Medical Negligence Part 1 and 2 Flashcards
what is the General Medical Council?
The GMC is the professions regulator
who is the GMC regulated by?
It is regulated by the Professional Standards Authority
what is the role og the GMC?
The GMC’s statutory responsibility is to produce the Medical Register – its membership
The GMC is responsible for overseeing and certifying the appropriateness of medical education
It is responsible for ensuring that doctors are fit to practice – by publishing its ethical and professional guidance – Good Medical Practice
What does the GMC guidance include?
- Ethics
- Professionalism
- Professional Governance
- The Law as it affects and governs medical practice
- Confidentiality
- Consent
- Negligence
- Record Keeping
- Risk management, audit, peer review
- Clinical governance
- Referral of patients
- Dealing with criticism and complaints
- Working with colleagues, team working
- The duty to report
- The duty of candour
- Continued professional development
- Self appraisal and staying healthy
what are the simplified aims/guidance of the GMC?
Putting patients first
Being honest
Having the knowledge to practise medicine legally
Knowing one’s limitations
Being knowledgeable and keeping up to date
Treating people with dignity
Treating people consistently
Being able to admit you are wrong
What Relevance Does Legislation have to Working as a Doctor?
- Working legally and lawfully
- Duty of care to the patient
- Working with proper skill and attention
- Risk versus benefit analysis
- Working in a patient’s best interests
- Working within one’s own capabilities
- Achieving expected outcomes
when a complaint is made:
what is the first kind
a local complaint
when a complaint is made:
what comes after a local complaint?
disciplinary action - employer
when a complaint is made:
what comes after disciplinary action - employer?
civil claim
when a complaint is made:
what comes after a civil claim?
medical council
when a complaint is made:
what comes after the medical concil?
criminal prosecution
local complaints are made by who?
Patients have a right to complain
what may a patient complain about?
- Error
- Grief
- Poor understanding/poor explanation
- Unrealistic expectations
- Failure to appreciate needs/wishes of patient
Do doctors reply to the complaint?
You have legal and professional responsibilities to reply
The first response back to an angry patient is the crucial one
what doe sthe GMC say in regard to local complaint?
The GMC states:
“… you have a professional responsibility to deal with complaints constructively and honestly. You should co-operate with any complaints procedure which applies to your work. You must not allow a patient’s complaint to prejudice the care or treatment you provide or arrange for that patient …
When appropriate you should offer an apology.”
What are some Disciplinary Procedures of Employers?
(If breach terms and conditions then you may get disciplinary action)
- Terms and conditions of service
- Appraisal
- Job planning
- Time keeping
- Absence
Civil claim:
Litigation is still more common in USA than UK and settlements are hugely greater in USA
Some differences that might explain why include what?
- 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 pateints without need to sue
who can make a complaint to the GMC?
anyone
who deals with the complaint at the GMC?
- 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
Who has the right to appeal to the GMC?
• All parties have a right of appeal
can someone make a complaint straight to the GMC or does it have to be a local complaint first?
can be straight to the GMC
Investigations into misconduct may be what?
- Can be unrelated to medicine
- Incidents can have occurred at any time …
- … and at any place
GMC cases include what?
- Manner and attitude
- Dishonesty
- Sexual impropriety
- Criminal convictions
- Health issues - drink driving/abuse of drugs/mental health
- Significant Performance issues
Criminal Prosecution:
What are some 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
Civil law cases often hinge on establishing whether or not the accused person or organisation, legally known as the defendant, had a duty of care towards the claimant
whata re some 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
examples of offences that breach criminal law, while not an exhaustive list, include what
- Burglary, theft, arson and criminal damage
- Assault, sexual assault and battery
- Murder
- Fraud, money laundering and drug dealing
what is the deifnition of Medical Negligence?
Medical Negligence can be defined as “a lack of reasonable care and skill as a result of which the patient suffers”
Every citizen has a right to certain standards of service, and if negligence in delivery of that service can be demonstrated, the individual may sue in the civil Courts for compensation, and if successful will be awarded damages (money)
In Britain, the courts do not grant punitive damages (i.e. money fined by way of punishment) - Money does not reflect punishment but instead reflects the damage that have occurred
Doctors, like all Human Beings, are fallible, and if the patient suffers at the hands of a careless (or incompetent) doctor, the patient may sue
in Medical Negligence what does the monetary award reflect?
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
The settlement may take place “out of court”, or an action may proceed through the Civil Courts before a judge (in Scotland, the court of Session)
To fulfil the definition, in legal terms, the following must be demonstrated:
- A legal duty to provide care and skill i.e. a professional relationship, which in legal terms is a contract
- Express contract - stating clearly the procedure and the risks of treatment and non-treatment, risks involved
- Implied contract - prescribe medication and the patients take them, taking blood, smaller procedures
- Reasonable Care and Skill - The concept of “Accepted Medical Practice”
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
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
- 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
Pursuers must of course be able to prove that they have suffered a loss of some form, i.e. that ‘but for’ the negligence of the medical professional involved, the eventual outcome would have been better in some way. It is not sufficient to raise a claim due to negligence alone, if the outcome would have been the same in any event (e.g. the administration of the wrong dose of a drug which fortunately has no ill effects)
What are examples of losses leading to compensation?
- Loss of earnings
- Expenses incurred
- Impaired enjoyment of life
- Permanent incapacity
- Procreative incapacity
- Pain and suffering endured
- Death
What is the 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
In Medical Negligence what are the different 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 held liable for 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
What is Gross negligence manslaughter?
Accused breached duty of care with foreseeable serious risk of death ensuing and actions or contributions caused or significantly contributed to death of the victim
Involuntary manslaughter - causes death but without intent to kill à This charge does not exist in Scotland – ? Involuntary culpable homicide – homicide in the course of lawful conduct
Element of mens rea – recklessness – but cannot be deemed reckless based on the outcome
In carrying out lawful action, such as medical treatment, a person acts below the standard required by society and their failure to that standard causes death – highlights the social context to the operation of Law – what does society expect by way of conduct of doctors?
When MPTS make a decision can GMC appeal it
When MPTS make a decision that GMC cant appeal it
What are some strategies for avoiding/minimalizing 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
