Clinical Risks and Negligence Flashcards
Medical Error: Key Points?
Rarely due to poor performance- eg
Usually systemic problems - therefore Best solution is: systemic improvement
Rarely “one offs”
“blame culture” is not healthy
Outcomes of medical errors?
Describe the fitness to practice panel by the GMC
Take no actionto take no action
To accept undertakings offered by the doctor if
the panel is satisfied that such undertakings protect
patients and the wider public interest
To place conditions on the doctor’s registration
To suspend the doctor’s registration
Erase the doctor’s name from the Medical Register,
so that they can no longer practise.
Medical error and the law?
In order to prove negligence in a civil suit the
plaintiff must prove what three things?
- The doctor had a duty of care
- The duty of care was breached
- The breach of the duty of care caused harm
What are the basics of duty of care?
Drs have a duty of care towards anyone with whom they have a doctor-patient relationship.
It is easy to establish that a doctor had a duty of care.
NHS also has vicarious liability for the errors that doctors employed by the NHS make.
Note: GP’s are sued directly.
You do not have the legal duty to help (no UK samaritan Law), but the GMC requires doctors to help if they can
GPs have duty of care to their catchment area; hospital doctors have duty of care within hospital grounds
It is difficult to establish a breach in the duty of care.
In order to know whether the duty of care was breached, we need to know what the duty of care amounts to:
This means that we need to know what the expected standard of care is.
What is the legal standard of care?
According to Bolam a doctor is not guilty of negligence “if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”
According to Bolitho a doctor is not guilty of negligence if his actions have a “logical basis”
The Bolitho test ensures that, although medical experts will still play a vital role in determining the standard of care, judges are more willing to scrutinise the rationale behind doctors decisions.
Describe the concept of damages
If negligence is proven then the “outcome” for a civil case of negligence is “damages”.
Damages may be awarded for both physical and mental/emotional harm as well as for loss of earnings and higher costs (e.g. if there is now a disability)
Note: damages might be reduced by concept of “contributory negligence”
Explain how prescriptions can be a major source of error
If you sign a prescription (even on the advice of another) YOU are legally responsible.
Four-fold duty
- correct patient name and drug name
- no comparative or absolute contraindications
- correct dose and directions are given
- provision for appropriate monitoring/follow up
What is the limitation period?
What else is taken into account or not when determining negligence?
Lack of expertise IS taken into account when determining negligence.
Doctors do not have to be experts in all things medical. Thus a rheumatologist does not have to have the skills of a cardiac surgeon.
However, doctors have a duty to refer to someone who does have the relevant expertise.
Lack of experience is NOT taken into account when determining negligence in legal settings.
If doctors are not competent to proceed they should seek senior advice and assistance. Do NOT “go it alone”. seek advice/help.
What is the litigation crisis?
The common response to the fear of litigation is “defensive medicine”, but what exactly is defensive medicine and why is it problematic?
Defensive medicine is…
“the practice of performing tests as a safeguard against possible malpractice liability rather than to ensure the health of patients”
Defensive medicine is also…
- rarely a sustainable explanation for action
- makes litigation more likely (unnecessary investigations/treatment)
- very expensive
What are some solutions to this current system?
British solution: NHS Redress Act 2006: gives patients an alternative to litigation and does not involve the court system
Deals with claims of <£20,000
Aims to move away from the blame culture, to reduce costs and to “preventing harm”, “reducing risks” and “learning from mistakes”.
Kiwi (new zealand) solution: No fault scheme
Compensation is paid to people who suffer harm following medical treatment REGARDLESS of whether the harm was caused by negligence.
