Claim in Medical Negligence - Essay Example

In order to advice Sally, with regard to her claims in respect of negligence shown in treating her parents, the liabilities of Roger, Dr Brown, Luke, Tyson, Sinjons Hospital and O-TWO Plc have to be examined. In this context, important case law and statutes have been discussed. In order to establish tort of negligence, three conditions have to be fulfilled. They are, first, there must be a duty of care on the defendant. Second, the defendant must have violated this duty to take care and third, the claimant must have suffered damage from breach of duty to take care by the defendant. In the medical profession, there is always a duty of care between patients and doctors. Thus, the first of these conditions is generally satisfied. However, the third requirement of causation is difficult to prove, because the claimant must establish that the damage suffered was on account of breach of duty of care by the defendant1. There were several cases involving negligence by doctors; and the courts had to determine whether the involved doctors had breached their duty of care. The most important of these were the case of Bolam in England and the case of Hunter v Hanley in Scotland. These cases provided substantial basis for the development of the Bolam test, which is used by the courts to determine negligence of duty of care by doctors2. The courts developed standards of care to be applied to the medical profession. McNair J of the Queen’s Bench Division Jury developed a new test in the case of Bolam v Friern, namely, the Bolam test. To fulfil the conditions of this test, the claimant is required to establish two conditions. First, the claimant is required to prove that the course of action adopted by the doctor, who had treated him, had caused him harm. This falls under the principle of causation. Second, the claimant must prove that any other reasonable doctor in the same situation would not have adopted such a course of action3. The Bolam test employs two conditions. First, the competence level required of the doctor and second, failure of the doctor to discharge his duty within the specifications of that competence. With regard to the competence standard, courts had specified that the expected competence would be what a reasonably skilled person would have exercised in the course of his profession4. This test served to substantiate earlier judgements that a doctor accused of negligence, would be exonerated if the other members of his profession stated that his actions were in conformity with established medical practice. This stance of the medical profession was established in Hunter v Hanley5. In the past, the English courts had deferred to the opinion of medical experts, while trying cases of medical negligence. Consequently, a number of defendant doctors were absolved of all charges by merely demonstrating that other medical professionals would also have adopted similar procedures. However, this judicial practice has changed over a period of time6. It is essential to have a standard of care in medical negligence. Such a standard had from quite some time, provided the necessary perspective for evaluating clinical judgments. When it came to the Bolam test, arriving at the necessary standard was considered by the courts to be the prerogative of the medical profession. The courts were of the view that they could interfere only to a minimal extent with what the expert medical opinion. However, this attitude of the courts has changed over a period of time7. In the Bolam case, it was decided that the principle of standard of care was not breached if a responsible body of similar professionals supported the practice that resulted in the damage. In practice, several choices are available to doctor who is treating a patient and in the Bolam case it was opined that the choice of even the least popular of such options was not tantamount to medical negligence if supported by sufficient number of personnel of the medical fraternity8. Similarly, in the Bolitho v. City and Hackney their Lordships held that there was no unreasonable behaviour exhibited by the doctors who had failed to attend upon a child suffering from laboured breathing, due to the fact that even if they had attended to that child they could not alleviated its misery9. The Bolitho case proved to be a landmark case in the field of medical negligence. This case established that the courts had the freedom to decide that some of the widely accepted medical practices could be guilty of negligence. It also provided an opportunity to judges to scrutinise the concept of reasonableness, as established by the Bolam test10. Subsequently, the Bolitho decision was applied to various cases of medical negligence. The culmination of this trend was the enactment of the Human Rights Act 1998; which called for a much higher standard of medical practice than those required under Bolam and Bolitho. The recent case law demonstrates the fact that mere peer – accepted medical practice is insufficient under the law11. It had been the practice to judge doctors by what their peers in the same profession would have done, when placed under similar circumstances; and this was the ruling given by Lord Tindall in the case of Lanphier v Phipos12. Similarly, in R v Bateman, it was held that if a doctor follows what is common medical practice then he cannot be held negligent for his medical actions13. The rights of the people have to be respected by society and individuals. Similarly, the rights of patients have to be honoured. Upon registration for treatment with a doctor, a patient would be automatically entitled to receive proper medical care. The English doctors have to provide appropriate care to unregistered patients, in instances of accidents and emergencies14. Another significant aspect in the UK is that a patient must be provided with secondary and tertiary treatment, on being accepted by a clinic or hospital for treatment. There is a vast difference between moral duty and legal duty. Moral duty falls within the category of the Good Samaritan principle. For instance, a doctor in the UK, who is not on duty, can attend upon an emergency case15. In such a situation the doctor is not legally required to extend medical service; however, it is deemed his moral duty to render assistance. The General Medical Council exhorts doctors to render medical assistance on moral grounds, in emergencies. This is akin to the situation where the public would render assistance to an injured person, even though there is no legal requirement to do so. However, if the medical attention provided in such instances, is not up to the standard of care, then the doctor can be sued by the patient or his relatives16. A professional would not be judged to have been negligent, merely because he did not possess the highest level of skill. As such, the law requires a professional to exercise the ordinary skill of an ordinary man, performing that particular task or duty. This legal requirement serves to address the problem of junior and senior doctors, operating outside a hospital17. A senior partner declares that he has the competence and expert skills of a senior partner, whereas a junior partner does not make such declarations. However, a junior doctor is expected to possess minimum competence. In addition, such doctors are expected to seek the advice of their seniors, wherever such a course of action is feasible18. A medical professional is expected to act in a manner that a reasonable person with the same skill and expertise would act under similar circumstances. In medical negligence cases, this is a very important factor and the defendant doctor is judged on the basis of this principle19. A presiding judge should not use the benefit of hindsight, while judging a defendant; and justice demands that the defendant should not be judged on the basis of knowledge that was not available at the time of occurrence of the alleged negligence. In addition, the courts must take into consideration any special circumstances that could affect the defendant20. In Muir v Glasgow Corporation, their Lordships held that the reasonable man is presumed to be free from both over-apprehension and over-confidence confidence21. This concept can be applied to doctors. Under this test, the doctor is deemed to be an individual with a reasonable level of skill and competence in his profession. In cases of medical negligence, an obstetrician’s actions are to be judged from the perspective of what other obstetricians would do under similar circumstances22. Soon, the courts became more proactive and were willing to scrutinise the testimony of medical experts. In addition, judges started to examine the credibility of the medical experts. This move was aimed at ensuring legal certainty in such cases; moreover, the courts no longer strictly abide by the opinion of the medical experts. This situation was witnessed in the Bolitho case decision. The House of Lords had taken a corrective step with this decision23. This initiative was aimed at ensuring that the lower courts assumed a greater and more active part in medical negligence cases. It also helped them to deal with such cases from a legal perspective and establish reasonableness of medical conduct. Consequently, it has become the practice for courts to arrive at their own evaluation of expert medical opinion, and such evaluation reveals any bias or partisanship in the expert medical testimony24. The Human Rights Act 1998 has provided several rights to claimants. It has also introduced the concept of expected practice, and thereby supplanted the earlier concept of accepted practice. The concept of expected practice is now the new standard of medical care. In addition to this, several concerned institutions, like the National Institute for Health and Clinical Excellence have established new clinical guidelines25. The courts no longer depend on expert opinions; and the present trend is to adhere to the concept of expected care, with regard to clinical negligence claims. Therefore, doctors have to satisfy legal standards rather than their colleagues’ opinion. They can no longer hide behind the protection afforded by the veil of expert opinion to escape from negligent behaviour26. ROGER A 54 year old woman, Clarice had collapsed in the street, in the vicinity of the Doolittle Health Centre. She was not a registered patient of the latter. At the insistence of a passerby, a trainee nurse at the Doolittle Health Centre, Roger, came to the assistance of Clarice. However, in his endeavours to assist her, he inadvertently injured her head on the pavement. Although Clarice was not a registered patient, she has to get medical help from the Doolittle Health Centre. In the UK, doctors are required to attend upon accident and emergency cases, even if the person involved is not registered. Once Clarice had been admitted to the hospital, the doctors present in that place owe her a duty of care. Roger cannot be held liable for the injury caused to her head, because he had not deliberately harmed her. His intention had been to help her and in his haste and on account of his inexperience, he caused her that injury. In the case of Roger, it has to be taken into account that he is a trainee nurse. Consequently, he cannot be expected to be highly skilled and proficient in nursing care. Nurses are governed by the Code of Professional Conduct, in respect of the manner in which they deal with their patients and it is mandatory for them to develop and protect the interests of patients. The foundation of health care is to better the health of the patient and to refrain from causing them harm27. In Wilsher v. Essex HA, the appellate court opined that a nurse could not exhibit the same competence as a consultant and that a junior doctor’s professional capability was objective and independent of the defendant’s status or personal status28. Hence, as per the decision in Wilsher it would be unreasonable to expect Roger to exhibit the same competence as a physician or an experienced nurse. Therefore, Roger cannot be held liable for the injury caused to the head of Clarice, while he was assisting her, after she had fallen down. Moreover, Roger attended upon Clarice, in order to render assistance to her; and there was neither a malafide nor a negligent motive in his actions. Hence, no violation of any duty of care can be established from the actions of Roger, therefore he is not liable for any claims of negligence. DR. BROWN A warning had been issued by the Chief Medical Officer, regarding the use of the drug Curitall, in cases similar to that of Clarice. This had not been read by Dr. Brown, a General Practitioner with the Doolittle Health Centre, who had been called to attend upon Clarice. Accordingly, he administered Curitall to Clarice, resulting her suffering from an epileptic fit. With regard to Dr. Brown, it is to be examined whether he had violated any duty of care towards Clarice. Dr. Brown had given a medicine, namely, Curitall to Clarice. This drug had been contra indicated in situations similar to what Clarice was in, by the Chief Medical Officer. This recent notification had not been taken cognizance of by Dr. Brown. As a responsible and skilled professional, he is duty bound to keep abreast of the latest developments in his profession. Dr. Brown is a GP in this hospital; hence, it is his responsibility to have the latest knowledge regarding drugs. He is liable for the consequences of not having apprised himself regarding the harmful effects of Curitall. Therefore, he is negligent in his duty towards Clarice and is liable for the damage caused to her due to the administration of this drug. Dr. Brown has breached his duty of care towards Clarice, as he had administered a drug that proved harmful to her, on account of his negligence. As a result of his negligent administration of the drug Curitall, Clarice experienced an epileptic fit. In Bolam, the court ruled that if a sufficient number of medical professionals supported the acts of a physician, then no liability could be attributed to such a doctor. Gradually, this attitude of the law towards professionals changed; and with the advent of the Human Rights Act 1998, a duty of expected care has come into being, which replaced the concept of accepted practice. Therefore, a medical care professional has to comply with legal requirements, rather than what his peers deem to be acceptable practice. Consequently, Dr. Brown is liable for having been negligent, while treating Clarice. Since, he had ignored the injunction of the Chief Medical Officer and he had also failed to take reasonable care, Sally can claim damages from him for negligence in his duty of care. LUKE & SINJONS Clarice was immediately sent to the Accident & Emergency Department of the Sinjons Hospital. In the meanwhile, her blood pressure had risen to such an extent that she required urgent treatment. On the very same day, a major accident had critically utilized the resources of the Accident & Emergency Department of Sinjons. As a consequence, Luke a junior doctor was on call, and he had been working without break for 15 hours, by the time Clarice was brought to the hospital. This prevented him from providing the necessary treatment in a timely manner and the result was that Clarice suffered a stroke. The Accident & Emergency Department of Sinjons has not taken proper precautions for providing medical care in emergencies. As a responsible and noble organisation, Sinjons owed a duty towards patients in emergency conditions, who had been brought to it with the hope that their life would be saved. As such, Sinjons had to exercise the utmost care and caution towards those brought to it for life saving medical assistance. Moreover, it is not impossible for a number of accidents to take place on the same day. Hence, there is no justification for stating that all of its resources had been deployed for dealing with some other crisis. In Barnet v Chelsea & Kensington Hospital Management Committee, the court found that the management of the hospital was under a duty of care towards sick and injured persons. This hospital provided treatment for accidents and emergencies. Therefore, any person who comes to the facility with illness or injury was to be provided with due care. The management of the hospital was under a duty of care to exercise reasonable skill and care. However, the medical officer in the causality department had been negligent, while discharging his duties, as he had failed to examine the claimant and his colleagues29. The situation was so terrible that at the time of Clarice’s admission, she was not provided with a proper hospital bed. In addition, she was not shifted to a suitable ward. This clearly indicates that Sinjons had failed to provide the minimum requirements for a patient in a serious condition. As such, a hospital has to be well equipped and fully prepared to countenance any emergency situation that could arise, in its day to day functioning. Hence, Sinjons has violated its duty of care as an organisation that provides treatment in emergencies and accidents. Moreover, they are vicariously liable for the acts of Luke, their junior doctor. As per the ruling in the Phelps case, Sinjons is vicariously liable for the failure of its employee to exercise necessary skill and care in discharging his duty. The latter cannot defend himself, by stating that he had been working continuously for a long period of time. This is on account of the fact that in emergency departments, personnel should be prepared for rendering their services round the clock. Despite the fact that he is a junior doctor, Luke cannot circumvent his responsibilities during an emergency. The attendants in emergency care are expected to work harder and longer than other personnel. Hence, he is liable for a negligence claim. In Phelps v London Borough, the Court supported the concept of vicarious liability. It accepted that employers were vicariously liable for the actions of their employees, provided a duty of care had been established. In this case, an educational psychologist had allegedly breached a duty of care. The psychologist had failed to exercise the necessary skill and care, while discharging her duties30. The court held that the local authority could be vicariously liable for the negligence of the educational psychologist who was her employer. However, the court refrained from attributing vicarious liability to the local authority, on the grounds of public policy. All the same, the court opined that the local authority could be held liable for loss caused, by the actions of its employee, via substitution, in other situations31. Tyson A highly agitated Henry, on seeing the deplorable condition of his wife and the inadequate care being provided to her, threatened the hospital staff with a knife. Moreover, Henry was in an intoxicated state; therefore, there was no malafide intention on his part. In fact, he was provoked by the crass negligence being shown to his wife by the callous hospital staff. Tyson, the security officer, intervened and attempted to prevent Henry from causing harm to Margo, the head nurse of the hospital. In the process, Henry hurt himself when he fell on a metal cabinet. Assuming that he was not seriously injured, the hospital staff ignored his pleas for help. This is gross negligence towards an injured person, who is in an inebriated state. As per the decision in the Woods case, the staff of Sinjons is liable for negligence in their duty towards an injured person. Although, Henry had pleaded with them to help him, the hospital staff merely ignored him. After some fifteen minutes had elapsed, the hospital staff noticed that Henry was experiencing difficulty in breathing and that he required oxygen. As such, they had breached their duty of care towards him, after he had been injured in his fall. In Wood v Thurston, John Wood had gone to a pub with his friends, where he consumed alcohol to excess and then proceeded to a road junction. At that place, there was truck that was waiting for the signal to proceed. John Wood, in his inebriated state, attempted to cross the road by crawling under the truck instead of going to the back of it and thereby circumventing it. Unfortunately, the truck started to move, while Wood was still under its hood32. This caused Wood to be crushed under the tyres of the truck. However, he was saved from his predicament, before he was fully crushed under the wheels of the truck. Subsequently, Wood, left for a nearby hospital, in order to obtain medical treatment. Thurston, the duty doctor in the causality department, subjected him to a cursory examination and provided him with treatment for his injured nose. Thereupon, he allowed Wood to go home in a taxi. Later, Wood died at home, and as per the extant procedures, his dead body was subjected to necropsy33. The necropsy report disclosed that Wood had been severely injured; specifically, it revealed that Wood’s collarbone and eighteen of his ribs had been fractured, in addition, his lungs were found to be congested. The presiding judge concluded that the doctor on duty had been negligent, while discharging his duties. He further opined that a mere examination with a stethoscope would have disclosed the internal injuries to the patient’s chest. Therefore, the failure of the doctor to examine the patient was tantamount to the denial of life saving treatment34. The oxygen cylinder supplied by O – TWO Plc had not been checked for proper functioning by the hospital staff. This cylinder proved to be defective, and as a result of this, Henry was deprived of sufficient oxygen for considerable time. The outcome was that Henry suffered extensive brain damage. As such, the oxygen cylinder manufacturing company owes a duty of care to test its cylinders for proper functioning. This is all the more so, because these cylinders are used in emergencies and could make the difference between life and death. Hence, the company is liable for negligent behaviour. Moreover, the Sinjons hospital staff owed a duty of care to ensure that their equipment is in proper functioning order. Hence, they are also liable for negligence. This delay in providing him with oxygen resulted in severe brain damage. Although, he was not a patient, when he arrived at the hospital, he became one after sustaining an injury due to falling on a metal cabinet. O – TWO Plc On being informed of this situation, a much agitated Henry, the husband of Clarice, arrived at the Accident & Emergency Department. His agitation increased on his realising that the shortage of beds had prevented her being shifted to an appropriate ward in the hospital. He became abusive, and in his partially inebriated condition, he drew a knife and commenced to threaten Margo the staff nurse. This caused Tyson, the security officer of the hospital, to restrain Henry. In the ensuing scuffle, Henry fell and injured his head. The hospital staff failed to realise the seriousness of his injury and only after 15 minutes, they noticed that Henry was experiencing difficulty in breathing. He was placed on an oxygen cylinder, supplied by O – TWO Plc. This cylinder had not been checked, and it had a defective valve, which prevented Henry from receiving an adequate supply of oxygen. Consequently, Henry suffered severe brain damage. SALLY Four years after this tragic incident, Clarice breathed her last. Henry has remained in a vegetative state, and this was the situation faced by their daughter Sally, on her return to England from Australia. Section 11(4) of the Limitation Act 1980 states that in claims for personal injury in actions relating to negligence, nuisance and breach of duty to care, the perpetrator of such actions would be liable, only if the claim for such injuries had been made within three years from the actual occurrence of the cause of action. Moreover, such claims can also be made within three years of the date of knowledge of the injury by the claimant35. Section 14 of the very same Act defines the term date of knowledge. According to it, the date of knowledge is that date when the claimant first came to know about the injury. Moreover, such injury must be considerable and it should be the outcome of some negligent act or omission of the perpetrator. In addition, the claimant must have identified the defendant who had caused the injury to him36. The claimant must file the suit within the statutory limitation period of three years for damages. If the claimant fails to do so within this period, he must resort to the date of knowledge of the injury to make a claim. Section 33 of the Act empowers the courts to extend the statutory limitation period for claims. The courts exercise this discretionary power, whenever they are of the opinion that it would be equitable to do so37. As per section 14 of the Limitation Act 1980, a claim for negligence can be filed within three years from the date of the knowledge of the injurious incident. As such, Sally came to know of her parents’ terrible plight only after her return to the United Kingdom from Australia. In negligence cases, causation constitutes the connection between a breach of duty and damage. The various tests used to establish causation attempt to describe and limit the conditions of a breach of duty that can be construed as the basis of the damage caused to the claimant. In order to establish causation in tort, the but for test is employed38. A claimant who succeeds in proving that but for the breach of duty by the defendant, he would not have been injured is deemed to have provided sufficient proof to establish the causation of that injury. If the claimant is unable to do so, then the claim will generally fail, because of the absence of proof of causation. However, such an outcome is rare, because in most of the cases, cause and effect follow each other so closely that the but for test provides the correct conclusion39. In our case, the loss caused to Clarice as well as Henry is on account of the negligence shown by the Hospital staff. Hence, they are liable for breach of their duty towards the patients. Sally can file claims for negligence within three years from the date on which she came to know about the tragic situation of her parents. She can claim damages for negligence against Dr. Brown, Luke, Sinjons Hospital and O-TWO Plc. Bibliography Barnett v Chelsea & Kensington Hospital (1968) 1 All ER 1068 Bolam v Friern Hospital Management Committee (1957) 2 All ER 118 Bolitho v City and Hackney Health Authority ( 1997) 4 All ER 771 B.T. Faden RR, A History and Theory of Informed Consent, Oxford University Press, 1986 Chapter 3 Negligence: duty of care and breach of duty, retrieved 4 January 2009, . F Burton & P Mead, Piba Personal Injuries Handbook, Jordans, 2007 Harvey Teff, ‘The Standard of Care in Medical Negligence – Moving on from Bolam?’, Oxford Journal of Legal Studies, Oxford University Press, 1998, vol 18 Hunter v Hanley (1955) SLT 213 Jill Thistlethwaite & John Spencer, Professionalism in Medicine, Radcliffe Publishing, 2008 Lanphier v Phipos (1838) 3 CUP 475 Muir v Glasgow Corporation (1943) SC (HL) 3 Phelps v London Borough of Hillingdon (2003) 3 WLR 776 R v Bateman (1925) Cr. App. R. 8 Section 11 of the Limitation Act 1980 Section 14 of the Limitation Act 1980 Section 33 of the Limitation Act 1980 Sheila McLean & John Kenyon, Legal and Ethical Aspects of Healthcare, Cambridge University Press, 2003 Sooriakumaran P, ‘The changing face of medical negligence law: from Bolam to Bolitho’, British Journal of Hospital Medicine, ISSN: 1750-8460 PMID: 18646413 CINAHIL AN: 2009957651, June 2008 Wilsher v Essex Area Health Authority (1988) 2 WLR 557 Wood v Thurston and others, Times 1951 May 25 Read More