#17390 - Medical Negligence - Medical Law

MEDICAL NEGLIGENCE

Herring Chapter 3 – Medical Negligence

Introduction

• 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

  • 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.

  • 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:

  • they ensure that the person injured as a result of negligence receives compensation for any losses;

  • they (where successful) provide a public statement of the wrongdoing of the professional, thereby providing a way of holding professionals accountable for their actions;

  • and they provide a deterrent against bad medical practice.

• The problem is that these different functions are not always compatible.

  • 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.

  • 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.

  • 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.

  • 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.

  • What legal consequences may follow?

• (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.

  • A doctor who operated on a patient without that patient's consent could also face a charge of battery.

  • In a case of sexual misconduct, an offence under the Sexual Offences Act 2003 could be made out.

  • Remember that criminal prosecutions (unlike civil actions) do not require the consent of the victim to be brought.

  • 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.

  • 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.

  • 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'.

  • What was particularly concerning was the length of time for which the bad treatment had gone on

  • <more detail in tb>

  • The government has put in place procedures that it hopes will mean there is no repeat.

  • 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.

  • For example, if a doctor were intentionally to cut a patient without his or her consent, this could amount to an assault.

  • 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.

  • Notably, a medical professional can be convicted of gross negligence manslaughter without proof that he or she intended or foresaw the harm.

  • 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.

  • 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

  • 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.

  • 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'

  • 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:

  • (i) that the professional who is being sued owed the claimant a duty of care;

  • (ii) that the professional breached the duty of care; and

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

  1. The duty of care

• The duty of care is normally easily established.

  • 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.

  • 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.

  • 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?

  • If not, then there is no duty of care.

  • 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.

  • The grand-niece's actions would not be reasonably foreseeable.

• (ii) Is there a sufficiently close relationship between the defendant and the patient?

  • This is a rather vague concept, but the discussion of four scenarios may clarify the concept.

  • 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 contemplation when giving the advice . But doctors will have no awareness at all of potential future sexual partners of a single patient.

  • 2) Second, in West...