Medical Malpractice Flashcards
Intro: Breach of Contract - SOGA 1982: s4, 9 and 13 - Eyre - Maurice
Applies for Private healthcare services
terms are implied by law under SOGA 1982
- S4 and 9: all med device must be satisfactory quality and fit for purpose
- s13: med organisation must carry out service with reasonable care and skill
eyre: - no warrantee - no implied terms
Maurice: med science isn’t exact - Docs can’t guarantee success of OP unless they say so in clear and unequivocal terms
Clinical Negligence:
Duty of Care: general Rules - where D/P Relationship begins Barnett Darnely Kent Allin
use any Med law case for DOC - owe patient in advice, treatment and diagnosis
Barnett: DOC begin once in A&E
Darnley: once on the system and booked in - medical or non medical staff.
kent: once 999 call has been answered
alin: all med staff owe P a DOC - med staff told P her baby was dead but it wasn’t
Duty of Care: general Rules - other people who owe DOC Health Care Authority: - Wilsher - Bull - Garcia
- Gold v Essex
Wilsher:
- HA have duty to provide skilled doctors for treatments required
- its a minimum standard of care they owe
Bull:
- waiting 1 hour to be seen in a labour specialist clinic fell below the minimum standard - they specialised in premature births
Garcia:
- no duty for HA to provide for rare event/one off occurrences
- P had dislodged clip in heart due to injury = rare event
Gold: Vicarious liability for hospitals for actions of employees
Duty of Care: general Rules
DOC to non-paitents: 3 parties
- JD v East Berkshire
- West Bromich
no duty to third party for negligent doctor
- JD: no duty to parent for incorrect diagnosis
- West brom: No duty owed to football company for the injury caused by Drs negligence
Duty of Care: general Rules
DOC to patients: 3 parties Exceptions
- Failure to disclose/diagnose
- palmer
- Harvey - Rescuers:
- Patel
Failure to disclose: where lack of disclosure has led to the harm/injury of 3rd party
- palmer: where 3rd party is not identifiable = no liability
- Harvey: where Wife gets HIV from husband who is Ds patient = duty as she was an identifiable victim.
DOC for rescuers
- Patel: R donated kidney- removed neg from V = R claimed for loss = claim succeeded.
Duty of Care: general Rules
DOC to non-paitents: 3 parties exceptions
3: disclosure = financial harm
Baker
- Feotus
- S.1 of Congenital Disabilities - Psychiatric harm:
- Alcock
Baker: there is a DOC for prospective financial loss
but
Kapfunde: no DOC - too much pressure o n Docs = conflict of interest
S.1: DOC owed to mother is derivative to the foetus = where child comes out disable.
Alock: can claim as a secondary victim of psychiatric harm.
- but the nature of the hospital environment - traumatic events happen all the time so this makes it unlikely.
BREACH OF DUTY
- Bolam test
- Bolitho gloss
- Marriott
where Dr act in same way as ‘ordinary skilled man in the profess and in accordance to practices accepted by a responsible body of med skilled men = no negligence
Bolitho
- courts have to be satisfied with the med body’s opinion.
- rare case where they find the opinion illogical then they can say its unreasonable.
Marriot:
- Risks may be small but if the consequence maybe grave the courts decided the medical opinion on patients refusal to be referred was illogical
BREACH OF DUTY - REFINEMENTS
- Common Practice:
- Maynard
- Sidaway
- Defreitas
- Zarb - Keeping up to date:
- Bolam
- Crawford
- Newbury
Maynard: maybe more than one mode of practice - following one over the other doesn’t make it negligent
Sidaway: Lord Scarman, no neglience if he acted in was that is accepted at the time - even though other med profs would do it a different way
Defretias: its not a numbers game on how many medical experts agree - you just need 1
Zarb: departure from common practice may not be negligent - departure has to be logical as medicine is always evolving.
up to date:
- Bolam: doctors have to keep up to date with practices
- Crawford: Doc not reading med article published 6months ago not negligent
- Newbury: new methods doesn’t make the old ones negligent until shown their wrong.
BREACH OF DUTY - REFINEMENTS
- Experimental Techniques:
- Wilsher - Error of Judgement:
- Whitehouse
Wilsher: can take experimental steps but has to be justifiable and have informed consent.
Whitehouse: not a problem to negligence, but some errors maybe glaringly below the proper standard = negligent.
BREACH OF DUTY - REFINEMENTS
- unforeseeable harm
- Roe
6: Emergencies
- Wilsher
- Bull v Devon
- Specialist
- Maynard - Inexperience
- Jones
Roe: if foreseeable at time of neg = liable but if not and it later becomes foreseeable because of new tech D can’t be judge by that standard.
Wilsher: low standard of care in emergency situations due to stress of the job
- Bull - but where its a predictable emergency = not lowered - fact specific
Maynard: specialist are held to a higher standard
Jones: inexperience is irrelevant held to the same standard as an experienced doctor.
BREACH OF DUTY - REFINEMENTS
9: Other health care professional
- Taaffe
10: proof of breach:
Cassidy
Taaffe: standard is adjusted to you’re profession: paramedic who in their care - below the paramed guidelines = still negligent
Cassidy: it’s on D to prove he’s actions are not negligent.
CAUSATION: But For Test
- Barnett
But for the D’s negligence, the injury would not have occurred: doesn’t apply in situations that death would occur either way.
CAUSATION: But For Test
- Hypothetical conduct of C (omission to act)
- Mcwilliams
Hypothectical conduct of D
- Bolitho
- GouldSmith
C has to prove that he would have acted in a way that would prevent the damage
Mcwilliams: where it was proven that C would not have worn an harnice if provided for him - D was not negligent
Bolitho: facts
- failed to attend to C (a baby) who suffered brain damage - C claimed that if that was done them the BD wouldn’t have occurred
- specific procedure - entering a tube in chest was only thing that could stop the BD - D said if she came she wouldn’t have done it anyways
- held: can’t escape liability with a hypothetical breach of duty
Gouldsmith:
- look at hypothetical conduct if its a breach - apply bolam its med body would act this way then no causation as they couldn’t have avoided it
- but if it could be avoided then but for test applies - but for not referring the patient to special the injury wouldn’t have occurred.
CAUSATION: But For Test
- Scientific uncertainty(material contribution to cumulative conditions)
- MC to Damage
Bonnington
Bailey
- MC to Risk
McGhee
Wilsher
FairChild
MC to damage:
Bonnington: 2 factors to C’s damage - dust below the legal standard and dust above = just have to show that the neg materially contributed to the damage.
Bailey: if damage was due to natural causes then no causation but if both natural and tortious act caused the damage then causation is proven
MC to Risk:
McGhee: no washing facilites = toxic dust and normal dust to settle into skin = increased the risk of the condition,
both dust can trigger a condition so you just have to prove contribution to risk
Wilsher: McGhee didn’t apply: D’s neg exposed prem baby to too much oxygen = RLF but there are 4 other ‘innocent things’ that contribute to it also so no causation
Fairchild: approved wilsher - where there is mixed - innocent and toxic = no causation but where One noxious agent is present then you apportion damages relating to the increased level of risk in barker
CAUSATION: But For Test
3 Loss of chance
- Hotson
- Gregg v Scott
Hotson: whose chances of paralysis was 75% anyways regardless of breach, breach turned it to a 100% = claimed failed only lost 25% chance
Gregg: chance to living for 10 years was 45% dropped o 25% due to delayed diagnosis = original chance was below 50% so claim failed - was going to die anyways.
- Baroness Hale = C is entitled to damages that reflect his suffering though
