Law of Negligence, Medical Mistakes and Patient Safety Flashcards
What is the 3 components of the tort of negligence?
- Must owe the the patient a duty of care
- The doctor must breach that duty of care, they must be negligent
- This breach must cause the patient’s harm
What is the definition of duty of care in the law?
What is the neighbourhood principle?
- in cases where the positive acts of a private individual cause physical damage, the existence of such a duty of care can be assumed
- It is commonly described as the neighbourhood principle: you could a duty of care to your neighbour
What is duty of care as applied to doctors?
Practitioner ows a duty to patients on his list
Hospital and its entire staff own a duty to patients admitted for treatment
Reasonable care and skill in diagnosis, treatment and advice
What is the definition of standard of care?
Civil negligence consists of falling below the standard of care required for the circumstances to protect others from the reasonable risk of harm
Bolam = the standard of care is that of a reasonable doctor
A doctor will not be negligent if they act in accordance with a practice accepted as proper by a reasonable body of medical/professional opinion
How is the standard of care affected by reasonable skill and experience?
inexperience of lack of skill is not an acceptable excuse
If you are unsure about your competence to perform any treatment or test: refer on or ask for your work to be supervised/checked
Reasonable and responsible practice:
What is the bolitho test?
Now medical practice is subject to a reasonableness and responsibility test.
Which means that the court can review common practice to ensure that it is reasonable and responsible
What is the chain of causation?
What is the ‘but for’ test?
The claimant must prove that the defendants acts or omissions were responsible for their loss
The paitients harm must have been caused by the defendants negligence
Patient must prove that ‘but for’ the doctor’s negligence they would not have suffered harm
Claimant must prove more likely than not (balance of probalities)
What are the two types of clinical negligence?
Treatment or Diagnosis:
Poor clinical practice –> human factors –> patient safety
Consent:
Not enough information given about the side effects and risks of the treatment and therefore if the patient had known all of the information they would not have consented to the treatment and would not have suffered the risks or side-effects
What were the implications of the Montgomery case?
What is a material risk?
The doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks invalid in proposed treatment and of reasonable alternatives
A risk is material is a reasonable person in the patients position wold be likely to attach significance to it, or if the doctor is or should be reasonabky aware that their patient would be likely to attache significance to it?
“A patient is entitled to take into account her own values and her choices must be respected, unless she lacks capacity. She is at least entitled to information enabling her to take part in the decision
What are the 3 elements of crime of gross negligence manslaughter?
The defendant must owe the patient a duty of care
The doctor must fall so far below the standard of care to warrant criminal and moral culpability
This breach must cause the patients death
What are the human factors that lead to medical mistakes and negligence?
safety culture managerial leadership communication teamwork team leadership situation awareness decision-making stress fatigue work environment
- What is negligence?
- What are the penalties for being found negligent?
- Who are the parties in a trial and what do they have to prove?
- Who defines negligence, legally?
- Is health care negligence different from other forms of negligence?
- Who determines liability?
- Can a person run out of time to bring a legal action?
- Carelessness in everyday terms.
- Dealt with in courts. Civil trial when patient is suing a doctor, cannot go to jail. Patient gets damages. If you kill a patient –> criminal trial –> jail
- Patient and hospital usually
- The law, increasingly looking at GMC to determine what is negligent
- Used to be a jury, now is a single judge
- Personal injury claim within 3 years of discovery of accident
What is the case if Donoghue v Stephenson?
Cafe in Glasgow. Ms Donoghue, drinking ginger beer in 1928. Give you a can and a glass, where the whole can couldn’t fit in the glass. Remains of a snail in second glass. Extreme gastroenteritis. Wanted to sue the manufacturer. Couldn’t use law of contract because her friend had bought the drink. House of Lords came up with the Neighbour principle. Owe a duty of care to your neighbour.
Describe the case of Bolam. Did he win the case?
Electric Convulsive Therapy. Two schools of opinion. Control should be administered vs such control (restraint) was dangerous in itself.
Patient did not win the case because they acted in accordance with one school of opinion so did not fall below the standard of care
Roe v Minister of Health
Have they breached the standard of care?
Patient paralysed after anaesthetic contaminated with disinfectant. Stored in ampoules placed in disinfectant that had seeped through the invisible cracks. This was not generally considered possible.
The court decided that they hadn’t but it wasn’t seemed to be reasonably foreseeable.
If it happened again then yes they would have breached the standard of care
