Fitness to Work: Legal Pitfalls

Abstract

Medical examinations for fitness to work are undertaken by the specialist and the non-specialist occupational physicians alike. An assessment done negligently in such a capacity will expose physicians to legal risks, even if they are not specialist occupational physicians. This is not unlike negligent care given in the traditional therapeutic care setting. Much of the case law governing legal disputes in medical fitness to work assessments depend on the kind of loss that is at stake, that is, whether it is one resulting in economic loss, as in loss of an employment opportunity, or one resulting in personal injury, such as when the doctor negligently fails to diagnose or to communicate a serious medical finding. In the latter, the courts are more likely to find for the injured claimants. One of the ways for doctors to reduce their risk in this area is to establish with prospective employers and employees the ground rules when conducting medical fitness to work examinations. Key words: Duty of care, Economic loss, Personal injury, Physical harm, Standard of care, Tort

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