Assignment task:
Tort Law Case
Sam went to his doctor because he was feeling a pain in his chest. His doctor sent him to a cardiologist who advised Sam that, if he did not have a heart bypass operation, it was likely that he would be dead in a month. The cardiologist failed to tell Sam that there is a 1-in-1000 chance that patients are paralyzed after this operation because of a side effect of the medication. Sam agreed to have the operation done and authorized the cardiologist to proceed with it.
On the day of the operation, Sam was asked to sign a consent form at the hospital. The form was over 10 pages in length and, since the wording was all of a medical nature, it was difficult to understand. On page 9 (in very small print) it explained that there was a possibility of paralysis due to a known side effect of the medication. Sam felt worried about the operation but was determined to have the procedure done. He was already very anxious and didn't feel like reading the form. However, he asked the head nurse of the hospital (who just happened to be standing next to him while she was waiting for the elevator) if she was familiar with the operation. She said that she was and that he had "nothing to worry about". Based on the assurances of the nurse, Sam signed the consent form and submitted it to the medical assistant who gave it to him.
In the operating room, the cardiologist was having a bad day. He was not in the right "frame of mind" to do a procedure as complicated as this because he was up all night the night before (playing poker with his buddies) and basically had no sleep. He thought he felt fine enough to operate after drinking several cups of coffee and decided to just do the operation to get it over with.
For the most part, the operation was a success. However, the cardiologist mistakenly left a sponge in Sam and didn't realize he had done this. A few days later, while he was still recovering in the hospital, Sam developed a serious internal infection and his temperature rose to critical levels. After an emergency X-ray, a resident surgeon spotted the sponge and decided to operate. The sponge was removed and Sam was put in intensive care. When Sam finally woke up, he realized that he was paralyzed.
Explain the elements of each potential case (using the ABCDs of Negligence) while also discussing possible outcomes and defences.