DUTY OF CARE TO PATIENTS AND NON-PATIENTS IN EMERGENCIES: SHOULD THE CASE OF LOWNS BE APPLICABLE IN MALAYSIA?

Abstract

Doctors are sometimes unaware of the extent of the legal duty of care that they may or may not owe to patients and non-patients in emergency situations. It is well-established in common law that the duty of care is present once a doctor-patient relationship is shown to be substantiated but the duty of care to non-patients is less distinct. This paper aims to determine how the duty of care is found in patients in emergencies and by what means that same duty may be lawfully extended to non-patients as well in life threatening situations, through the lens of the decided case of Lowns v Woods in Australia. Specifically, it investigates whether this duty is present in the Malaysian jurisdiction and if it is not existent, whether it ought to be applied to the medical professions of this country. In this context, non-patients in emergency situations are injured persons whom the “ordinary man” does not owe a duty to act as a Good Samaritan to come to the aid of the said persons, but whom the bystander doctor may somehow startlingly incur liability by being idle to the situation. The duty to treat both patients and non-patients may be argued from an ethical and moral point of view but there is legal basis for those obligations which are “fair and reasonable” as they are inferred from society’s expectations of the medical profession. Although there exist true liabilities when a doctor chose to treat a non-patient in an emergency situation, especially in jurisdictions without the protection offered by Good Samaritan laws, it is hoped that when the situation calls for such a service, the bystander doctor will rise to the occasion and fulfil their professional vocation.