Duty of care, standard of care and negligence Flashcards
Definition of battery
- Non-consensual physical contact
- There does not have to be damage
- Patient must prove they did not consent
- Defendant may be liable for all subsequent damage as a result of the battery
Elements of negligence
Duty of care: whenever one can resonably forsee that their conduct may cause harm to someone else
Breach of duty: claimant must show the defendant fell below the required standard of care
Causation: the claimant must establish their condition was worsened or unimproved condition was caused by the doctor’s negligence
All three elements must be present
What is the bolam principle?
Medical profession for standard of care is gauged by the Bolam test:
A doctor is not guilty of negligence is they have acted in accordance with a practice accepted at the time as proper by a responsible body of medical professionals in that partiular area (even though other doctors may adopt a different practice).
How is negligence of a doctor assessed?
A doctor is to be judged on the state of knowledge at the time of the incident
To have a defence, the doctor needs to show that they acted above the minimal acceptable practice
The standard of care of a professional is expected to exercise is the same standard as those in the same speciality or profession.
The court will take into account the situation in which professionals find themselves.
Difficultes in proving causation in negligence
Need to consider if the claimant’s injuries were caused by:
The doctor’s breach of duty
The injured person’s pre-existing condition
Unclear or multiple causes
The deprivation of an opportunity to recover.
Give three examples of negligent behaviour
Material increase of risk: defendant can be liable for increasing a risk even though the claimant can’t establist precise causation
Failure to examine: where a defendant fails to attend to a patient, and the patient suffers injury it must be demonstrated that had the defendant attendended it would not have made a difference to management.
Lost chance of treatment: due to late diagnosis. Loss of less than a 50% chance of recovery is not recoverable i.e. if the probability that the patient would have recovered if they had been properly diagnosed initially is less than 50%
Failure to warn: If a medical professional fails to warn of a risk of a procedure and the risk materialises even if the patient would have undergone the procedure if properly advised (not fully informed consent at the time)
