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Clinical and Medical Negligence Law
Duty of care
This can usually be established fairly easily, a doctor will normally owe a duty of care to his patient for example. When treatment is undertaken privately there will be an additional contractual relationship. A health authority can also have a duty to provide doctors of sufficient skill, without there needing to be actual negligence on the part of a doctor (Wilsher V. Essex AHA).This duty is primarily not to injure the patient by incorrect treatment, or fail to give correct treatment. It can be commenced by the first telephone call. The doctor etc will also have a vicarious responsibility for the behaviour of employees (such as nurses, receptionists), and has a further duty to ensure that these employees are competent and that work is delegated accordingly. There can be other elements to the duty of care additionally e.g. to identify other medical conditions, to keep the patent safe (from physical and sexual abuse), and to prevent infection in non patients.
Standard of care
The case that above all others defines the requisite standard of care is Bolam -v- Friern Hospital Management Committee where Justice McNair stated:
"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.... Putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view."
This takes the 'reasonable man' test of routine negligence and elevates it. What the 'Bolam test' is held to mean is that a doctor must behave in a way that accords with what is judged acceptable by the relevant professional body. This takes into account attitudes prevailing at the time of the alleged negligence.
The test is thought to have been modified in Bolitho v. City & Hackney HA where a minority of law lords held that, the court could decide objectively what a responsible body of opinion was. Personally I have never been comfortable with this view, as I've never felt legal professionals to be qualified to decide whether a practice is 'unreasonable, irresponsible or illogical'.
Many guidelines are now produced by the relevant professional bodies e.g. the Royal colleges, and the National Institute of Clinical Excellence, which can make determination of this issue reasonably straightforward.
It must also be noted that it is no defence to be operating outside one's ability. The level of competence required is that of a person who should be operating in the post (Wilsher v. Essex AHA), something that should be borne in mind by more junior practitioners.
In private cases there will be an additional requirement imposed by contract law that work is of a satisfactory quality and fit for purpose.
Proof of negligence - causation
The next issue to be decided is whether the breach of duty caused the injury in law, and this is invariably the most complex issue. Would the damage not have occurred, 'but for', the events that transpired. For example in the Bolitho case above it was held that a failure to intubate a child had led to its cardiac arrest and subsequent brain damage. The test is modified where there is the loss of a chance for a more favourable outcome, if this chance is less than 50% Hotson v. East Berkshire HA i.e. if there is only a slight chance that early intervention would have improved the prognosis then the claim fails. In a small number of cases the maxim res ipsa loquitur applies, literally the act speaks for itself. If the wrong leg is removed, negligence can be presumed to have occurred even if the actual act is not apparent.
As with any form of negligence the behaviour of the claimant can have an effect, for example failure to follow instructions, or have follow up can be considered to contribute to the damage. In more extreme cases it can be considered that something new has intervened (novus actus interveniens) in which case the claim may again fail.
In Chester V. Ashfar a further issue was considered. In this case a surgeon failed to warn the claimant of rare complications. When she did succumb to this outcome she argued that she would not have had the surgery in the first place, had she been made fully aware. The House of Lords agreed with this view and the claimant was successful. In what was considered to be a policy decision Lord Hope stated
"The duty to warn has at its heart the right of the patient to make an informed choice as to whether and if so when and by whom to be operated on."
It may even be the case that a claim for failure to warn of risks could now succeed even if no damage is caused.
The content and opinions expressed on this website are those of the authors and are given for information only. It is not legal advice which must be obtained from a qualified solicitor or barrister. The authors can accept no responsibility for any loss resulting from action based on these opinions.