Legal duty of care and assessing negligence

Question 1

Define negligence?

Answer 1

A form of tort (civil wrong) that occurs due to failure to behave with the level of care that a reasonable person would have exercised under the same circumstances

Question 2

Why does negligence arise from a doctor’s duty of care?

Answer 2

Duty of care refers to duty to act reasonably to those around us who are likely to be affected by our acts

Not following this duty can lead to failure to act reasonably which can lead to negligence

Question 3

Give 8 examples of clinical negligence?

Answer 3

Delayed diagnosis
Misdiagnosis
Incorrect treatment eg. Prescribing inappropriate medication
Surgical mistakes eg. Operating on wrong organ
Damage to child before, during, after birth
Not giving person the treatment they need
Not being informed about all treatment risks
Delayed treatment

Question 4

Is a Never Event an act of medical negligence?

Answer 4

Yes

Never Event: Serious Incidents that are wholly preventable

Question 5

What are the 4 required claims to establish negligence?

Answer 5

Claimant was owed duty of care

Duty of care was breached

Claimant has sustained an injury

Causation: Injury was caused by that breach of duty

Question 6

What is meant by using a ‘balance of probabilities’ decision to establish negligence?

Answer 6

Decision regards standard of proof

Question 7

Why should doctors always document any assistance or advice that they have recieved from senior colleagues?

Answer 7

Provides proof that the duty of care for the patient that is giving negligence claim is the senior colleague’s responsibility

Question 8

How is the bolam test used to determine that a doctor has not breached their duty of care?

Answer 8

Bolam test states that doctor is not guilty of negligence if:

they acted in accordance with a practice accepted as proper

by a responsible body of medical opinion

skilled in that particular speciality

Question 9

Is bolam test applied to negligence claims where the duty of consent and confidentiality was breached?

Answer 9

No

Question 10

If a claimant has a body of medical opinion that agrees that they are right in providing a negligence claim, does the bolam test still need to be performed?

Answer 10

Yes, the doctor being accused of negligence still needs to be judged by peers in the same body of medical opinion that they practise in according to bolitho review

Question 11

According to bolitho review, who is the final determinant in establishing negligence?

Answer 11

Court

Question 12

Why must doctors always document reasoning behind deviating from guidelines, in order to provide proof that they were not negligent?

Answer 12

Judges are increasingly using NICE, GMC, Royal Colleges guidelines to determine appropriate standard

Question 13

When the court determines if the doctor’s standard of care led to negligence, how high should the threshold of appropriate standard of care be?

Answer 13

Threshold standard of care must be attained by ordinary competent practitioner in that field, not highest skilled

If doctor acts below threshold, this shows negligence

Question 14

What are 3 pieces of evidence needed from peers that are defending the doctor from the negligence claim?

Answer 14

Peer is from a reasonable body of doctors

Peers are skilled in that particular speciality

Peer would have done the same as the defendant doctor

Question 15

Give one example of negligence in general surgery?

Answer 15

failure to remove symptomatic tissue/organ

Question 16

Give one example of negligence in histopathology?

Answer 16

failure to diagnose cancer biopsy

Question 17

What is the ‘but for’ test, in determining whether causation of injury is due to duty of care breach in establishing a negligence claim?

Answer 17

‘But for’ test: would the injury still have occurred to claimant in any event, even without the defendant’s negligence, which is determined by balance of probabilities

Question 18

If a man went to a doctor and was sent home to see a GP the next day, but died of arsenic poisoning can you establish causation in a negligence claim, as the doctor didn’t examine him for arsenic poisoning?

Answer 18

No, man would have died anyways even if he was examined and treatment would have no effect according to balance of probabilities decision

Claim failed on causation

Question 19

What is meant by the damages that are given to patients who have proven negligence

Answer 19

They are awarded compensation

Question 20

When provisional damages are given to patients who have proven negligence, is the defendant doctor solely blamed for the sustained injury?

Answer 20

Defendant has accepted they are to blame for the accident or disease

Question 21

When provisional damages are given to patients who have proven negligence, has the patient made a full recovery from the sustained injury?

Answer 21

Claimant has not yet made a full recovery from their injuries, and are unlikely to recover from their injuries in the foreseeable future

Question 22

Explain the position that the defendant doctor and claimant patient are in, when negligence has been proven and they are awarded provisional damages?

Answer 22

Defendant doctor caused the sustained injury

Claimant patient hasn’t made a full recovery yet and isn’t likely to in foreseeable future

Question 23

What is the difference between provisional and general damages awarded after proven negligence?

Answer 23

General damages are considered for inevitable and direct harm that arose eg. pain, suffering, permanent disability

Provisional damages are considered for harm that has potential to deteriorate

Question 24

Are special rules applied to clinical negligence cases compared to non-clinical negligence cases?

Answer 24

No, all negligence cases aim to put claimant in same position that they would have been in if there was no negligence

Question 25

If negligence is proven, can damages be awarded more than once?

Answer 25

No

Question 26

What is meant by vicarious liability?

Answer 26

Rule of law that imposes strict liability on employers for the wrongdoings of their employees

Question 27

Are Integrated Care Boards (ICBs) and NHS Trust hospitals vicariously liable for their employees negligence?

Answer 27

Yes

Question 28

When was NHS indemnity for all staff against legal liability introduced?

Answer 28

1990

Question 29

Since 31 March 1995, which scheme covers all NHS Trusts for negligence claims, and who runs this scheme?

Answer 29

Clinical Negligence Scheme for Trusts (CNST)

Run by NHS litigation authority/ NHS resolution