Negligence Flashcards
What is negligence?
Legal: breach of a duty of care which results in damage
What does tort mean?
Tort refers to common law which is a civil wrong rather than a criminal wrong. But some extreme negligence could result in criminal prosecution for battery or man slaughter. Recognised by law as grounds for a lawsuit. Unlike obligations created through a contract, the duties imposed under tort law are mandatory for all citizens in that jurisdiction
Claims for clinical negligence
- most claims are brought in tort
- NHS patients have no contract with NHS hospitals or trusts so the patient sues the dentist in the tort of negligence
- private patients have a contract with their dentist or clinic so can sue in contract or in tort. But latter is more common.
Elements of the tort of negligence
The defendant (dentist) must owe the claimant (patient) a duty of care
The dentist must be in a breach of that duty
This breach must cause the patient harm
What is a dentists duty of care
Activated automatically by the patient-dentist relationship
Practitioner owes a duty to patients on his list and anyone who is not a usual patient but is seen as an urgent/emergency patient
Entire practice staff owe a duty of care to patients attending for treatment
Dentists duty of care = reasonable care and skills - in diagnosis, treatment and advice
What is the bolam test?
The test is the standard of the ordinary skilled (practitioner) exercising and professing to have that special skill. A practitioner need not possess the highest expert skill… it is sufficient if they exercise ordinary skill of an ordinary competent practitioner exercising that art.
Time of incident
A dentist will be judged on the state of knowledge at the time of the incident. Standard of care will be assessed at the time of when the alleged negligence occurred. Important for dentists to keep up to date and incorporate new developments into their practice.
Standard of care
- dentist is negligent if they fail to refer a patient with unusual symptoms or a procedure out of their scope of practice
- negligent if they attempt a procedure that should only be attempted by a specialist.
Modified bolam test into the bolitho test
Court can review common practice to ensure it is reasonable and responsible. Bolitho - the practice of the profession must be judged logical by the courts
What does being the CAUSE of negligence mean?
The claimant must prove that the defendants acts or omissions were RESPONSIBLE for their loss
Limitation period of negligence
If the case involves personal injury then the action must be commenced within 3 years of the date of negligence or the date on which the patient realised there was a case. For children the limitation period doesn’t begin until they become competent at 18. No time limit applies for adults without capacity.
Criminal liability of negligence
Negligence in healthcare is normal civil. If death is caused by gross misconduct a conviction for manslaughter is possible. Criminal liability to be established.
Should you tell the patient if a process has gone wrong?
It is good practice to explain when care or treatment has gone wrong. The nature of the mistake should be disclosed and the practitioner should apologise for the mistake. It is not an admission of liability (compensation act)
