Medical negligence and professional liability

Question 1

What is no fault compensation

Answer 1

awards injured patients irrespective of requirement of proving fault on the part of medical staff

Question 2

how is a liability brought on in the NHS

Answer 2

a claim for medical injury is brought on tort - based on non contractual civil wrong

Question 3

How is liability brought on in the private sector

Answer 3

it is brought on my damages in the contract

Question 4

Who should the patient sue

Answer 4

• If GP - direct claim - GPs are solely responsible for their treatment
• if hospital doctors - claims against the health authority but also doctor
• doctors should retain cover for any private or good Samaritan work

Question 5

What are the 4 conditions for negligence to occur

Answer 5

1. the defendant had a duty of care to the claimant
2. there was a breach of that duty
3. The claimant suffered actionable harm or damage
4. the damage was caused by the breach

Question 6

Who owns duty of care

Answer 6

1. The health authority, the hospital, the senior doctor, and the GP (vicarious liability).
2. The actual doctor/nurse (direct liability).
3. ‘Good Samaritans’ (in the UK – an ethical duty, not legal).
4. A person cannot sue a doctor for negligence if as a result of his report the person is denied insurance. The duty of the doctor is to the insurance company, not the person.

Question 7

what is breach of duty of care

Answer 7

• failure to reach the level of proficiency of peers

Question 8

What is the Bolitho modification

Answer 8

Defence against negligence based on a practice which is not reasonable or logical is unacceptable, regardless of the Bolam test

Question 9

The breach can be

Answer 9

1. done (commission), e.g forceps left in the abdomen.

2. Not done (omission), e.g failure to attend a patient or diagnose a condition.

Question 10

What are other types of negligence

Answer 10

• Improper use of innovative techniques.
• Misdiagnosis: failure to take history properly, failure to conduct tests properly, failure to diagnose what the reasonable doctor would.
  
  • telephone/video diagnosis is hazardous.

Question 11

What is Res Ipsa Loquitur

Answer 11

Normally, the onus of proof of negligence rests with the claimant, unless the mistake is self-evident.

E.g, removal of wrong limb, operating the wrong patient, giving the wrong drug, not removing all forceps/swabs.

Question 12

What is actionable harm or damage

Answer 12

Disability, loss or injury. Not to confuse with damages, i.e. the financial compensation.

Quantifiable harm: loss of earnings, reduced quality/quantity of life, disfigurement, disability, mental anguish.

Contributory negligence will not affect the judgment, but can reduce damages.

Under the Social Security Administration Act 1992: an amount equal to the benefits will be subtracted from the compensation payment.

Question 13

What is causation

Answer 13

The proof of causation will rest on ‘balance of probabilities’, as opposed to ‘beyond reasonable doubt’.
The Limitation Act 1980: acts of negligence must be sued within 3y of the date of knowledge. For a child, this starts at 18. For a mentally ill patient – from time of recovery. [in one cases, damages of 1.25m given after 33y].

Question 14

Describe the legal process

Answer 14

1. Letter of claim (info, request for notes, value of claim, offer to settle). Must be acknowledged within 14d + copies of requested notes within 40d.
2. Letter of response with 3m (comments, documentation to be used, offer to settle).
3. Claim form by a civil court.
4. Denial by defendant.
5. Proofing.
6. Assessment of quantum. A settlement may be reached by a Trust, leaving doctors to feel that justice was not done.
7. 5% go to court. Decision based on expert opinion.