#15651 - Medical Negligence - Medical Law

Learning Objectives: how does the law respond to, and how should the law respond to medical malpractice, specifically, that of doctor’s malpractice (excluding a failure to provide sufficient information, and pre-natal negligence, which is covered later).

Learning Goals:

What practical ways are there for patient’s to bring an action at law for medical negligence?

What non-legal recourse do patients have to address medical negligence?

What are the issues with how medical negligence is dealt with by the law, and how can it be reformed?

Central Issues:

Patients whose treatment goes wrong can bring negligence claim. For private patients, there is an implied contractual term that the doctor will exercise reasonable care and skill, indistinguishable from the doctor’s duty of care.

Establishing a doctor’s duty to the patient is straightforward. More difficult whether doctor also owes duty to third parties.

According to the Bolam test, modified by Bolitho, the doctor won’t have acted negligently if they acted in accordance with practice accepted as proper by a reasonable body of medical opinion, if that opinion is capable of withstanding logical analysis.

Having established a breach of duty, there must be proof of causation of damages. This may be difficult where the patient is already ill, meaning there may exist multi-causal deterioration.

The medical negligence system is costly and inefficient, with few claimants succeeding. It fosters a ‘blame’ culture, which makes learning from mistakes harder.

Doctors may face prosecution in cases of gross negligence leading to manslaughter. More generally, the medical council may investigate the doctor’s fitness to practice. Patients can also complain to the NHS.

Underlying ethical concerns

Typically, people assume that when something goes wrong in practise, patients want compensation. However, empirical evidence suggests patients prefer an apology and reassurance that it won’t happen again.

Medical negligence has a rather narrow focus on personal injury, being either physical or recognised psychiatric illness. This makes it ill-equipped to deal with some of the poor care and patient suffering e.g. leaving patient’s unwashed, with inadequate access to food, water, toilet and clean sheets.

A. Breach of Contract

Where patients are treated in private health, they normally have a contract with the doctor directly. The terms of this contract may differ, but they will obviously include terms implied under ss. 4 and 9 of the Supply of Goods and Services Act, medical devices be of good quality and fit for purpose. Statutory limits on use of exclusion clauses may also apply e.g. impossible to restrict or exclude liability for death or injury caused by negligence.

It is unlikely for such contracts to contain guarantee clauses, and it is unlikely the courts will imply such terms into the agreement (except in rare cases e.g. if a patient goes in to have a limb amputated, then that is what they should expect to happen).

However, courts will imply in such contracts that a doctor will use ‘reasonable care and skill’. In practise, this is no different to the doctor’s duty of care.

B. Negligence

To succeed in negligence, you need to establish a duty of care (usually between doctor and patient, and the employer of the doctor may be held vicariously liable), that the doctor breached the duty by failing to exercise reasonable care and skill, and that the breach caused the injuries (which were not too remote). Finally, there may be defences available to the doctor.

Existence of duty

The duty between doctor and patient is well established, and requires an exercise of reasonable care and skill in diagnosis, advice and treatment. Provided the breach of this duty occurs in clinical situations, the employer will also be vicariously liable. In three situations however, the question of duty is more complicated.

1. Duty owed to strangers?

Firstly, there are times where the doctor may be treating a ‘stranger’ as opposed to a ‘patient’. When exactly does the duty arise then? The common law position is that the duty is imposed once the doctor assumes responsibility for the patient’s care. In hospitals, this might be when the patient presents for treatment, before being actually seen by the doctor (as was in Barnett v Chelsea and Kensington, where a doctor who was called to see some A&E patients rejected seeing them, and those patients ended up dying, the court held the doctor breached the duty). Note: the doctor’s duty does not arise unless they know of the patient’s need for treatment/services.

2. Duty owed by NHS and other bodies?

Secondly, in addition to doctors, and employers (being vicariously liable), might the NHS owe some duty of care to patients to ensure they get adequate treatment? What about the CCGs or the Secretary of Health? This goes to the question of proximity, and whether there is sufficient proximity to establish a duty of care.

In Wilsher v Essex, the Court of Appeal thought the NHS had a duty to provide patients with properly skilled medical staff and an adequately equipped hospital. An obvious problem with this is the problem of resource scarcity. On the one hand, courts are willing to impose a minimum standard of care, but on the other, unwilling to interfere with policy decisions. This itself leads to somewhat arbitrary outcomes: in Bull v Devon, the court held that making a patient wait for an obstetrician re urgent labour for an hour fell below the minimum standard, whereas in Garcia v St Mary’s, the court held that making a patient wait 30 mins after losing consciousness following surgery was not below the minimum standard.

In cases where the patient is treated privately, the CCG that commissioned the treatment owes a primary duty to arrange adequate care, even though it is not the doctor’s employer.

In Re HIV Heamophiliac Litigation, patients (who were haemophiliacs) bought a claim against the Secretary of Health for failing to warn patients of the risks of blood-transfusion contamination. The Court of Appeal allowed the case to trial because there was an arguable case for breach of duty. Note: this kind of outcome is exceptional, because haemophiliacs are uncommon, and normally known in advance that they will need to have blood products at least once during their life at some point. More commonly, there is no relationship of proximity sufficient to justify the existence of duty between the Secretary of Health and an individual patient.

3. Duty owed to non-patients and third parties?

Thirdly, might doctors or other medical practitioners owe duties to non-patients? Consider the following scenarios:

Wrongful pregnancy - where sterilisation has been carried out negligently, or a patient advised negligently about its success, it is possible (for women) to recover damages for pain and discomfort associated with pregnancy and childbirth. For men, no damages are recoverable (e.g. for normal costs of raising a child, but an exception might be made for special costs), but the man’s female partner may be able to recover, if she was within the doctor’s contemplation at the time of the sterilisation operation. Indeed, a doctor does not owe a duty to all of the patient’s future sex partners (Goodwill v BPAS).

Psychiatric injury - the claimant (third party) must have a close relationship with the primary victim (who suffered from medical negligence); be close both in terms of time and space to the incident, and they must witness it (or its immediate aftermath) with unaided senses; and must suffer a recognisable psychiatric illness as a result (together, the Alcock criteria). Again, this leads to some arbitrary results: in Sion v Hampstead, a father who stayed in hospital with his son, who lapsed into a coma and died 14 days after a motor vehicle accident, unsuccessfully claimed in damages for his own psychiatric illness as a result of medically negligent treatment on his son because there was no sudden appreciation by sight or sound of a horrifying event; whereas in North Glamorgan v Walters, a mum whose newborn’s death was a result of the defendant’s negligence, and who witnessed the newborn’s distressing final 36 hours, was said to have the requisite shock; and in Liverpool Womens Hospital v Ronayne, where the claimant observed a rapid deterioration in his wife’s condition after a negligently performed hysterectomy, unsuccessfully claimed for damages because there wasn’t the necessary element of suddenness and shock horror (using the language of the court in Alcock, a ‘sudden appreciation by sight or sound which leads to a violent agitation of the mind’).

What about psychiatric injury to a third party as a result of being communicated traumatic information by medical professionals? Does this fit into the Alcock criteria? In Page v Smith, the court held the claimant had to be a primary victim, and to be within the range of foreseeable physical injury. However, in Farrell v Avon Health, where the claimant arrived at hospital, and was wrongly told that his newborn baby died, and was given a dead baby to hold for 20mins, and then told that they had been mistaken, the father claimed for PTSD damages, as a result of being directly involved in the traumatic incident.

Criticising the current requirements at law, Case has argued that it is unlikely the ‘sudden shock’ will normally be satisfied in a controlled hospital environment. Ahuja has also argued that the law’s limiting criteria bears no resemblance to evidence of what is actually traumatic for bereaved...