Law of negligence, medical mistakes and patient safety

Question 1

What are the penalties for being found negligent?

Answer 1

Reported to GMC

Fitness to compromise is jeopardised

Question 2

Who determines liability?

Answer 2

Used to be a jury but it was too expensive for civil cases, so now a judge does it

Question 3

Can a person run out of time to bring about legal action?

Answer 3

Yes, 3 years from the date of the accident/discovery of the accident - this is because evidence gets lost overtime

Question 4

What are the 3 elements that patients have to overcome to sue a doctor?

Answer 4

To be negligent in law:
1) The defendant: doctor/HCP must owe the claimant a DUTY OF CARE - prove the doctor/hospital owed them their care

2) The doctor/HCP must be in BREACH of that duty - this is harder to prove, as you need to prove carelessness
3) This breach must CAUSE the patient’s harm - hardest to prove

Question 5

What is the definition of duty of care ?

Answer 5

in cases where the positive acts of a private individual cause physical damage, the existence of such a duty of care can be assumed

Question 6

How did the neighbour principle arise?

Answer 6

you owe a duty of care to your neighbour = this is automatically activated by doctor-patient relationship
Legal principle is from the case : Donoghue vs stephenson

A lady had drunk a bottle of ginger beer that her friend had bought her, and it had a decomposing snail in it, causing her to suffer severe gastroenteritis but because she didn’t buy the drink she could sue the manufacturer

Question 7

What are the differences between civil trial and criminal trial?

Answer 7

Civil trial

• doctor can’t go to jail
• compensation is given to the patient
• doctors normally have subscriptions to MDU or MDS so they payout not you

Criminal trial

• when a patient dies
• crown court
• can be sent to jail

Question 8

In terms of doctors/HCPs, what does it mean by duty of care?

Answer 8

Practitioners owe a duty to patients on their list
Hospital and its entire staff own a duty to patients admitted to treatment
Reasonable care and skill in diagnosis, treatment and advice

Therefore all a patient really has to do is prove you were their doctor

Question 9

What is the definition of standard of care in terms of civil negligence?

Answer 9

Civil negligence consists of falling below the standard of care required in the circumstances to protect others from the reasonable risk of harm

It is that of the reasonable doctor/HCP

Question 10

What is the classic definition of standard of care and what does it means?

Answer 10

Bolam v Friern hospital management committee of 1957

A doctor/HCP will not be negligent if they act in accordance with the practice accepted as proper by a responsible body of medical/professional opinions = therefore if you are doing the same as your colleagues you will not be held as negligent

Question 11

What is the Bolam test?

Answer 11

Common practice, therefore is the standard and is not set by the GMC, NMC, RPS etc.

It is not based on the best doctor but on the ordinary skilled and experience doctor/pharmacist/nurse

However, if you hold yourself as having specialist skills you will be held against those others with specialist skills

However it is important to note that the law makes no exceptions for lack of experience or lack of skill

Question 12

What should you do if you are unsure of your competence?

Answer 12

refer on the task or ask for your work to be supervised/checked

Question 13

The Bolam has been modified now, what is the updated test and what does it mean?

Answer 13

Modified by Bolitho v City & Hackney 1997

Now medical practice is subject to reasonableness and responsibility test

This means that the court can review common practice to ensure that it is reasonable and responsible, therefore even if all HCPs are doing the same you can still be negligent if the court judges it not to be reasonable and responsible

Question 14

What does it mean by chain of causation?

Answer 14

The claimant must prove that the defendant’s acts or omissions were responsible for their loss
- patient’s harm must have been caused by the defendant’s negligence

Question 15

What is the “but for” test?

Answer 15

the patient must prove that “but for” the doctor’s negligence they would not have suffered harm

Must prove more likely than not (whereas on balance of probabilities = standard of proof in all civil cases)
- criminal trial proof needs to be beyond reasonable doubt

Question 16

Why is it sometimes difficult for the patient to prove the doctor was the cause of their harm?

Answer 16

because they are likely to have already got a physical illness (often progressive) therefore its very difficult to attribute to doctors negligence - could have occurred naturally

Question 17

What are the two types of civil negligence?

Answer 17

Treatment or diagnosis: poor clinical practice - human factors - patient safety
Consent:not given sufficient information about the side effects and risks of the treatment therefore if the patient had known all the information they would not have consented to the treatment and would not have suffered the risks or side effects - negligently obtaining consent

Question 18

What were the implications of the Montgomery 2015 case?

Answer 18

doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in proposed treatment, and of reasonable alternatives

Question 19

What is a risk?

Answer 19

is “material” if a reasonable person in the patient’s position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that their patient would be likely to attach significance to it

Question 20

What are the 3 elements of the crime of gross negligence manslaughter?

Answer 20

1) doctor/HCP must owe the patient a duty of care
2) doctor/HCP must fall so far below the standard of care to warrant criminal and moral culpability
3) breach must cause the patients death

Question 21

What are the human factors that lead to medical mistakes and negligence?

Answer 21

safety culture
Managerial leadership 
Communication 
Teamwork
Team leadership
Situation awareness
Decision making
Stress
Fatigue 
Work environment