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Medical Negligence Notes

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Herring Chapter 3 - Medical Negligence
- Although this chapter is going to discuss medical negligence and mishaps, it should be emphasised that for most people, their experience of medicine is positive

In a survey of patients published in 2016, 63% were satisfied with the service offered by the NHS
o Only 22% of respondents were dissatisfied
- There is a media bias, since cases in which things go wrong grab attention

Even when things do go wrong, it is rarely due to maliciousness
- When something goes wrong in the medical context, it seems natural in our society that legal consequences will follow.
o If there is a very serious lapse of standards, it is possible that criminal proceedings can be brought against a healthcare professional

More often, there is the possibility of an action in tort or contract
- Such legal proceedings perform a variety of functions:
o they ensure that the person injured as a result of negligence receives compensation for any losses;
o they (where successful) provide a public statement of the wrongdoing of the professional, thereby providing a way of holding professionals accountable for their actions;
o and they provide a deterrent against bad medical practice.
- The problem is that these different functions are not always compatible.
o Sometimes, although the professional behaved wrongly and deserves censure, it is not possible (or desirable) to identify a loss to the claimant and so compensation is inappropriate

In other cases, it would be desirable to compensate a patient for his or her loss, but blame cannot fairly be attributed to a particular individual.
o Furthermore, there is the difficulty that requiring a National Health Service (NHS)
trust to pay compensation to one patient may mean that NHS resources are taken away from other patients.
 [i.e. you're punishing other patients instead of the NHS!]
- Even if the wisdom of paying damages in cases of negligence is accepted, we have the issue of where to set the standard of acceptable medical practice.
o Set it too high and the NHS may be flooded with claims and doctors may resort to
'defensive medicine' out of fear of potential litigation

Set it too low and patients will find it impossible to get compensation for their injuries.
- It is difficult to find an accurate picture of the number of 'adverse' incidents involving the medical professions in England and Wales

Only a tiny proportion of these actually reach the court and so reading court reports will not provide an accurate picture.
o In 2016, 1879 822 adverse incidents in the NHS were reported in England

Of these, in the July-September quarter, 73.5% caused no harm, 23.1% low harm,

2.9% moderate harm, which required increased treatment, but did not cause harm

Less than 1% involved death or severe harm

1. The law and medical malpractice: an overview
- Imagine that a medical professional has clearly harmed a patient through negligent conduct.
o What legal consequences may follow?

1 (i) A criminal prosecution

In the event of a patient dying as a result of the negligent conduct, the most likely criminal charge would be for gross negligence manslaughter.
o A doctor who operated on a patient without that patient's consent could also face a charge of battery.
o In a case of sexual misconduct, an offence under the Sexual Offences Act 2003 could be made out.
o Remember that criminal prosecutions (unlike civil actions) do not require the consent of the victim to be brought.
o It is, of course, very rare for doctors to face criminal prosecutions for actions performed in their professional capacity (even an NHS trust can face criminal proceedings, under health and safety legislation)
- (ii) A civil action

The claimant could sue for damages relying on the tort of negligence or (in the case of private medical treatment) breach of contract.
- (iii) Professional disciplinary proceedings or the NHS complaints procedure

A complaint about a medical professional could be investigated by the relevant professional body and/or by the NHS itself.
o These procedures may result in a variety of punishments of the professional, but will not provide compensation to the individual victim.
- In 2009, there were reports of unacceptable care at Mid-Staffordshire NHS Foundation Trust

In a three-year period, between 400 and 1,200 more people died than would have been expected.
o The Francis Report which investigated the neglect concluded that 'For many patients the most basic elements of care were neglected'.
 lt found that 'The standards of hygiene were at times awful, with families forced to remove used bandages and dressings from public areas and clean toilets themselves for fear of catching infections'.
o What was particularly concerning was the length of time for which the bad treatment had gone on

o The government has put in place procedures that it hopes will mean there is no repeat.
o In particular the inspection regime for hospitals has been subject to an overhaul.

2. Criminal Law
- A doctor can be guilty of a criminal offence against a patient in the same way as anyone else.
o For example, if a doctor were intentionally to cut a patient without his or her consent,
this could amount to an assault.
o Of course, it is rare for a doctor to harm a patient deliberately in this way.
- Perhaps of greater concern to most doctors is the possibility of gross negligence manslaughter.
o Notably, a medical professional can be convicted of gross negligence manslaughter without proof that he or she intended or foresaw the harm.
o But it needs to be shown not only that the professional was negligent, but also that he or she was so badly negligent that a criminal conviction is appropriate.
o It is rare for there to be a manslaughter case involving medical professionals,
although such prosecutions do appear to be very slightly on the increase

Corporate Manslaughter and Corporate Homicide Act 2007: an NHS trust could be convicted of manslaughter if the way in which the trust was run were negligently to cause a death.
- Some question the use of criminal law in the medical context 2 Quick: carelessness is an insufficient basis for criminal liability - only if a D has actually foreseen harm should he/she face criminal liability
- Yet the vast majority of criminal offences deal with carelessness and error.
o Should those who hurt others while carelessly driving their cars be treated differently from those who carelessly hurt others while wielding their scalpels?
- One argument: Perhaps MPs (unlike car drivers) are performing a valuable social activity and deserve especial shielding from the criminal law

OTOH: some may feel that doctors have a special position in society and are highly rewarded, and that we are entitled to expect of them the highest of standards.
- Section 20 of the Criminal Justice and Courts Act 2015 has created a new offence of ill treatment or wilful neglect

It is a crime for 'an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual'
o The offence covers doctors, nurses, healthcare assistants

However, it would also cover unpaid carers, such as someone looking after a relative at home

The ill treatment or neglect must be done wilfully, accidental ill-treatment will not suffice

3. The law of negligence
- The majority of litigation following medical malpractice is brought under the tort of negligence. In order to succeed, the claimant will need to prove three things:
o (i) that the professional who is being sued owed the claimant a duty of care;
o (ii) that the professional breached the duty of care; and

(iii) that the breach of the duty of care caused the claimant loss.

3.1 The duty of care
- The duty of care is normally easily established.
o The basic approach in the law of tort is that you owe a duty of care to anyone whom you may reasonably foreseeably injure
- There is little difficulty in finding that all staff in a hospital owe a duty of care to patients in the hospital.
o More difficult is whether a doctor owes a duty of care to a person who falls ill in a public place in the presence of the doctor, or whether a duty of care is owed by a medical professional to the relatives of a patient.
o Such cases would be dealt with using the general principles of negligence, which would focus on the following questions.
- (i) Was it reasonably foreseeable that the defendant's actions would cause the victim harm?
o If not, then there is no duty of care.
o So a doctor who prescribes medicine to a patient would not be found to owe a duty of care to the patient's grand-niece who subsequently found the medicine bottle and ate the tablets.
o The grand-niece's actions would not be reasonably foreseeable.
- (ii) Is there a sufficiently close relationship between the defendant and the patient?
o This is a rather vague concept, but the discussion of four scenarios may clarify the concept.
o 1) First, in Goodwill v British Pregnancy Advisory Service, it was held that a doctor did not owe a duty of care, in giving contraceptive advice to a patient, towards people with whom the patient may in the future engage in sexual relations.
 The doctor in such a case may, however, owe a duty of care to the patient's spouse. The difference is that doctors giving contraceptive advice to patients who they know are married will clearly have the spouse in their o

3 contemplation when giving the advice . But doctors will have no awareness at all of potential future sexual partners of a single patient.
o 2) Second, in West Bromwich Albion v El-Safty, it was held that a surgeon treating a football player did not owe a duty of care to his club, so as to be liable for financial losses suffered by the club when the player was treated negligently.
 The Court of Appeal emphasized that at no point had the surgeon assumed responsibility for the financial wellbeing of the club. It might have been different if the club had employed the surgeon, warning him of the financial consequences if the treatment was ineffective.
o 3) Third, in Farraj v King's Health care NHS Trust, it was held that a private laboratory that conducted some tests on a patient's material on behalf of an NHS hospital owed the patient a duty of care.
 The laboratory had not communicated with the patient, but knew that the results passed on to the hospital would be used to make decisions about treatment.
o 4) Fourth, if a medical professional walks past a road traffic accident and fails to offer assistance, this will not amount to breach of a duty of care, although it might infringe professional good practice.
 Shaun Pattinson has questioned whether the fact that the law does not require a doctor to assist a patient whom he or she comes across may breach the obligations that the state has under Article 2 of the European Convention on Human Rights (ECHR), to protect the right to life
 (note: this line about Pattinson was removed in 7th Ed, but seems interesting)
- (iii) Is there a public policy reason which argues against a duty of care being found?
o It is well established in tort law that a duty of care exists only where it is 'just and reasonable' to impose one.
 If a hospital were to release an outpatient who had a history of violence and who then harmed a member of the public, it is unlikely that the court would find a duty of care owed by the hospital to the general public.
 It would not be just and reasonable to require every NHS trust to detain any outpatient who could pose a risk to others

It may sometimes be possible to claim that the NHS trust or the primary care trust
(PCT) was negligent.
 This might be appropriate where the negligence lies in the way in which the hospital was managed or staffing issues were addressed, rather than the conduct of a particular person.
 This was acknowledged in A (A Child) v Ministry of Defence, in which it was recognized that an NHS trust owed a duty of care to provide a safe and satisfactory medical service to a patient

3.2 The breach of the duty
- After establishing DOC, the next question is whether the professional breached the DoC
o Normally, in the law of negligence, the question is whether it is shown on the balance of probabilities that the defendant acted as a reasonable person would.
o In the medical context, it is more complicated
- In some situations, the law uses what is known as Bolam negligence, and in others, the normal negligence standard

IN short "clinical decisions" (what treatment to give and how to treat the P) use the
Bolam test

For non-clinical decisions (what information to give a P about treatment and other advice to Ps), use the standard negligence test
The Bolam test in outline 4

In Bolam, it was held that ' [a] doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art'.
o Although controversial, the test has been approved by the House of Lords in several cases- Maynard v West Midlands Regional Health Authority; Whitehouse v Jordan;
Sidaway v Bethlem Royal Hospital Governors; Bolitho v City & Hackney Health
Authority - so there is no doubt that it represents the present law.
- The effect of Bolam is that it is difficult to show a doctor breached the duty of care.
o It will not be enough to introduce evidence from an expert witness that he or she would not have carried out the procedure in the way that the defendant did.
o It would be necessary to show that there is no responsible body of medical opinion that would have approved of acting in that way
- All that the defendant need do to win the case would be to find an acknowledged expert to agree that the way in which the defendant dealt with the patient was within the range of acceptable practice.
o It should be emphasized that the question is not whether the defendant was acting in the ideal way, but that his or her actions were above the minimal acceptable practice
- The logic behind the Bolam test was explained by the House of Lords in Maynard v West
Midlands Regional Health Authority.
o In that case, the House of Lords held that a judge is not in a position to choose between the views of competing medical expert opinions.
o So as long as there is a competent school of thought that supports the belief that the defendant's actions were reasonable, the judge will find the defendant not to have been negligent
When does Bolam apply?
- The Bolam test applies to clinical decisions

Decisions which involve medical skill

For e.g. diagnosis of a condition, considerations about what treatments are appropriate for a particular condition, and how those treatments should be provided
- Bolam does not apply to:
o Informing a P about what reasonable treatment options are available

Informing a P of risks associated with treatment

Some basic diagnosis decisions

Non-medical advice
- The first two categories are about what information a P should be given

These have been seen as not issues of "medical expertise" but rather legal matters about what information a P needs to make an effective decision about treatment
- The third and fourth are less straightforward

In relation to diagnosis, in Muller v Kings College Hospital, Kerr J held that it was important to distinguish between two categories of cases:
o "The first type is… where the P's condition is unknown, and what is alleged to be negligent is a D's diagnosis of the condition, in the form of a report, with no decision made or advice given about treatment or further diagnostic procedures. The diagnosis is either right or wrong and, if wrong, either negligently so or not. Such a case could be called a 'pure diagnosis' case"
o "At the other end of the spectrum is the second type of case: a 'pure treatment' case,
where the nature of the P's condition is known, and the alleged negligence consists in a decision to treat (or advise treatment of) a condition in a particular manner
- The Bolam test applied to 'pure treatment' but not 'pure diagnosis'
o In the case before the Court, the C had a wound on his foot and a biopsy was taken

A histopathologist examined the biopsy and diagnosed a non-malignant ulcer 5 In fact it turned out to be a malignant melanoma
Kerr J held that this was a 'pure diagnosis' case -> the question was whether 'the error was one which would be made by a professional exercising reasonable skill and care' (i.e. the normal negligence test)
o In that case, the pure diagnosis WAS found to be negligent, but the claim failed due to lack of causation
- Kerr J: this distinction is justified because in treatment cases, "opposed expert opinions may in a sense both be right, in that each represents a respectable body of professional opinion"
o However in a diagnosis case, the diagnosis is either correct or not
- We will need further case law to confirm whether this approach is to be taken

In Muller, Kerr J muddied the waters somewhat by saying that as a matter of precedent, he could justify his conclusion in terms of the Bolam test, as interpreted in
Bolitho: that a misdiagnosis that is made below the standard expected of a D using reasonable care and skill would inevitably be "untenable in logic or otherwise flawed in some manner rendering its conclusion indefensible and impermissible"
- The fourth category where Bolam would not apply would be any issue or advice outside medical expertise

Obviously if a P slipped on a step in the office, normal rules of negligence would apply

Less obviously, advice by a receptionist at an A&E dept as to how long a P may have to wait was held not to be clinical advice and thus the Bolam test did not apply
- A few more detailed points about the operation of the Bolam test
Current state of knowledge
- A D is to be judged on the state of knowledge at the time of the incident.
o So if, by the time of the hearing, it was generally accepted that treatment of the type given by the defendant was improper, but at the time when he or she acted there was a respectable body of opinion that the treatment was acceptable, the defendant will not be negligent
- Further, a doctor will not be expected to have read and digested research that has only just become available.
o So a doctor was not negligent because she failed to read an article in a medical journal published six months earlier, or did not use a piece of equipment that was not widely available.
o It is arguable that the existence of the Internet, making research more readily available, will mean that doctors will be expected to be more up to date than they were in the past.
- The courts must also be wary of acting with hindsight.
o In Ministry of Justice v Carter, a case in which a doctor had failed to diagnose a cancerous tumour, the Court of Appeal warned against relying on the knowledge that we now had that the tumour was cancerous to assume the doctor was negligent in failing to spot it.
o The doctor's decision had to be assessed based on the evidence that was before him.
Respected body of opinion
- To have a defence, all that a defendant need show is that his or her conduct would be thought acceptable by a respected body of opinion.
o It does not need to be a substantial body of opinion.
o Therefore if a respectable medical expert gives evidence that what the defendant doctor did was an appropriate way of dealing with the case, it is unlikely that the claimant will succeed
- In Maynard v West Midlands Regional Health Authority, the House of Lords criticized a judge at first instance who had heard two competing experts on what course of action was appropriate and had attempted to decide whose evidence was preferable.
o o

6 It was emphasized that it was not for the judge to weigh up competing bodies of professional opinion
Under the Bolam test, once it is found that the defendant's course of action was approved of by a responsible body of medical opinion, this is enough to show that there was no negligence.
o The point was dramatically demonstrated in Defreitas v O)Brien, in which the evidence was that just four or five specialist neuroscientists would endorse the defendant's way of dealing with the case.
o Still that was sufficient to amount to a body of responsible opinion and so there was no negligence.
The law's approach, however, is less clear-cut after the House of Lords' decision in Bolitho v
City & Hackney Health Authority,46 and in particular the following dictum of Lord BrowneWilkinson:
o "[T]he court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular, in cases involving,
as they so often do, the weighing up of risks against benefits, the judge before accepting a body of opinion as being reasonable, responsible or respectable will need to be satisfied that, in forming their views, the experts have directed their minds to the questions of comparative risks and benefits and have reached a defensible conclusion on the matter"
Lord Browne-Wilkinson's dictum suggests that simply because a medical expert declares that what the defendant did was acceptable, it does not mean that the judge must accept that the defendant was not negligent.
o Judges must satisfy themselves that the evidence had a 'logical basis'.
To some, this has marked a radical change in the courts' approach.
o Now, judges will seriously examine a claim that the defendant acted in accordance with a responsible body of medical opinion and will not simply accept the say-so of a fellow doctor.
o Indeed, it might be said that the phrase 'defensible' position requires the judge to give careful scrutiny to the evidence supporting the competing views on the legitimacy of the defendant's conduct
However, other commentators do not believe that Lord Browne-Wilkinson's dictum had a dramatic impact on the law, because any judicial scrutiny of medical expert opinion will be minimal.
o It would be a bizarre case if a medical specialist held an illogical view and had not considered the benefits and disadvantages of his or her approach.
o Indeed, Lord Browne-Wilkinson accepted that 'in the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion'.
o Even if judge takes a harder look, highly unlikely that the expert witnesses will be declared illogical or "unrespectable"
Notable: many cases after Bolitho do not cite the case, and simply refer to Bolam

This suggests the courts might not regard Bolitho as having made a change of any great significance. B
o ut of those cases that do cite Bolitho, it is possible to find some that suggest it has had a significant impact on the degree of scrutiny with which judges will examine the views of the experts.
Contrast the following cases:
o In Marriott v West Midlands Health Authority, a GP called on the claimant, who had suffered a fall.

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