Is a general practitioner legally bound to render assistance to a stranger?

The case of Woods v. Lowns and Procopis (decision of the Court of Appeal of NSW, handed down 5 February 1996: unpublished to date) is likely to have wide implications for the future practice of medicine in Australia. The trial involved two main issues: (i) should judges decide cases of medical negligence by acting on unproven scientific evidence contrary to the weight of expert medical opinion; and (ii) is there a legal obligation upon a general practitioner to attend a person with whom he or she has no professional relationship?

I have dealt in the Journal with the first aspect of the case, ¹ involving Dr Procopis. I was highly critical of the trial judge's finding against this specialist, concluding that his Honour had misconceived his role, and predicting that the "Procopis" component of his judgment would be reversed on appeal. My analysis did not meet with universal approval. ²

My criticism of the judge's handling of the evidence against Dr Procopis proved justified -- the verdict against the specialist was set aside on appeal. A majority of the Court of Appeal of the Supreme Court of New South Wales held that, while it is for the courts to decide the content of the duty of care which a medical specialist owes to a patient, it does not follow that a judge "will simply or readily put aside the considered judgment and/or experience of those skilled in the field and their opinion of what the care of the patient warranted" ( Woods v. Lowns and Procopis on appeal ). This concession has come some way toward attenuating the more extreme view generally ascribed to the decision in Rogers v. Whitaker ³ (i.e., that, generally speaking, the answer to the question whether the patient has been given all the relevant information to choose between undergoing and not undergoing the proposed treatment does not depend on medical standards or practice).

Here I deal with the case against Dr Lowns, the general practitioner, who, at first instance, was held liable in negligence for failing to attend the plaintiff when allegedly requested to do so. The finding against him was upheld by majority of the Court of Appeal of the Supreme Court of New South Wales (Kirby P and Coles JA), who concluded that Dr Lowns, albeit a stranger to the plaintiff, was nevertheless liable for the unfortunate medical misadventure which resulted in the case, all said to be attributable to Dr Lowns' failure to attend the plaintiff at his home when requested to do so.

The plaintiff, a boy aged ten years at the time, had a history of epilepsy and suffered an attack of status epilepticus in 1987 while on vacation with his family. Briefly, the relevant facts, taken from the trial judge's findings, were these: when the boy's mother -- after some considerable delay -- discovered that her son was fitting, she directed her older son "to go for an ambulance", and told her daughter (then nearly 15 years of age) "to go and get a doctor". The girl insisted that she went to Dr Lowns' surgery and spoke "to a man who answered the door". She claimed that she told that man that her mother had sent her because her brother was having a bad fit, that they had called for an ambulance, and "that we needed a doctor and could he come up?". The girl identified this man in Court as Dr Lowns, and claimed that he had refused to come, telling her instead to bring her brother to the surgery. By the time the ambulance arrived and took the boy to another medical practice (where he was injected with diazepam) and then to hospital (still fitting), he had suffered severe brain damage.

The boy sued both Dr Procopis and Dr Lowns (as well as the two doctors who injected him with diazepam, a claim later withdrawn). At first instance, both Dr Procopis and Dr Lowns were found to have been negligent: Dr Procopis for having failed to instruct the parents in the use of rectal diazepam, and Dr Lowns for failing to attend the plaintiff at his home.

At the trial, Dr Lowns denied that the girl had ever been to his surgery. His case was that the alleged conversation had never occurred. However, he made a number of fatal concessions: (i) that if he had been requested to attend the boy, he would -- and should -- have gone, (ii) that if he had attended the boy, he would have injected him with diazepam, and (iii) that if the boy had been treated at that point in time, it is probable that the tragic consequences would have been avoided.

The identification of Dr Lowns by the boy's sister must be treated with considerable scepticism: she alleged that Dr Lowns was smoking a pipe (he does not), and there is little doubt that the doctor is not easily recognisable from her initial description of him. For good measure, the girl's ex- planations of these discrepancies lack conviction. This notwithstanding, the judge chose to believe her and rejected Dr Lowns' denial. (This finding was not challenged on appeal.) In the result, the judge entered a verdict in favour of the plaintiff in excess of $3 million.

The finding that a general practitioner has a duty to attend any person in a medical emergency, in the absence of any previous professional relationship, is brand new law. With a stroke of a pen, the Court "discovered" a duty which did not previously exist.

The origin of this so-called duty is found in the seminal speeches in Donoghue v. Stevenson, ⁴ where a majority of the House of Lords held, some 60 years ago, that a soft-drink manufacturer was liable in negligence to a plaintiff who claimed to have suffered an attack of gastroenteritis as a result of drinking the defendant's ginger beer (alleged to have contained the decomposed remnants of a snail). This case discovered the "neighbour" principle, "based upon a general public sentiment of moral wrongdoing for which the offender must pay" (per Lord Atkin, at p 580). ⁴ This "general public sentiment", excavated from the Old Testament, commanding that you are to love your neighbour, has mutated into law that you must not "injure" your neighbour. The legal question "who is my neighbour?" receives the restricted reply "persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question" (per Lord Atkin, at p 580). ⁴

This "neighbour" principle had never previously been applied to doctor and stranger. Indeed, the trial judge himself (in Woods v. Lowns and Procopis ) noted:

Something other than the foreseeability of harm is required before the law imposes a duty to intervene. It has been held in other common law jurisdictions that a doctor is under no duty to attend upon a person who is sick, even in an emergency, if that person is one to whom the doctor has not and never has been in a professional relationship of doctor and patient: see Jones, Medical Negligence , Sweet and Maxwell 1991 at p 24, par 2.21; Kennedy & Grubb, Medical Law , Butterworths (2nd ed) 1994 at p 79.

His Honour cited a number of United States decisions, all of which held, firstly, that there can be no liability to attend to members of the public and, secondly, that there can be no negligence unless and until the relationship of doctor and patient has been established.

How, then, did the majority impose this hitherto unknown legal obligation? The answer is that their Honours confused a moral duty with a legal one. The Medical Practitioners Act 1938 (NSW) s 27 (1) (now re-enacted in s 37 of the Medical Practice Act 1992 [NSW]) does state that "professional misconduct" in a registered medical practitioner is, inter alia:

(h) refusing or failing, without reasonable cause, to attend, within a reasonable time after being requested to do so, on a person for the purpose of rendering professional services in the capacity of a registered medical practitioner in any case where the practitioner has reasonable cause to believe that the person is in need of urgent attention by a registered medical practitioner.

However, while the legislation describes the contents of professional misconduct which will attract professional sanction, there is nothing in the Act which imposes a statutory obligation to attend a stranger, and it would be quite wrong to elevate "professional misconduct" to a breach of statutory duty, thus giving rise to an independent cause of action. It follows that those who maintain that the decision in Woods v. Lowns and Procopis is relevant only to medical practitioners in New South Wales are on shaky ground.

I believe that, on appeal, only the dissenting judge (Mahoney AJ) correctly summarised the position when he stated: "We are concerned with whether the moral obligation to which (as I assume) the doctor was subject should be a legal obligation" ( Woods v. Lowns and Procopis, at p 13). His Honour noted that:

Counsel have not been able to find any case in support of the present existence of such an obligation. Nor has any member of the Court. No case has been put to the contrary.

I am conscious of the fiction that what the law creates has always been the law. But the implications of this case are great. . . . In this, as in other areas of law, the Court now faces squarely the nature of its decision: it prefers reality to fiction. Therefore, it is not inappropriate that I describe what the Court is here asked to do is imposing a legal obligation which presently does not exist ( Woods v. Lowns and Procopis, at p 15).

I suggest that both the trial judge (Badgery-Parker J) and the majority of the Court of Appeal of the Supreme Court of NSW have not only "discovered" a relationship of proximity between doctor and stranger hitherto unknown to the law, but that they were wrong to hold that a doctor is under a legal duty to attend a person with whom he or she has had no previous professional relationship, a duty said to be based on the "proximity" or "neighbour" test, so that the only remaining question was whether the damage in suit was reasonably foreseeable if a doctor, otherwise in a position to do so, refused to render medical assistance.

I submit that this is not only bad law; it is a blatant usurpation by the Court of what is solely the function of Parliament. If the Legislature wants to impose such a duty, so be it. It is not the business of judges to do so.

While this is not the place to examine the history and development of the law of negligence, it is with no disrespect to the majority of the Court of Appeal to say that in the case Woods v. Lowns and Procopis Homer nodded,* and that the majority's reasoning was simplistic. It has long been held that the tort of negligence does not include -- save in a special relationship -- an obligation of rescue. The claim against Dr Lowns was argued in negligence and only in negligence; no breach of any other civil obligation was, or could have been, demonstrated. The answer to the plaintiff's claim must surely be that the tort of negligence does not extend to a failure by a doctor to attend a stranger. If there is such a duty, it must be sought elsewhere and, in this area, none of the cases to date have ever suggested that a person having goods or skill must provide them for the benefit of another.

In this case, the majority sought to make a great deal of Dr Lowns' concession that, had he been requested to do so, he would and should have attended the plaintiff. The doctor went further, admitting in cross-examination that he could well foresee harm to a fitting child if he did not attend immediately and administer treatment. But that concession could not amount to an admission that he was under a legal obligation to attend the plaintiff, as the majority appear to have thought.

After Dr Lowns indicated that he would seek special leave to appeal the decision to the High Court of Australia, the parties settled their claim. The medical profession is thus deprived of obtaining a more definitive pronouncement on a controversial decision in which, in my opinion, the majority of the New South Wales Court of Appeal came to a wrong conclusion, "bending" the law to reach a socially compelling result.