Clinical Negligence The Law Flashcards
When does clinical negligence arise - 3 conditions?
When a medical practitioner of institution:
1. Duty of care
2. Breach of duty of care
3. Patient suffers injury and losses as a result of the breach of duty which were reasonably foreseeable
Who is liable when a medical practitioner or other member of staff acts negligently?
- the medical practitioner or other staff member
- The Trust or other organisation is vicariously liable for the actions of its staff
- The Trust itself owes a duty of care to the patient and can be sued without the claimant having to prove negligence on behalf of an individual practitioner
What is the legal test for breach of duty?
Bolam test as modified in Bolitho
A doctor is not guilty of negligence if he has acted in accordance with a responsible body of medical opinion (minority 10% rule) as long as the opinion relied upon has a logical basis.
What is the legal test for causation in clin neg cases?
- ‘But for’ causation does what it says on the tin: if the expert evidence establishes on the balance of probability that ‘but for’ the defendant’s error the harm would not have occured then the claimant will succeed.
- Material contribution can also be pleaded in cases where medicine can’t say whether the claimant would or would not have suffered the injury on the balance of probabilities (but for the breach), but can say that the error made a material contribution to the injury.
Define legal causation and factual causation
- Factual causation refers to the actual cause-and-effect relationship between an action and its consequences.
- Legal causation determines whether the action is legally responsible for the consequences.
Legal causation is determined on the ‘but for’ test – but for the negligence, would the injury still have occurred? Factual causation is proving that the injury was caused by the defendant’s failure.
What is meant by divisible and indivisible outcomes?
- Divisible injuries are those where it is possible to delineate the extent of the injury which would have happened anyway from that caused by the defendants negligent acts(s) - defendant only partially liable.
- Indivisible injuries are those where there is more than one cause for the outcome/ injury (in addition to the negligent act) and it is not possible to distinguish the the contribution of the negligent act(s) - fully liable.
The Claimant in Holmes developed Parkinson’s Disease and at first instance this was found to have been materially contributed to by his negligent exposure to chemicals at work. The Defendant appealed arguing that Parkinson’s was an indivisible disease to which material contribution did not apply. The Court of Appeal held that material contribution applies to both divisible and indivisible injuries. Mr Holmes still lost though, the Court of Appeal finding that there was not enough evidence that his chemical exposure had materially contributed to his Parkinson’s, only that it might have done.
clinical negligence practitioners can concentrate on the real issue in material contribution: i.e. a) would the outcome probably have been the same in any event and b) has the breach of duty more than negligibly contributed to the outcome, without being distracted by the side-issue of whether or not the injury is divisible or indivisible.
Causation and loss of chance
As causation must be proved on a balance of probabilities, a claimant cannot claim for a lost chance of recovery, where the chance of recovery would be low in any event. Gregg versus Scott and cancer of lymph gland - no lost chance of recovery as prospects poor in any event.
Causation and failure to attend
Bolitho versus City and Hackney courts consideration:
1. Fact finding - what would the SHO have done if she had attended - would not have intubated the child (fact finding Bolam not relevant)
2. Would the failure to intubate have been negligent - Bolam relevant - a reasonable body of opinion would have supported her decision not to intubate. Failure to attend did not cause the outcome. Defendant won.
What are the potential consequences where a a practitioner acts without consent?
- Criminal prosecution for battery
- Civil proceedings under tort of trespass.
When can a child consent
Age 16 - may be Gillick competent prior to this
When is it possible to treat without consent?
- In an emergency situation where treatment is needed to save life or health.
- In some instances under MCA
Refusal of consent e.g. pregnancy
Adults of sound mind can refuse to consent to treatment even where it may lead to their death - pregnancy - court not able to take account of foetus t Georges versus Collins.
Failure to advise of risk and consent - Montgomery versus Lanarkshire HB.
- A doctor is under a duty to take reasonable steps to ensure that patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments
- Test of materiality is whether in the circumstances, a reasonable person in the patient’s position would be likely to attach significance to the risk or the doctor was aware (or should have been aware) that this PARTICULAR patient would be likely to attach significance. It is a matter for the Court to decide whether a risk was material – not subject to Bolam and not something that can be determined by expert evidence.
Causation and consent - what is the legal test for claim of negligence
In a case where there has been a failure to warn (breach), claimant must show that the breach caused the injury/outcome. If a patient would have consented in any event - causation is not established/ vice versa. Chester versus Afshar (rare)- small risk/ known complication/ surgery not performed negligently - patient was unable to say that she would never have had the op and the failure to warn did not increase the risk - claim failed.
