Legal duty of care, Liability & Negligence, Good Samaritans Act

Question 1

What is negligence?

Answer 1

• a civil wrong= tort
• we have a duty of care to those who are likely to be affected by out acts or omissions
• e.g. duty of care to other road users - if we don’t = negligence

Question 2

E.g. of clinical negligence?

Answer 2

• delayed diagnosis
• surgical mistakes
• prescribing mistakes

Question 3

How is negligence established?

Answer 3

1. They were owed a duty of care
2. Duty of care was breached
3. Sustained injury
4. Injury was caused by the breach of duty of care

Question 4

What is duty of care?

Answer 4

A duty to provide care at a level reasonably expected of any competent doctor, nurse, midwife, surgeon

Question 5

How does breach of duty occur? What is Bolam test?

Answer 5

Only found guilty of negligence when he falls short of the standard of a reasonably skilled medical practitioner

The Bolam Test - Doctor did not act negligently if they acted in accordance with the opinion of a responsible medical body of opinion. Judged by your peers
- You are judged by your peers
- Need to prove an ordinary competent practitioner would of acted in the same way
- Clinical Negligence Scheme for Trusts (CNST) is insurance cover for ALL NHS staff

In a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis - the court can reject the medical opinion.

Question 6

What is liability?

Answer 6

Liability- being legally responsible

Patients are able to make claims for damages against doctors.
- same criteria as negligence!

Question 7

What is standard of care?

Answer 7

Ensures all patients receive appropriate treatment regardless of differences and protected characteristics.
- Specifies appropriate treatment based on scientific evidence & collaboration between medical professionals

Applies to specialties
- different degree of skill is required from GP vs. Specialist
- have to have the skill of the ordinary competent practitioner
- Judged by the standards at the time of the negligence - don’t judge 1947 through 1954 spectacles.

Question 8

Issues with Good Samaritan’s Act?

Answer 8

When a doctor, who is not on duty, helps in an emergency situation

A doctor has no legal obligation to treat someone who is not their patient.
- Has no greater duty than the hippocratic oath - professional duty to help not legal

If they do help:
-Must take into account your own competence & availability of other options & defer to them
- Must make a detailed record & obtain consent
- Explain your acts & treatment to the patient

Question 9

What is vicarious liability?

Answer 9

• NHS trusts are responsible for the acts & omissions for their employees
• Vicarious duty of care
• so the NHS trust has to pick up the claims not you
• NHS Indemnity - insurance scheme

Question 10

What happens if patient is able to prove negligence occurred?

Answer 10

• If a patient has managed to prove all the 4 things = awarded damages (compensation)
• Aim - to put the claimant in the same position they would have been if there had been no negligence - often pays for medical care.
• Losing party pays the winner’s legal costs
• General damages - pain, suffering, & loss of amenity - based on JSB guidelines & case law
• Special damages - quantifiable losses e.g. cost of care, loss of earnings…