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Doctors Pose Po Increased Legal Danger If They Prescribe AstraZeneca to Younger Australians — Why?

Doctors Pose Po Increased Legal Danger If They Prescribe AstraZeneca to Younger Australians — Why?

Published By Api , 2 years ago

The federal government revised its recommendation for COVID-19 vaccinations last week. The Pfizer vaccination is also the “preferred” immunization for people under the age of 50.

Doctors have voiced anxiety over their liabilities in the political fallout and concerns over what it entails for Australia's COVID recovery. Some also stated that they would postpone administering the AstraZeneca jab until they became more confident of their status.

Are they putting themselves at greater legal risk by giving AstraZeneca to younger Australians? The government maintains that they are not. This is right, and I'll explain why.

Demonstrating a flaw

Medical responsibility in Australia is, for the most part, fault-based. This ensures that people who are harmed by drugs, medical equipment, or medical procedures would demonstrate that the physicians who used them were to blame for the injuries they sustained before receiving benefits.

Australian liability laws vary by jurisdiction, but in general, blame may be established only where the practitioner behaved outside of the professional norm of treatment in a manner that was not universally supported by professional colleagues in Australia.

What is the accepted quality of care?

The medical profession essentially sets the level of care regarding diagnosis and recovery. In situations where the therapy is new and information about the treatment is changing, such as with COVID vaccinations, the quality of care is still evolving.

Importantly, physicians are measured by comparing their actions to the quality of care at the moment the procedure was administered. This ensures that if a practitioner administers a COVID vaccine in a manner that was approved by their colleagues at the moment in 2020, they would not be deemed to have violated the quality of treatment if other side effects became apparent years later.

We should also be cautious in equating the government's recommendations on the AstraZeneca vaccine with what the quality of treatment should be at the personal level.

The government's advice is to deal with the larger picture and threats that affect a large population. Individuals must be treated by doctors. So, while doctors should follow the government's recommendations when deciding which vaccinations to give patients, there might be instances where AstraZeneca is the safest choice for specific adult patients under 50.

Accepting threats and giving guidance

Doctors are often required to advise particular patients of the material dangers associated with the care they offer. Any action carries threats, but only the material ones must be revealed.

Material threats involve those that the practice will typically warn patients of (objective material risks) as well as dangers that the actual patient might be more concerned about (subjective material risks).

The classic example of this is the 1993 case of Rogers v Whitaker, in which a woman was considering plastic treatment for one of her eyes because she was blind in that eye. She was worried about the possibility (however remote) of losing her "right eye." Later, she went blind as a result of a documented yet very unusual complication of her medication. And if it was not a danger that must usually be revealed, the doctor's inability to warn her was deemed a violation of the obligation to inform since the risk was subjectively material to her.

CC-BY-00

Again, the practitioner would only be determined on what the field understood about these dangers at the moment. If a patient is informed of the material consequences of a procedure and wishes to proceed with it, the practitioner has fulfilled their moral obligation to warn and cannot be found responsible for all resulting injury.

What does this mean for GPs and AstraZeneca?

Doctors have no greater responsibility for delivering COVID vaccinations than they do for any other care as long as they follow government advice, stay up to date with clinical reports on best practices, and convey medical threats to patients.

The irony is that the chances of vaccination injuring patients and physicians getting blamed over vaccine-related injuries are very slim.

The Australian Medical Association has stated over the weekend that whenever a patient takes an educated choice to undergo the AstraZeneca vaccine, GPs are covered by professional indemnity insurance.

Of course, the fact of low risk does not correspond to the anxiety that clinicians feel. So, is there anything we should do to alleviate clinicians' concerns about liability?

One obvious step is to move to no-fault payout schemes. Many nations, like the United States and New Zealand, have no-fault coverage systems in place for vaccine-related injuries. Putting such a plan in motion might help doctors overcome their fear of being sued. It can even offer patients comfort to assume that they would be protected in the highly unlikely event of an accident.

This may be accomplished by a one-time policy or by extending the National Injury Insurance Scheme, which includes personal injuries resulting from motor vehicle collisions.

Without those programs, Australian people would only be able to seek coverage for vaccine-related injuries if they may demonstrate that the damage was triggered by a failure to follow the medical quality of treatment or a failure to adequately warn the patient of material dangers.


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