Contract for the Physician-Patient Relationship Coursework

The Four Elements Necessary for A Contract To Be Valid

A valid contract must be supported by a number of factors that must be present and lawful. Firstly, there must be an offer and acceptance. An offer occurs where one party expresses the desire to form a contract with another and communicates it to that other party. When the other party accepts the offer made to him, there s said to be an acceptance. The law states that both the offer and the acceptance must be lawful, that is, they must be in keeping with the law of contract.

An offer is an expression of willingness to enter into a contract on definite terms as soon as these terms are accepted. An acceptance on the other hand is the agreement to the terms of the offer that is given by the efferee. There must also be a lawful consideration. Consideration is what one party gives the other as agreed in the contract terms. The consideration comprises what the parties exchange to complete the transaction as agreed.

The parties to the contract must also be competent to form a contract as far as age and state of mind are concerned. A valid contract must also be supported by free consent. This means that the parties build a consensus without being forced or any other influence but willingly. The consent should not be obtained by coercion, undue influence, etc.

Elements that apply to the physician-patient relationship

In the case of the physician-patient relationship, a contract is created only if the above elements are present. First, the patient approaches the physician and expresses his willingness to enter in to contract whereby the physician will treat him and then he (patient) pays for the service or medicine given. In this case, an offer is created.

If the physician accepts to treat the patient according to the terms of the offer (the payment that the patient is willing to pay), then there is said to be acceptance. The price that the patient will pay for the services that are offered by the physician stands for consideration. The doctor gives the services or medicines while the patient pays money for the services or medicines.

Termination of the physician-patient relationship

The termination of the patient-physician relationship should be a rare case. The physician is duty-bound once the relationship with the patient commences. Termination especially by the physician should only be sought in extreme circumstances. Termination may be by mutual agreement or unilateral. In the case of mutual agreement, the physician and the patient agrees to terminate the relationship based on certain condition.

The relationship may be automatically terminated when both parties have accomplished their contractual obligations satisfactorily. Any other cause may cause the parties to decide to terminate the relationship. For instance, the patient may feel that he needs to seek medical advice from another physician and agree with the former physician to terminate the former relationship.

Unilateral termination happens where either of the parties to the contract decides to terminate the relationship. The consent of the other party is absent. If a physician decides to terminate the relationship, he should refer the patient to another qualified professional. Termination is considered abandonment when the physician unilaterally withdraws from the patients care without transferring him to another qualified physician. The other physician must be acceptable to the patient. Abandonment is both ethically wrong and an unprofessional conduct.

The Four Elements Necessary To Prove Negligence

Several elements are necessary to prove negligence. Firstly, there must be duty of care. This is a reasonable care exercised by a party in order to avoid act and omissions that are likely to cause injury to their neighbor. The plaintiff must provide evidence that the defendant owe him the duty of care and that he breached it.

The doctrine of “Res ipsa loquitur” is also useful and it states that Means that the facts speak for themselves, that is, it is clear that the plaintiff suffered due to negligence of the defendant. The breach of the duty of care is also an important factor in cases of negligence as it forms the basis for its proving. The plaintiff must also prove that the defendant did not meet his duty of care on him and as a result the plaintiff suffered injuries. Te breach of duty of care is only proven where the defendant knowingly exposed the plaintiff to risks that eventually caused him injuries.

There must also be factual causation or direct cause. The defendant must also prove the injuries he suffered were as a result of particular acts or omissions. Negligence is only proved where it is established where without such acts and omissions, the injury would not have occurred. Lastly, the plaintiff must prove that he was injured by the negligence of the defendant. He must prove that the defendant was in a position to foresee the injury and stop acts that caused it.

Application of concept of standards of care to a clinical service

According to the free dictionary, standards of care entail “the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise” (The Free Dictionary, 2010, 1). In clinical service, the doctors owe a duty of care to the patients, that is, they have the obligation of ensuring that the patients are not exposed to any danger or predisposing factor.

For instance the doctor has the responsibility of warning the patients of acts that would deteriorate their conditions like taking a certain kind of food considered not in keeping with their condition. The doctor or any other clinical service officer will be accused of negligence where their acts and omissions do not meet the standards or care. They are liable to compensate the plaintiff of the resultant damage.

Administrators and the knowledge of the duty of care

Though administrators do not provide direct care nor not considered clinicians, they still have a duty of care to the patients though not related directly to the delivery of care. According to the definition of the standards of care that it is “the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise” (The Free Dictionary, 2010, 1), shows that the administrator also owes the patients a duty of care. In case they neglect an act that results to the damage on the plaintiff, they will be accused of negligence.

Defenses to negligence

The following constitutes the defenses to negligence. Firstly, there is contributory negligence. This occurs where the creation of injury has been caused by the negligent acts of more than one person (The Free Dictionary, 2010, 1). According to The rule of contributory negligence the plaintiff recovers damage that was caused by the defendant but will not recover the extent that he himself was involved. There is also comparative negligence which provides that the recoverable damage are reduced in the plaintiff contributed to his damage. His liability is the extent to which he was involved.

The assumption of risk on the other hand occurs where the plaintiff assumes the risk of the negligence of the defendant thus causing injury on him (plaintiff). Superseding cause this is where an event occurs after the initial one, causing damage or injury on the plaintiff. The initial cause is not considered as the cause of the injury and the defendant is relieved. The assumption is that the original negligence is not the proximate cause of the injury, and the following negligence is held liable to the injury. Those are thee main four defenses to negligence but they apply in given conditions.

Establishmet of physician-patient

The introduction of the physician to Daniel did not create any offer that the physician expressed his willingness to treat Daniel. This was just as an ‘invitation to treat’ where Daniel just came to know that the other person is a physician. Though Daniel explained about a lump that has been on his wrist for almost a year, he did not ask the physician about treating him. He therefore did not express his willingness to enter into an agreement with him. Therefore there was no offer.

The physician directed Daniel to his regular physician who was not present at the moment. There was therefore no agreement that was reached between Daniel and the physician. There was no offer and acceptance. The parties did not also express their desire to establish legal relationship and therefore mere conversation could not be binding on any party. When Daniel was told to call the matter to the attention of his regular physician, he just responded that the physician is retired.

He did not express willingness to engage the physician in that patient-physician relationship. The physician therefore had nothing to accept. He also did not express his willingness to treat Daniel. The other factor that makes it impossible for a contract to be reached is the absence of a lawful consideration. The physician and Daniel did not agree to give each other anything in order to constitute a contract. Consideration is the price that they could have paid each other for the services given.

Daniel could have offered to pay the physician a certain amount of money if he treats his condition. The services that the physician could have offered and the price that Daniel could have paid for the services is called consideration.

Though the law of contract does not recognize any relationship between the physician and Daniel, the physician owes Daniel a duty of care. He palpates the situation and could assess the fate of the patient. If the patient suffers due to that condition, he can litigate the issue and physician will be accused of negligence.

He can be liable to pay the damage suffered by the patient because he knows the condition of the patient and owes him a duty of care. The contract or patient-physician relationship could not be established because the essential elements of a valid contract were not attained. There were no offer and acceptance, no consideration, no intention to create legal relationship and free consent of the parties.

Reference List

The Free Dictionary. 2010. Standard of care. USA: thefreedictionary. Web.