Legal duty of care and assessing negligence Flashcards
Define negligence?
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
Why does negligence arise from a doctor’s duty of care?
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
Give 8 examples of clinical negligence?
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
Is a Never Event an act of medical negligence?
Yes
Never Event: Serious Incidents that are wholly preventable
What are the 4 required claims to establish negligence?
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
What is meant by using a ‘balance of probabilities’ decision to establish negligence?
Decision regards standard of proof
Why should doctors always document any assistance or advice that they have recieved from senior colleagues?
Provides proof that the duty of care for the patient that is giving negligence claim is the senior colleague’s responsibility
How is the bolam test used to determine that a doctor has not breached their duty of care?
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
Is bolam test applied to negligence claims where the duty of consent and confidentiality was breached?
No
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?
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
According to bolitho review, who is the final determinant in establishing negligence?
Court
Why must doctors always document reasoning behind deviating from guidelines, in order to provide proof that they were not negligent?
Judges are increasingly using NICE, GMC, Royal Colleges guidelines to determine appropriate standard
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?
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
What are 3 pieces of evidence needed from peers that are defending the doctor from the negligence claim?
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
Give one example of negligence in general surgery?
failure to remove symptomatic tissue/organ
Give one example of negligence in histopathology?
failure to diagnose cancer biopsy
What is the ‘but for’ test, in determining whether causation of injury is due to duty of care breach in establishing a negligence claim?
‘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
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?
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
What is meant by the damages that are given to patients who have proven negligence
They are awarded compensation
When provisional damages are given to patients who have proven negligence, is the defendant doctor solely blamed for the sustained injury?
Defendant has accepted they are to blame for the accident or disease
When provisional damages are given to patients who have proven negligence, has the patient made a full recovery from the sustained injury?
Claimant has not yet made a full recovery from their injuries, and are unlikely to recover from their injuries in the foreseeable future
Explain the position that the defendant doctor and claimant patient are in, when negligence has been proven and they are awarded provisional damages?
Defendant doctor caused the sustained injury
Claimant patient hasn’t made a full recovery yet and isn’t likely to in foreseeable future
What is the difference between provisional and general damages awarded after proven negligence?
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
Are special rules applied to clinical negligence cases compared to non-clinical negligence cases?
No, all negligence cases aim to put claimant in same position that they would have been in if there was no negligence
If negligence is proven, can damages be awarded more than once?
No
What is meant by vicarious liability?
Rule of law that imposes strict liability on employers for the wrongdoings of their employees
Are Integrated Care Boards (ICBs) and NHS Trust hospitals vicariously liable for their employees negligence?
Yes
When was NHS indemnity for all staff against legal liability introduced?
1990
Since 31 March 1995, which scheme covers all NHS Trusts for negligence claims, and who runs this scheme?
Clinical Negligence Scheme for Trusts (CNST)
Run by NHS litigation authority/ NHS resolution
