Professional negligence Flashcards
who developed the code of ethics and guidelines for professional conduct and who uses it and for what
- developed by the college of optometrists
- used by the GOC as a standard of fitness to practice
what is the law of civil wrong/negligence
law of tort
what is the law of tort
what does it usually provide
what is it most important from an optometrist’s point of view
- the law of civil wrongs
- provides people with the rights to compensation when another person harms their legally protected interests
- from an Optometrist point of view negligence is most important law (as most common cases against optometrists is negligence)
what 3 points must exist for the plaintiff to prove negligence of against an optometrist
- Duty of care is owed personally by the defendant to the plaintiff (as soon as an optom accepts to do a s/t on a px, they have a duty of care to that px)
- The duty of care has been broken
- Harm has been suffered as a result of the breach of duty
All these points must exist
If only one of them is there e.g. duty of care is owed, but you can’t prove that duty of care has been broken, or that harm has been suffered as a result of the breach of duty of care, then the plaintiff can’t prove that somebody has been negligent
what is a duty of care and explain how it is for an optometrist
A legal obligation imposed on an individual requiring that they adhere to a reasonable standard of care while performing any acts that could harm others
optometrists owe a duty of care to the patient, when the patient comes for an eye test then we must make sure all tests have been carried out to identify if something is wrong with the patient’s eye or not
what is a Contractual Duty of care
NHS sight tests
When we have our NHS number, we must meet all duties of care required as we agree to do certain things
give an example of the common law duty of care
if you hit someone sitting next to you, it is not appropriate, as we owe a duty of care. so it exists in day to day activities, so don’t have to be an optometrist to do this
what is the neighbour principle
Donoghue v Stevenson
It was the 1st time it was established that people have a duty of care to their neighbours
e.g. if a manufacturer sells you something and its defective and something happens to you because its defective, then they have a duty of care towards you, as they’re selling that product to you. so can bring negligence against manufacturers.
The court will look at different things before deciding whether somebody is negligent or not
what are the 3 types of duty of care
- Contractual Duty of care - NHS sight tests
- Common law Duty of Care
- Neighbour principle
how is a breach of duty determined and what are the 5 factors normally examined (explaining each one)
Test is whether a reasonable person would have acted in the same way in the same circumstances
Factors normally examined:
- Foreseeability: can you actually see a risk and if that risk can cause a problem
- Magnitude of the risk: all aware there is a risk but can be so small that the average person won’t do anything about it, can look at prevalence of people with these problems
- The practicality of taking precautions: might not be practical to take precaution e.g. cataract surgery always has possible risks that have not told px about every potential risk, so either the px doesn’t do the cataract surgery at all or do it knowing there are risks
- Reasonableness: reasonable person = someone who’s a impartial observer who makes logical decisions/uses common sense to make decisions e.g. for an optom it would be another optom as they understand their job better and they use the bolam test
- Bolam Test: e.g. GOC won’t compare optom to a lay person, but will compare then to another optometrist and average one in that area
- Court will normally use guidelines issued by College of Optometrists
- Lack of Experience not taken into account - duty tailored to the ‘act’ not the ‘actor’
when you work as a pre reg optometrist and a negligence case is brought upon you, how will you be judged and why
you will be judged against the average optometrist, and not a average pre reg optometrist as you are doing the eye test and you have been taught everything to do safe practice
how is harm related to breach of duty and explain this in the case of a retinal detachment
Breach of duty may not be the sole contributory factor to the harm resulting but must have materially contributed
i. e. It is possible to breach duty of care and no harm come out of it
e. g. of RD, 2 scenarios
1) px can be a high myope, va of 6/36 and history of previous detachment, you so go the optometrist complaining of vision problems and optometrist misses the retinal detachment. your not convinced by what the optom says so you go to the hospital and they pick it up. After surgery, your vision comes back to 6/36 or even better and no more distortion, so no harm has been done, so even though the optom is negligent, they won’t actually be found negligent
BUT IF
2) px has 6/6 va and optom doesnt spot the RD, px goes to the hospital and gets picked up, they do the surgery and your vision is now 6/9 and pretty distorted, it would have been better if they were sent earlier, so px can prove that harm was done.
so sometimes things aren’t done properly, but harm may not be done
explain a case which related to breach of duty and harm
Barnett v Chelsea & Kensington Hospital
Px had arsenic in tea, they went to hospital who dismissed them, he later died but hospital were not negligent because they would’ve died anyways in hospital too as nothing they could do
how is a burden of proof decided
where are these cases heard
and what is it heard on
- Plaintiff must usually show that the defendant was negligent
- Cases heard in Civil Courts
- Balance of Probabilities
what is the damages claimed by a plaintiff based on and give 6 things this can affect in relation to this
Financial measure of the harm suffered
Usually based on:
- Compensation for pain and suffering resulting from harm (on gaining financial compensation)
- Affect on enjoyment of life
- Future loss of earnings (it depends on px’s career if its affected)
- Loss of earning capacity and prospects
- Loss of benefits such as pension
- Future expenses including medical care
Based on all of this, the px will be rewarded damage
