I developed a rash and felt slightly feverish but thought I would wait a day or two before seeing a doctor about it. Later that day I attended a dinner party where an old classmate who is now a doctor was in attendance. During the course of the evening I described my symptoms to the doctor and asked what they thought of it. The doctor advised me that it was “probably nothing a course of antibiotics wouldn’t fix.” The next day I felt considerably worse and called an ambulance to be told I had contracted the meningococcal virus. Due to complications my leg had to be amputated. Can I sue that doctor I met at the party for negligence?
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.
Answer by Shamaila Khan, Kingsville 3012 VIC
- It may be difficult to establish the existence of a doctor-patient relationship that gave rise to a duty of care in this instance. Generally the law is reluctant to impose an active duty on medical practitioners beyond clinical settings. However this presumption can be challenged.
- The court would likely examine the circumstances in which the advice was given to determine whether a relationship was formed.
- In this instance you were in a social setting where parties were possibly consuming alcohol. This may have affected the doctor’s judgement when giving you the advice.
- In addition the question makes no mention of a physical examination occurring. The doctor did not:
- take your temperature;
- ask you questions in response to your symptoms; or
- observe the rash you described.
- Finally the advice was sought while attending a dinner party that you felt well enough to attend so it is possible that at first glance you didn’t look any worse than someone with a mild complaint.
- In the circumstances it may be difficult to show that a relationship giving rise to a duty of care was formed.