Does a Doctor have a Duty of Care to Investigate adverse reactions from Vaccines?



It is clear already there is a legal requirement to advise patients of all material risks associated with vaccines[1] and to obtain valid informed consent[2]. However, there is an equally a legal duty to disclose a suspected adverse event which has occurred in the course of treatment.  If a parent brings a child in for a vaccine, and afterwards the child develops symptoms of problems, the Doctor has a duty of care to investigate. One Australian case has directly dealt with this issue.

Failing to disclose potential adverse event

In Wighton v Arnot [2005] NSWSC 637[3], the patient had an adverse event during a procedure which caused nerve damage but the doctor did not advise the patient of his suspicion that this had occurred.  Moreover, the doctor didn’t test for it and did not initiate an investigation into the adverse event.  In that case by the time the patient saw a neurosurgeon for ongoing pain and by the time the nerve injury was diagnosed, it was too late for remedial medical treatment.

The adverse event in itself was not negligence.  The question was whether the doctor breached a duty of care to inform the patient, investigate the suspected injury and provide an opportunity for any remedial treatment.  The court held that there had been a breach.

Duty to disclose potential adverse event

The Court in holding that a duty to disclose existed, considered the relevance of that failure to disclose to the medical outcome, meaning, if the Doctor had informed the patient and investigated the matter, that there was potential to treat the condition and/or mitigate the damage caused.

The Court held that the exercise of due care required of the defendant was that he take reasonable steps to determine whether an adverse event had occurred and moreover that the patient had a right to know about the adverse event.

This decision recognised that there is a duty to disclose adverse event injuries and investigate them.  The key issue here is that the Court will consider is whether as a result of the failure to disclose and/or investigate the adverse event in a timely manner had a negative impact on the health outcome of the patient.

Most significantly the decision means that a doctor’s duty of care when administering vaccines to a legal requirement that a doctor, most especially if a parent is alarmed or raises concerns about a potential adverse reaction, not only to attend a post-procedure consultation, but that the doctor take reasonable measures to investigate and inform the patient of the adverse event.

This means it is vital that a doctor not only examine a parents concerns with a sufficient level of care, they must also inform a patient of any suspected adverse reaction from the vaccine and take reasonable measures to investigate and confirm diagnosis of the suspicions, once more the key issue is that if diagnosed early, remedial medical treatment can be undertaken in a timely manner to avoid further damage.

 

[1] Wrongs Act 1958 (Vic) s.50 (even where obvious – S.54).

[2] The Australian Immunisation Handbook 10th Edition,  accessed 03/02/2017 at 7.58pm http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/Handbook10-home

[3] Wighton v Arnot [2005] NSWSC 637.

 

NOTHING IN THIS WEBSITE IS TO BE CONSTRUED AS LEGAL ADVICE, IT IS PURELY INFORMATION TO ASSIST YOUR UNDERSTANDING, WHICH WE STRONGLY RECOMMEND YOU BRING TO A LAWYER AND URGE YOU TO SEEK INDEPENDENT LEGAL ADVICE.



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