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Common law applied in Medical Negligence: Duty of care/ Standard of Care Katarzyna Gromek Common law applied in Medical Negligence: Duty of care/ Standard of Care Katarzyna Gromek Broc University of York

Responsibility versus Liability n n What happens if a patient is harmed or suffered Responsibility versus Liability n n What happens if a patient is harmed or suffered adverse impact of a treatment received in hospital or provided by doctor? Who is to blame? Before we can raise liability we need to establish responsibility Could we establish responsibility? Whose fault was it?

Responsibility in medical negligence n In medical negligence cases it is sometimes difficult to Responsibility in medical negligence n In medical negligence cases it is sometimes difficult to demonstrate that the harm was caused by the health professional's conduct since there might be a variety of possible explanations of an adverse impact of treatment due to the complexity and inexactitude of medicine.

Responsibility versus liability n n n n Difficulties in medical negligence cases to establish Responsibility versus liability n n n n Difficulties in medical negligence cases to establish responsibility Why? multiplicity of factors could cause injuries or where for example, the doctor failed to attend the patient. progression of illness “unknowns” in medicine that expertise cannot reveal. The drugs could have so far unknown side effects there is more than one agent at work.

Medical Malpractice n n n Overview Overall patients are satisfied with the National Health Medical Malpractice n n n Overview Overall patients are satisfied with the National Health System (NHS): 90 percent of patients are happy with treatment they received. However, incidents and errors happen Each year around 400 people die or suffer serious injuries as a result of treatment in hospital. Available data indicate that 11 per cent of patients in hospital experienced adverse impact of treatment, of which over a half were preventable of ordinary standards if care were respected. In 2004, 44 percent of NHS staff reported witnessing an error or near error What are the legal consequences of the situation where a person has suffered harm through treatment provided by a health professional?

Medical Malpractice n n n What can patient do? Actions available to them Civil Medical Malpractice n n n What can patient do? Actions available to them Civil Action in tort of negligence: action for damages Disciplinary proceeding but no compensation Criminal Action for gross misconduct, manslaughter

Civil Action for damages in the tort of negligence n n n n We Civil Action for damages in the tort of negligence n n n n We need to clarify a certain number of points. For example, Who is responsible? in which situations liability may arise? is liability contractual or not, what is negligent care, what standard of care is expected from the physician? what is the criterion for professional negligence? did a duty of care exist or not?

Action for damages in tort of negligence n n In order to be successful Action for damages in tort of negligence n n In order to be successful the claimant must be able to demonstrate three things. First, that the health professional owed him a duty of care. Secondly, that the health professional breached the duty of care (also when care was not of appropriate standard). Thirdly, that the claimant must prove causation namely that he suffered harm caused by breach.

A) Duty of Care n n n Who should bear the duty of care? A) Duty of Care n n n Who should bear the duty of care? Why is it so important to establish that the duty of care existed? When does it start?

Duty of care n In English law, unlikely in civil law countries, there is Duty of care n In English law, unlikely in civil law countries, there is no 'Samaritan' duty of care. In systems based on codification, the codes impose the obligation of assistance not only for medical practitioners and supporting staff but also on every individual who has a duty to rescue and provide assistance for the person in peril. Abstaining from providing aid is punishable in criminal law.

A) Duty of care n n n In English law, the relationship between two A) Duty of care n n n In English law, the relationship between two strangers could not impose liability since it would be considered by the courts as not sufficiently 'proximate' and non 'just and reasonable' for liability to arise. English common law does not impose the duty to rescue of a stranger, "however grave the emergency and regardless of how easy it would be to render effective help". It is generally well accepted that there is no duty on a health practitioner to treat unless the person to be treated is already their patient or they do so at their will.

A) Duty of care n n Stuart-Smith LJ said in Capital and Counties plc A) Duty of care n n Stuart-Smith LJ said in Capital and Counties plc v Hampshire County Council, “the mere physical proximity between a doctor and a sick person, of itself creates no duty to treat. “ Thus, by analogy, the doctor does not owe a duty of care to a patient who falls ill in a public place in the presence of a doctor.

Duty of Care n n Contrary, the law seems to “punish'“ a doctor who Duty of Care n n Contrary, the law seems to “punish'“ a doctor who tries to help a stranger and involuntarily aggravates his or her condition. From the moment he intervenes, “he is under duty not to make the victim's condition worse“. Since liability arises for providing improper or inadequate care. The law recognises the doctor-patient relationship, giving rise to duty of care from the moment the doctor started treating a stranger. In Horsley v. Mc. Laren it was decided that "once a doctor begins treatment he must do all he reasonably can to save the rescue, who is now his patient".

Duty of care n n A duty of care is owed by a general Duty of care n n A duty of care is owed by a general practitioner to a patient who is registered with him/her and has consulted him/her on the relevant issue. A general practitioner does not have an obligation to find out by himself and visit a patient unless he is aware of the condition or the patient is over 70, or in special needs. In emergency situations, general practitioners, but not other consultants, have a statutory duty to treat anyone who is in immediate need in their geographical practice area. In the hospital treatment the duty of care is owed once a patient has been admitted to the hospital. In the emergency circumstances, the duty arises when the patient presents himself at the emergency unit even before he consulted a doctor.

Duty of care: emergency services n n Before 2001, there was no duty of Duty of care: emergency services n n Before 2001, there was no duty of care imposed on emergency services such as ambulance, police, fire fighters or coastguards. Howarth commented: “this is the extraordinary rule. . . that the public rescue services have no duty to rescue anyone”. In the 2001 Kent decision, this duty was extended to require ambulance services to respond on the 999 call within a reasonable time. Kent v Griffiths [2000] 2 All ER 474 (CA)

A) Duty of care n Barnett v Chelsea. Three night watchmen presented themselves at A) Duty of care n Barnett v Chelsea. Three night watchmen presented themselves at a casualty department complaining that they had been vomiting after drinking tea at work. The nurse informed the casualty doctor by telephone about the symptoms. The casualty doctor, unwell himself, instructed her on the phone to tell the men to go home and to see their general practitioners. He did not personally examine them. Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428

Duty of care: Barnett Chelsea n n The main question in this case concerned Duty of care: Barnett Chelsea n n The main question in this case concerned the relationship between the three men and the hospital staff. The Court found that a duty of care existed and was breached by the failure of a doctor to attend the patients and to make a proper diagnosis. Nield J held “In my judgment, there was here such a close and direct relationship between the hospital and the watchmen that there was imposed upon the hospital a duty of care which they owned to the watchmen. Thus I have no doubt that nurse Corbett and the medical casualty officer were under the duty to the deceased to exercise that skill and care which is to be expected of persons in such positions acting reasonably. ”

Duty of care (acceptable standard of care) n n n Liability arises not only Duty of care (acceptable standard of care) n n n Liability arises not only when the doctor fails to attend his patient but also in relation to the quality and suitability of treatment. But how does the law set up the boundaries of what is an acceptable standard of care? In Wilsher, an inexperienced, junior doctor inserted by mistake a catheter into a vein rather than an artery to an infant. The Court of Appeal held that Health Authority is under obligation to provide skilled treatment and financial stringency under which hospital operates provided no defence to an action in negligence

A) Duty of care/Standard of care n n in Bull v Devon AHA on A) Duty of care/Standard of care n n in Bull v Devon AHA on what is to be expected as a reasonable standard of care. Mrs Bull gave birth to a disabled child that was due to the asphyxia caused by the delay during the delivery because a doctor was not available to attend her. The hospital had maintained services on two sites and the system for summoning doctors had broken down. The Court of Appeal decided that the system failed to provide her an acceptable standard of care. Bull v Devon AHA [1993] 4 Med LR 117 (CA)

Standard of care/ Developments n n The House of Lords’ decision in Chester v Standard of care/ Developments n n The House of Lords’ decision in Chester v Afshar, a failure to inform the patient of the possible adverse consequences of surgery, gave rise to liability. Miss Chester suffered lower back pain. She was referred to Dr Afshar, a neurological specialist who did not inform her about the risk of the operation: ‘had Miss Chester been warned, it was a duty of the doctor to warn her’. Therefore, the doctor would not perform up to acceptable standard if he did not warn the patients about possible risks. Chester v Afshar [2004] 4 AA E. R. 587

B) Breach of duty of care n n n if the health practitioner (doctor, B) Breach of duty of care n n n if the health practitioner (doctor, hospital) failed to provide duty of care if the care provided was not appropriate standard But how do we assess appropriate standard?

Assessing Standard of care n n The leading case providing a test on what Assessing Standard of care n n The leading case providing a test on what is the appropriate standard of care is the House of Lords decision in Bolam. Mr Bolam had some mental health problems and his doctor subjected him to electro-convulsive therapy without administering him a relaxant drug and without restraining his movement. As a consequence Mr Bolam suffered a fractured hip and some other minor injuries. He claimed that the hospital was vicariously liable for the carelessness of its doctor Bolam v Friern HMC (1957] 2 All ER, 118

Assessing Standard, Bolam test n n Mc. Nair J in Bolam considered that a Assessing Standard, Bolam test n n Mc. Nair J in Bolam considered that a person falls below the appropriate standard, and is negligent, if a person fails to do what a 'reasonable' person would have done in the similar circumstances. “ “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not to possess the highest expert skill at the risk of being found negligent. It is a well-established law that it is sufficient if he exercises the ordinary skill of an ordinary man exercising that particular art"

Assessing Standard n n One of the important findings in Bolam is that it Assessing Standard n n One of the important findings in Bolam is that it is not up to a judge to decide what appropriate standard of care is but it is up to the expert professional body 'a judge is not in the position to choose between the views of competing medical expert opinions. As long as there is a competent school of thought that believed the defendant's actions were reasonable the judge will find the defendant had not been negligent. ”

Assessing Standard n n The Bolam test is standard-reflecting and not standard-setting: it reflects Assessing Standard n n The Bolam test is standard-reflecting and not standard-setting: it reflects only the standard of current practice. The professions can sometimes develop unreasonable practices. Some practices may develop in professions, not because they serve the interest of the clients, but because they protect the interests and convenience of members of the profession

Assessing Standard n n n Change of the wind the Bolam test was challenged Assessing Standard n n n Change of the wind the Bolam test was challenged in the Bolitho decision The facts concern a two year old boy admitted to hospital with respiratory problems. The boy suffered two acute respiratory attacks while in hospital but the doctor did not attend him. The boy however recovered. The third time, child collapsed with a failure of his respiratory system that led to a cardiac arrest. As a consequence he suffered a severe brain damage. The child died shortly after. Bolitho v City & Hackney Health Authority [1998] AC 232

Assessing Standard: Bolitho n n Lord Browne-Wilkinson held Assessing Standard: Bolitho n n Lord Browne-Wilkinson held "the court has to be satisfied that the opponents view of the body of 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 responsible, reasonable and respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparable risks and benefits and have reached a defensible conclusion in this matter

C) Proving causation in medical negligence cases n In the civil action for damages, C) Proving causation in medical negligence cases n In the civil action for damages, the patient adversely affected by treatment not only has to demonstrate the existence of a duty of care, the breach of this duty and the negligence of the health professional but also a direct link between the negligence and his/her injury.

C) Proving causation n English law uses the well known “but for” test to C) Proving causation n English law uses the well known “but for” test to demonstrate factual causation. The claimant needs to show that 'but for' the doctor's negligence he would not have suffered harm. In Barnett v Chelsea, “But for” the doctor's failure to attend the night watchman, he would not have died. The breach has been a principal cause of death. Nield J in Barnett concluded “I find that the plaintiff has failed to establish, on the grounds of probability, that the defendant's negligence caused the death of the deceased. "The claimant was not able to satisfy “but for” test because “on the balance of probabilities” the man would have died of arsenic poisoning anyway. Barnett v. Chelsea and Kensington Hospital Management Committee, [1969] 1 QB 428 at 439

C) Proving causation n n In Medical negligence cases it is sometimes very difficult C) Proving causation n n In Medical negligence cases it is sometimes very difficult to prove causation The courts considered two further points negligent conduct "had materially increased the risk’ “lost of chance”

C) Proving causation n n Mc. Ghee, the claimant was exposed to brick dust C) Proving causation n n Mc. Ghee, the claimant was exposed to brick dust and suffered dermatitis but had difficulties to prove 'but for 'test. The House of Lords accepted causation on the basis that the negligent conduct "had materially increased the risk" of injury. in Gregg v Scott. the case failed on causation, the courts do not totally reject the possibility of successful action for negligent conduct "had materially increased the risk. Mc. Ghee v National Coal Board [1973] 1 WLR 1, Gregg v Scott [2005]UKHL 2

Conclusion n n n Conclusion In medical negligence cases it is difficult to establish Conclusion n n n Conclusion In medical negligence cases it is difficult to establish responsibility and a result of it liability Should the law be reformed? We need to stress that a good medical law is an ethical law and the numerous decisions concerning medical malpractice manifestly reveal a need for judicial acknowledgment of ethical dimension of negligence. Generally speaking the law should endorse moral imperatives and preserve the principles of delivering justice.

Further reading n n Lord Woolf, Are the Courts excessively Differential to the Medical Further reading n n Lord Woolf, Are the Courts excessively Differential to the Medical Profession? , 2001, 9 Medical Law Review, 1 -16, at 3 Williams K, Litigation against English NHS ambulance services and the rule in Kent v Griffiths, 2007, 15(2) Medical Law Review, at 157