#10055 - General - Medical Law and Ethics

GENERAL

RES IPSA LOQUITUR

1. Cassidy v Ministry of Health – claimant attended hospital due to a problem affecting two fingers, but following an operation and post-operation treatment the problem affected 4 fingers.

2. It’s not a legal principle

COMPENSATION CULTURE

1. Morris – ‘compensation culture’ view puts some people off

2. Leigh (2004) – only about 6,000 claims a year, compared to about a million adverse events. Rather modest figures

3. Simanowitz – litigation crisis is a myth relied upon by the medical profession to avoid proper legal scrutiny

4. Better Regulation Task Force (2004) – ‘the compensation culture is a myth; but the cost of this belief is very real’

5. Micahel Jones – says that fears about compensation culture have led to comments about defensive medicine, despite the fact that there is virtually no empirical evidence of this

6. S.1 Compensation Act 2006 – this is directed at problem of defensive medicine and suggests that court should be conscious as to whether it encourages defensive medicine – Williams describes this as a ‘phoney’ solution

GROWING LITIGATION

1. Harpwood – thinks it’s gone up by 1,200% in last 30 years

DEFERENCE TO THE MEDICAL PROFESSION

1. Lord Woolf extra-judicially (2001) – said that there used to be deference but this has changed, which is good he thinks

RESOURCES

1. Knight v Home Office – insufficient resources for doctors in Brixton prison meant that they were not negligent and were unable to offer same standard as specialist psychiatric hospital

PUNITIVE

1. Herring – one view of Chester v Afshar is that it was punishing doctor for failing to warn

2. Fairchild v Glenhaven – Lord Bingham approved comment that tort law is about recognizing and righting wrongful conduct

WHY DO PATIENTS SUE?

1. Morris – people aren’t just after money

2. Mulcahy – survey showed that most people sue to get an acceptance of fault, assurance that errors won’t be repeated or a fuller investigation

3. CMO (2003) – only 11% people suing were after money

GENERALLY GOOD POINTS

1. Gregg v Scott (Baroness Hale) – ‘of course doctors and other health care professionals are not solely, or even mainly, motivated by the fear of adverse legal consequences. They are motivated by their natural...