Medical Negligence Flashcards
Who governs medical negligence in the UK?
The GMC, regulated by the professional standards authority through the medical register
The GMC ensures that doctors are fir to practice through ethical and professional guidance in the form of the “Good Medical Practice”
What is meant by Quintuple Jeopardy?
What could happen as a result of a complaint:
1) Local complaint
2) Disciplinary action by employer
3) Civil claim
4) GMC
5) Criminal Prosecution
What could lead to a local complaint? How would you resolve this?
Reasons:
- Errors
- Grief
- Poor understanding/explanation
- Unrealistic expectations
- Failure to appreciate needs/wishes
Patient has a right to complain and as a doctor you have a legal and professional responsibility to reply. This should be done constructively and honestly. An apology should be offered if just.
What could lead to disciplinary action by an employer?
- Breaking terms and conditions of service
- Appraisal
- Bad job planning
- Bad time keeping
- Unexplained absence
Why may US physicians be subject to higher rates of civil claims and higher settlement fees?
Some differences that might explain why include:
- No well developed free socialised health care system (i.e. NHS) therefore damages necessary to cover subsequent medical expenses
- Jury involved – someone to blame
- Contingency Fee system for lawyers
- Public Expectation
- UK NHS Complaints Procedures permit interaction and explanation for patients without need to sue
How often are civil claims due to adverse events?
4% of the time
How often are civil claims due to negligence?
1% of the time
Turn over
- If you are negligent it is unlikely you will be sued
- If you are sued, it is unlikely you have been negligent
What is the most common reason for a civil claim?
Poor communication (70-80%) between patient and doctor
More than 50% of patients who sued claimed they had wanted to sue prior to the alleged event occurring due to this.
The GMC and a complaint?
Anyone can make a complaint
At the GMC the complaint is considered by case workers
May be passed onto Case Examiners - investigate if your “honesty and probity” are in question
Cases heard by the Medical Practitioners Tribunal Service (MPTS)
Various sanctions can be imposed
All parties have a right of appeal
What can investigation into misconduct include by the GMC?
- Incident can have occurred at any point of time and at any place
- Can be unrelated t medicine
Can include:
- Manner and attitude
- Dishonesty
- Sexual impropriety
- Criminal convictions
- Health issues – drink driving/abuse of drugs/mental health
- Significant Performance issues
Types of criminal allegations made against doctors?
Types of criminal allegations made against doctors:
- Indecent assault
- Prescription fraud
- Manslaughter
- Murder
- Deception offences
What is civil law?
Civil law is concerned with the rights and property of individual people or organisations, which may not always be protected by criminal laws.
Civil law settles disputes between individuals and organisations, and it often involves compensation being awarded.
No one is sent to prison in a civil case, but they may be left out of pocket if they’re found liable for compensation.
What are examples of civil law cases?
Family disputes, such as divorce, dissolution of civil partnerships, children’s issues and childcare arrangements
Personal injury cases, such as road traffic accidents, medical and clinical negligence and slips, trips and falls
Breach of contract or promise, such as cases where money is unpaid or a contract isn’t honoured
Employment law, for example where an employee suffers discrimination
What is criminal law?
Criminal law essentially relates to offences and breaches that negatively affect society as a whole, rather than just one person
If a person breaches criminal law, they’re subject to criminal prosecution by the state.
Criminal proceedings will usually be brought by the Crown Prosecution Service (CPS) in the name of the Crown, and will be heard in a Magistrates’ Court or the Crown Court
What are examples of criminal law breaches?
Burglary, theft, arson and criminal damage
Assault, sexual assault and battery
Murder
Fraud, money laundering and drug dealing
How can medical negligence be defined?
Medical Negligence can be defined as “ a lack of reasonable care and skill as a result of which the patient suffers”
What is the value of the money awarded within a medical negligence civil law case based upon?
The monetary award will reflect the financial loss (occasioned by inconvenience or injury) suffered by the patient and not the degree of negligence exhibited, the reason for the lapse being immaterial
Examples of losses leading to compensation in medical negligence
- Loss of earnings
- Expenses incurred
- Impaired enjoyment of life
- Permanent incapacity
- Procreative incapacity
- Pain and suffering endured
- Death
Component of medical negligence definition
1) A legal duty to provide care and skill i.e. a professional relationship, which in legal terms is a contract (Can be implied contract)
2) Reasonable Care and Skill. The concept of “Accepted Medical Practice”
In other words, a mistake made by the practitioner must be an error which no competent doctor in that field would have made.
3) Actual Damage must have occurred as a direct result of the lapse i.e. Causation
To prove causation the pursuer must show that, on the balance of probabilities, the alleged negligence caused the damage.
Hunter v Hanley 1955 in Scotland and medical negligence
The ‘true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care’.
In other words, a mistake made by the practitioner must be an error which no competent doctor in that field would have made.
Bolam v Friern Hospital Management Committee 1957 in England and medical negligence
That a doctor who had acted in accordance with a practice accepted at the time as proper by a ‘responsible body of medical opinion’ skilled in the particular form of treatment in question was not guilty of negligence merely because there was a body of competent professional opinion which might adopt a different technique.
Procedures upon complaint of negligence
Aggrieved patient states his complaint to his solicitor, who, if he believes the allegations to have substance, represents the complaint to the doctor (and co-defenders) in writing, demanding financial reward for damages
The doctor immediately puts the affair in the hands of their legal representatives (Defence Organisation, Health Authority etc)
Thereafter lines of action include:
No case to answer
“Res ipsa loquitur”; negligence is self evident
Neither of the above; legal debate; Court
Lines of defence in a medical negligence claim
Lines of Defence:
- Deny the charge
- True facts but not the pursued doctor’s fault, or vicarious liability. Vicarious liability - where a person can be heldliablefor the actions of another person (e.g. Health Board can be held responsible for the actions of the doctor
- Patient took a risk – consented procedure
- Contributory Negligence
claimant’s own negligence contributed to their loss or damage
Strategies to avoid the risk of complaints of negligence
Join a medical defence organisation (MDDUS, MDU, MPS)
Seek advice early
Maintain good records
Delegation
Comments about colleagues
Courtesy and hostility
Report early to Defence Organisation
