to protect certain people against discrimination, especially homosexuals.

Few cases have emerged where doctors or counselors have refused to treat homosexual patients due to their religious beliefs. This raises an interesting question: Some religious organizations are exempt from certain nondiscrimination laws, but are individuals or businesses exempt as well? Is there a duty to treat if it interferes with your religious beliefs?

For instance, in Eastern Michigan University, Julia Ward was fired from a University graduate counseling program after she refused to counsel a homosexual man. She claimed that her Christian beliefs about homosexuality would interfere with the counseling she could provide.

She was dismissed from the counseling program after her supervisor claimed the refusal violated the ethical obligations of a counselor not to discriminate against clients based on sexual orientation or to impose one's personal beliefs on them. In response, Ward sued the University, alleging it violated her constitutional rights to free exercise of religion and freedom of speech.

Duty to Test?

The duty of care is difficult to assess in emergency situations. In the emergency room, doctors face this dilemma daily. The fear of missing something and then being sued often leads to extra tests and scans for many non-threatening aliments. These scans aren't only expensive, placing strains on insurance claims, but often subject the patient to a high levels of radiation. However, in the small chance there is a life-threatening condition, these tests are necessary.

As a result have been ordering more tests, even when they aren't necessary. The bottom line is that the duty of care can be a flexible concept. In order to have a successful claim, it's important to prove that a duty existed in the first place.

While it can be an easy concept to prove for some typical claims, it can also be muddled and confusing, as the cases above show. The duty often will depend on facts and details, and a good lawyer.

Questions for Your Attorney

  • Does the duty of care extend to people who aren't doctors or other health care workers?
  • Is this the same duty of care that a parent has to care for his or her child?
  • As an employer, do I have a duty of care for my employees?
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This article was verified by:
Dominique A. Penson | April 22, 2015
11 Park Place, Suite 1801
New York,NY

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