Week 20: Medical Negligence Flashcards
What branches of law does medical law fall under today?
Medical law primarily falls under private law, but it can also involve criminal law (in extreme cases) and public law and policy, especially in contemporary medical issues.
How does medical law differ in Scotland and England?
While both Scotland and England handle medical law, the specific legal frameworks, cases, and statutes may vary between the two countries, though many principles are shared.
What are the key elements in building a medical negligence case?
The key elements are:
Duty of Care
Breach of Duty of Care
Causation (and remoteness)
Damages
What does ‘Duty of Care’ mean in a medical negligence case?
‘Duty of Care’ refers to the legal obligation of a healthcare provider to act in the best interest of the patient, following accepted medical standards.
What is ‘Breach of Duty of Care’ in medical negligence?
A ‘Breach of Duty of Care’ occurs when a healthcare provider fails to meet the standard of care expected in the medical profession, either through action or inaction.
What does ‘Causation’ mean in medical negligence?
‘Causation’ means proving that the breach of duty directly caused harm to the patient. ‘Remoteness’ limits this to damages that are directly linked to the breach.
What are ‘Damages’ in a medical negligence case?
‘Damages’ refer to the compensation a patient receives for harm caused by medical negligence, including physical injury, emotional distress, or financial loss.
What is required to establish a duty of care in a medical negligence case?
A duty of care must be established before a claim can proceed, usually straightforward in medicine, but can be complex in healthcare delivery. It’s based on Caparo v Dickman criteria:
Reasonable foreseeability
Proximity
Fairness and reasonableness to impose a duty.
What does the case Barnett v Chelsea and Kensington Hospital Management Committee teach us about duty of care?
In Barnett, doctors were not liable because of lack of causation. Doctors are generally not obligated to care for strangers/non-patients, except when they assume responsibility for the patient’s care, as seen in the Darnley case.
What does ‘Breach of Duty of Care’ refer to in medical negligence?
‘Breach of Duty of Care’ refers to whether the healthcare professional met the required standard of care at the time. This is measured by what a reasonable person in the same profession would do in the same circumstances.
How is the standard of care determined in medical negligence cases?
The standard of care is determined by the reasonable person in the same profession exercising ordinary skill. Exceptional skill is not required, as per R v Bateman.
What happens if a novice commits a breach of duty in healthcare?
In the case of a novice, such as in Wilsher v Essex Health Authority, the standard is still based on what a reasonably competent professional would do, though causation was disputed in the appeal.
What is the standard of care for a reasonable doctor?
The standard of care for a reasonable doctor is whether their actions fall within the scope of what a doctor of ordinary skill would do. Courts show deference to medical professionals, and differences of opinion are not necessarily negligent. (Hunter v Hanley, per Lord Clyde at 217).
How do we establish if a doctor acted negligently in diagnosis or treatment?
To establish negligence in diagnosis or treatment, three factors must be proved:
There is a usual and normal practice in the field.
The doctor did not follow this normal practice.
The doctor’s actions were such that no doctor of ordinary skill would have taken the same course if acting with ordinary care. (Hunter v Hanley, per Lord Clyde at 217).
What happens if there is more than one course of action in medical treatment?
In the Bolam case, it was ruled that a doctor is not negligent if they follow a practice accepted by a responsible body of medical professionals, even if there is an alternative course of action. A doctor need not possess the highest expert skill but must exercise the ordinary skill of a competent professional in that particular art. (Bolam, McNair J).
How does Bolam show deference to the medical profession?
Bolam demonstrates deference to the medical profession by stating that a doctor is not negligent if they act in accordance with a practice accepted by a responsible body of medical men, even if there is a contrary view. Courts generally defer to professional judgment unless the practice is unreasonable. (Bolam, McNair J).
What did Bolitho add to the standard of care in medical negligence?
Bolitho introduced a requirement that the court must ensure that the medical opinion relied upon has a logical basis. The court cannot simply accept medical opinions; they must be satisfied that experts have weighed the risks and benefits and reached a defensible conclusion. (Bolitho, per Lord Browne-Wilkinson at 242).
How did Bolitho impact the role of the court in medical negligence cases?
Bolitho allowed courts to scrutinize medical opinions more closely. Courts can no longer act as a “rubber stamp” for medical professionals, and must ensure that the opinions have a logical and defensible basis. (Bolitho, per Lord Browne-Wilkinson).
What was the legacy of the Montgomery case?
The Montgomery case marked a shift in UK law on informed consent, moving away from the paternalistic approach of Sidaway and Bolam. Prior to Montgomery, UK law had been out of step with other common-law jurisdictions, where patient autonomy and information disclosure were more strongly emphasized.
How did the Montgomery case affect patient autonomy?
Montgomery supported patient autonomy by requiring doctors to ensure that patients are informed about material risks and alternative treatments. This shift away from paternalism empowered patients to make informed decisions about their treatment.
What did the Montgomery case establish as the doctor’s duty in terms of information disclosure?
The Montgomery case established that a doctor’s duty is to take “reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments” (para 87).
How is “materiality” defined in the context of informed consent according to Montgomery?
The test of materiality is whether, in the particular case, a reasonable person in the patient’s position would likely attach significance to the risk, or if the doctor should reasonably be aware that the patient would attach significance to it (para 87).
What is the triumph for patient autonomy in recent cases?
Patient autonomy is emphasized in decisions like Montgomery, where Lady Hale stated that a patient is entitled to consider their own values when deciding on treatments, such as choosing between natural childbirth or caesarean section, unless they lack the legal capacity to decide. Lord Reed also highlighted that patients are now recognized as individuals holding rights, rather than passive recipients of care.
What criticism exists regarding patient autonomy and medical practice?
While the requirement for disclosing material risks supports patient autonomy, medical professionals face challenges in practice due to the subjectivity of such disclosures. The shift in standard of care only applies to information disclosure/informed consent, and in other areas of medical negligence, the Hunter, Bolam, and Bolitho standards remain in place.
