Medical negligence & malpractice and Distributive Justice Flashcards
Who are the beneficiaries of medical negligence and professional liability claims?
- Insurance companies (increase in GDP)
- Lawyers (increase in GDP)
- Journalists/media (increase in GDP)
- Biomedical industry (via defensive medicine related
orders; increase in GDP) - Patients (compensation)
Who are the “losers” of medical negligence and professional liability claims?
- Doctors (stress, demoralisation, loss of trust
in patients, de-professionalisation) - Patients (loss of caring doctors, defensive
medicine) - The tax payer (cost of defensive medicine)
What is the consequence of this in terms of the social climate?
A social climate advocating the allocation of blame
and seeking compensation
What is the alternative to allocation of blame?
Who endorses this? Why did the government reject it?
Awards to injured patients irrespective of requirement of proving fault on the part of medical staff.
Endorsed (with changes) by BMA and RCP.
Rejected by the government - more costly, loss of deterrent value of the law of tort and increased failure of care.
What is meant by ‘law of tort’?
Tort, in common law jurisdictions, is a civil wrong that causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act.
In the NHS, a claim for medical injury is brought in..? How does this differ in the private sector?
TORT - i.e. based on non-contractual civil wrong
In the private sector – based on damages in contract.
Whom should the patient sue?
If GP – direct claim. GPs are solely responsible for
their treatment.
If hospital doctor – claim against health authority, but
also doctor. All is paid by NHS.
Define negligence.
- The defendant had a duty of care to the
claimant. - There was a breach of that duty.
- The claimant suffered actionable harm or
damage. - The damage was caused by the breach.
What is a breach of duty of care?
Failure to reach the level of proficiency of peers.
N.B
Ignorance is no defence - i.e. juniors should seek seniors advice
Genuine errors of clinical judgement are not negligence if based on reasonable skill.
What are the two aspects of breach of duty of care?
The breach can be
1. done (commission), eg forceps left in the
abdomen.
2. Not done (ommission), eg failure to attend a
patient or diagnose a condition.
What other types of negligence are there? (3)
Improper use of innovative techniques
Misdiagnosis
Negligence in treatment: different from
excusable mistake.
What is meant by res ipsa loquitor?
Normally, the onus of proof of negligence rests with
the claimant, unless the mistake is self-evident (ril).
eg, removal of wrong limb, operating the wrong
patient, giving the wrong drug, not removing all
forceps/swabs. All such cases are settled out of court, since they are virtually indefensible.
What is meant by quantifiable harm?
Loss of earnings, reduced quality/quantity of life, disfigurement, disability, mental anguish.
What is meant by contributory negligence?
Claimant has contributed to their harm suffered - will not affect judgement but can reduce damages
According to 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.
What is meant by criminal negligence?
When negligence goes beyond compensation to such disregard for life and safety as to amount to a crime.
What is the legal process of claiming?
- Letter of claim (info, request for notes, value of claim, offer to settle). Must be acknowledged within 14d + copies of requested notes within 40d.
- Letter of response with 3m (comments, documentation to be used, offer to settle).
- Claim form by a civil court.
- Denial by defendant.
- Proofing.
- 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.
What are the four basic bioethical principles?
autonomy, justice, beneficence, and non-maleficence
What is justice?
“Each getting what he or she is due (fairness)”.
What is formal justice?
Impartial and consistent application of principles, whether or not the principles themselves are just.
What is substantive justice?
What individuals can legitimately demand of one another or of their government (“positive rights”).
What is retributive justice?
When and why punishment is justified.
What is corrective justice?
Fairness of demands for civil damages.
What is commutative justice?
Fairness of wages, prices, and exchange.
What is distributive justice?
Fairness of distribution of resources. Distributive justice determines all other forms of justice.
What are the underlying assumptions in distributive justice?
- Resources are always limited and finite.
Scarcity results because demand exceeds
supply (tautology?). - Current crisis is an unfortunate, however
natural, i.e. inevitable, phenomenon. - Rationing is therefore inevitable.
- It should be based on principles of justice.
Why is there increasing demand?
- Increase in population.
- Rising life expectancy.
- Increase in unhealthy life expectancy.
- Greater public awareness of rights and possibilities.
- Increase in supplier-induced demand.
- Low costs at point of delivery result in infinite
demand
Why is there decreasing supply?
- Medical technology is more expensive than ever.
- Other national needs, not only health care.
- Increase in defensive medicine (up to 30%?) and
other forms of inefficiency. - Global economic crisis, and the need to contain
government’s expenditure. - Decreased social solidarity (e.g. less organs for
transplantation)
What is the evidence of scarcity in the NHS?
- HC budget 6% of GNP
- Expenditure per capita less than most other
industrial countries. - UK behind in provision of hospital beds per 1000
pop. - Shortage of doctors and nurses, long waiting lists.
- Some drugs and services are not available.
- Under-funding for specific groups.
What are the two types of rationing?
Explicit (i.e. denied drug/surgery) and implicit (long waiting lists, poor service, bureaucratic obstacles, futility arguments, public unclear about entitlements, GPs as gatekeepers)
What does NHS Act (1977) sec 3 state about the government’s obligation to provide health care?
The government has a legal obligation to make adequate provision for health care “to such extent as [the Secretary of State] considers necessary].
Apply utilitarianism to rationing.
Utilitarianism: allocation based on need or
expected outcomes.
1. Greatest happiness for greatest number.
Pity the minority.
2. Greatest happiness for the more
powerful. Pity the weak.
Apply rights-based approach to rationing.
- Egalitarian approach (people have equal
rights): an equal share for everyone. Pity the
rich. - Property rights outweigh health care rights
(pity the ill, poor, and aged).
What are the formal solutions for macro-allocation of services?
- Nozick – complete privatisation – free competition.
- Rawls – veil of ignorance – managed competition.
- Ask the public (Oregon, NZ).
What are the formal solutions for micro-allocation of services?
Allocation according to: 1. social merit, age, and sex. 2. outcomes (prognosis, productivity) [QALY, DALY, the fair innings approach]. 3. responsible/irresponsible behaviour of patients. 4. individual’s needs. 5. lottery of some kind. 6. Ability to pay
Why not just have private health care? - utilitarianism approach
Pro: Most patients and doctors would benefit.
Con: Most patients and doctors would be harmed.
Why not just have private health care? - rights-based approach
Pro: property rights (negative rights) outweigh rights to HC (positive rights)
Con: Rights to HC outweigh property rights
Loyalty to the prevailing interests of society comes before loyalty to patients - true or false?
TRUE
