W2: medical negligence claim

Question 1

What is the main basis for a medical negligence claim?

Answer 1

When a health care professional breaches their duty of care to the claimant.
Often in the form of:
Adverse clinical outcomes from a procedure or treatment.

Question 2

What type of problems might a claimant use in a medical negligence claim?

Answer 2

Unexpected personal injury or clinical condition
Worsening of clinical condition
Increased length of hospital stay
Subsequent unplanned reamission to hospital.
Transfer to the ICU
Death

Question 3

Why is the idea of ‘reasonable’ important in medical negligence claims?

Answer 3

In order for a claim to be considered the care must be considered below reasonable, this means a case will not be considered if the practitioners behaviour matches clinically accepted behaviour or if the outcome of their actions could not have been forseen.

Question 4

What is part of a practitioners legal duty of care?

Answer 4

Proper clinical assessment
Working within the limits of your competency
Updating professional knowledge and skills
Appropriate administration of treatment and drugs
Clear, accurate and legible clinical records
Clinically accessible whilst on duty
Consulting with fellow health care professionals
Appropriate referrals of patients for second opinions.

Question 5

What is the responsibility hierarchy is a patient claim is made?

Answer 5

A trust is responsible for all individuals within their trust, if they are acting under trust guidelines.
A senior staff member is responsible if you are acting under their instructions.

Question 6

What is part of an NHS trusts legal duty of care?

Answer 6

Providing staff with appropriate skill and knowledge.
Providing training, instruction and supervision.
Suitable and working equipment
Safe working conditions
Conditions for storing clinical records.

Question 7

Who takes responsibility in a negligence claim in a private clinic or private hospital?

Answer 7

Private hospital - hospital takes responsibility
Private clinic - individual practitioner takes responsibility.

Question 8

What are the two stages of a complaint procedure?

Answer 8

Internal investigation by the appropriate trust
Independent investigation from outside the trust ( Ombudsman)

Question 9

What is the NHS trust responsibility and power when handling a patient complaint?

Answer 9

Manage complaints in a timely and efficient manner. - ASAP
Duty of candour, apologise, explain, resolve
Must inform the patient when the complaint is received, updates on progress, outcomes of complaint and check the outcomes are completed.
May have disciplinary procedures for the individual practitioner involved
Must provide a PALS.

Question 10

Can an individual NHS trust give a payment of compensation after a complaint?

Answer 10

no

Question 11

What is PALS?

Answer 11

A Patient Advice and Liason Service
NHS staff and volunteers, give confidential advice and assistance to complainants.

Question 12

What is ICAS?

Answer 12

Independent Complaints Advocacy Service
Independent of the NHS and it’s staff, assist in the complaints procedure.

Question 13

What is the timeline for managing a complaint?

Answer 13

A patient can only launch a complaint within 12 months of the incidence or when they were made aware of the incidence.
Have 3 working days to acknowledge a complaint
Have six months to respond to a complaint.

Question 14

What is an ombudsman?

Answer 14

Independent of the NHS and government.
Hold complaints that trust has refused or when the patient is not happy with the outcome of the complaint.
Positive outcome: trust responsible for putting the patient in the position they would have been in if the wrong had not occurred (financial or treatment)

Question 15

What actions can the ombudsman do?

Answer 15

Has no power of enforcement.
Aims to put the patient in the same position they would have been in if the wrong had not occurred.
Financial compensation
Remedial action
Apology, explanation or acknowledgement of responsibility.

Question 16

What is a clinical negligence claim?

Answer 16

When the complainant is unhappy with the decision of the NHS Complaints procedure oo/and the ombudsman.
Handled on behalf of the trust by the NHS resolution team.

Question 17

What is NHS resolution?

Answer 17

Handles medical negligence claims against NHS trusts.
Provides unlimited insurance cover for it’s members (trusts) and their employees (practitioners)

Question 18

What specialities are most likely to be sued?

Answer 18

Obstetric and gynaecology
Neurology
Plastic surgery

Question 19

What must a claimant prove in order to launch a medical negligence claim?

Answer 19

That on the balance of probabilities the practitioner owed them a duty of care that they then breached.
As a result of this they suffered reasonable foreseeable harm/injury/loss.

Question 20

What is a good definition of a practitioner’s duty of care?

Answer 20

Must take reasonable action to avoid acts or omissions which could cause reasonably foreseeable harm/injury/loss to the patient.

Question 21

What is meant by the neighbour principle?

Answer 21

Practitioners have a duty of care over anyone who their actions may closely or directly affect to the degree that they should be thought of when completing an action.

Question 22

Why is the level of professional relationship important in a medical negligence claim?

Answer 22

Must prove that the practitioner had a sufficiently close professional relationship inorder to have breached a duty of care.

Question 23

What are the implication if a medical practitioner fails to stop at an emergency when off duty?

Answer 23

Is not a breach of duty of care - as not a sufficiently close professional relationship.
Is a breach of professionalism hence a fitness to practise complaint.

Question 24

What is the difference between clinical and medical negligence?

Answer 24

Clinical = diagnosing and treating a patient
Medical = research or clinical based.

Question 25

What is the link between reckless causing of injury and HIV?

Answer 25

Knowling transmitting HIV is a criminal offence.

Question 26

Where does the duty of care sit in an expected child abuse case?

Answer 26

Owes the minor a duty of care
Does not owe the parent a duty of care, as this could interfere with the outcome of the investigation.

Question 27

What is meant by the Bolam Test?

Answer 27

Checking if behaviour of an accused practioner is considered appropriate clinical practice, meaning other practitioners would have done the same thing. This removes responsibility.

Question 28

What is the role of a professional Expert Witness in a medical negligence claim?

Answer 28

To provide evidence to show if the practitioners’ actions were or were not clinically acceptable.

Question 29

What scenarios does the Standard of Care in Informed consent cover?

Answer 29

Informing a patient of reasonable treatment options
Informing a patient of clinical risks.

Question 30

What are the two categories of a legal complaint?

Answer 30

Pure diagnosis - late or wrong diagnosis
Pure Treatment - wrong or delayed treatment.

Question 31

What must a presiding judge in a negligence claim do?

Answer 31

Review all clinical evidence, medical records and professional guidelines.
Consider the defendant in context - e.g recognise competency so not expecting a GP to act with the level of knowledge of a cardiologist etc.

Question 32

How does NICE guidelines link to medical negligence?

Answer 32

Failure to comply with NICE guidelines is considered proof of medical negligence.

Question 33

Why is causation important in a medical negligence claim?

Answer 33

Must proove that outcome was reasonably unaviodable hence the defendant caused the outcome.
If the patient would have died anyway or the outcome been the same without the fault then practitioner is not responsible for that death.

Question 34

What is meant by a New Intervening Act and why is this important in a medical negligence claim?

Answer 34

A free, co-ordinated and informed act that breaks the link of causation between the defendants actions and the problem.
This can relieve the responsibility of the defendant.
For example, a patient being informed of the consequences of smoking and advised not to, continues smoking and develops lung cancer.