Medical Law Problem - Essay Example

Application of Medical Law Question One In order to advise Tom and Fey in establishing a claim for negligence, for the damages caused to their son,against Dr. Green and the Wellington Hospital, the extant case law and statute relating to tort of medical negligence has to be examined. To prove tort of negligence: first, the defendant must have a duty of care; second, he should have violated this duty; and finally, the harm caused to the claimant should have been the result of breach of this duty1. It is to be ascertained whether Dr. Green had breached this duty of care. In clinical negligence, causation constitutes the link between breach of duty and damage. The courts employ several tests to establish causation. All these tests attempt to describe the conditions that contributed to the breach of duty. These conditions form the basis of the damage sustained by a claimant. The courts employ the but for test to establish the proof of causation in tort. As such, a plaintiff who is successful in proving that the damage or injury would not have transpired but for the breach of duty by the defendant, is deemed to have furnished adequate proof2. In our case, it is to be established that the harm caused to Charles, is due to the clinical negligence of Dr. Green. People have certain rights that have to be respected by each and every member of society. Similarly, the rights of a patient have also to be honoured. These rights come into existence, immediately upon registration for treatment. Under these rights the patient is entitled to receive appropriate treatment and medical care. In addition, doctors in the UK are duty bound to provide proper medical care to patients injured in accidents or in instances of medical emergencies, even if the patients had not registered themselves3. Consequently, Dr. Green owes a duty of care to Charles, because he had approached him in an injured condition. As such in our present problem, Charles approached Dr. Green after sustaining injuries. It is to be scrutinised whether the omission to treat the claimant’s hip injury, which was revealed subsequently; constituted a breach of duty of care by the doctor. Subsequent to the Bolitho decision, the courts are critically evaluating the test of reasonableness, established in the Bolam case. The doctor, as a responsible professional, should have thoroughly examined the injured Charles. However, he failed to do so. Based on Charles’ statement regarding pain in his leg, the doctor had proceeded to treat him for that particular injury. Since, Charles was a child; the doctor should have exercised greater care and examined him for other injuries. As per the decision in the Wood’s case, failure to examine the patient properly was equivalent to denial of crucial treatment. Similarly, the doctor’s reliance on Charles’ words regarding the injuries sustained by the latter depicts gross negligence; because, Dr. Green as a skilled professional should have taken decisions regarding treatment, after making an independent assessment of the patient’s condition. Dr. Green had failed to perform a thorough physical examination of Charles, prior to treating him. The deformity caused to Charles is on account of Dr. Green’s clinical negligence. Charles would not have been forced to countenance such adversity, if Dr. Green had exhibited greater caution, while diagnosing and treating him. The courts approach towards clinical negligence can be evaluated by examining the various tests employed by them, while deciding such cases. The Bolam test for medical negligence was introduced with Bolam v Friern Hospital Management Committee. In this case, it was decided by the House of Lords that the principle of standard of care was not violated, as long as a responsible body of similar professionals corroborated the medical practice that resulted in damage. Doctors have different choices available, whilst treating a patient and the adoption of a less popular method would not constitute medical negligence. This is the sum and substance of the Bolam case4. As such, the courts judge doctors on the basis of what other doctors with the same expertise and in similar situations would have done. In Lanphier v Phipos, Lord Tindall ruled according to this precept5. In R v Bateman, it was held that a doctor who adopts commonly established medical practices cannot be held negligent6. In Muir v Glasgow Corporation, the House of Lords held that the reasonable man is presumed to be free from both over-apprehension and over-confidence7. This notion can be applied to doctors in negligence cases, because a doctor is an individual who is expected to possess a reasonable degree of skill and competence in his profession. In Bolitho v City and Hackney, the doctors failed to attend upon a child that was suffering from laboured breathing. The House of Lords held that the doctors had not behaved negligently, because even if they had immediately attended upon the child, its misery could not have been assuaged8. Consequent to this landmark decision in the Bolitho case, courts have the freedom to decide whether some of the generally accepted medical practices could entail negligence. Furthermore, this decision provided an opportunity to the courts to evaluate and scrutinise the reasonableness notion established by the Bolam test9. In McFarlane v Tayside HB, a baby was born after a sterilisation operation had failed. The plaintiff sued the defendant hospital for medical negligence. The House of Lords held that the doctors did not owe a duty of care to patients in the normal course of their profession, such as counselling and treatment for sterilization. As such, doctors were not under a duty to nurture the new born baby. Accordingly, their Lordships did not impose any duty of care on these doctors10. In Barnet v Chelsea & Kensington Hospital Management Committee, it was held that the hospital management was under a duty of care to provide medical care to sick and injured persons. Moreover, the defendant had been treating accident and emergency cases. As such, it was obliged to provide medical care to any sick or injured individual who approached it. Therefore, the hospital management owed a duty of care, under which it was expected to exercise reasonable skill and care11. As such, the courts are maintaining a balance between the interests of the medical profession and the rights of the affected patients. To succeed in this endeavour, the courts generally employ several tests. These tests provide the relevant standard of care, in negligence cases. In the UK, patients accepted by a hospital for treatment, must be provided with secondary and tertiary treatment. Accordingly a UK doctor can attend upon an emergency medical case, despite not being on duty at that time12. In Wood v Thurston, John Wood consumed large amounts of alcohol at a public house. Later on he was injured by a truck, whose tyres rolled over his body. He approached a nearby hospital for treatment. The causality department’s doctor performed a cursory examination of Wood and provided first aid treatment . Thereafter he discharged Wood, who went home and died13. The necropsy examination revealed that Wood had serious injuries and multiple fractures of the ribs, and his lungs had been congested. The judge held that the duty doctor had been careless and negligent, while treating Wood. The judge further stated that a mere examination with a stethoscope would have disclosed the patient’s internal injuries.14 Therefore, failure to properly examine the patient was tantamount to denial of life saving treatment Tom and Fay brought Charles back to the hospital five days after his initial treatment; Dr. Green did not inform them about the risks involved in undergoing surgery. It is essential for a doctor to inform about the dangers inherent in surgery. Dr. Green, instead of providing this information, merely, took consent and performed the operation. Charles was paralysed, on account of a known risk in such operations and also developed avascular necrosis around the hip region. Consequently, the growth of Charles was adversely affected. These outcomes of the operation had not been informed by Dr. Green to them. Hence, he is liable for clinical negligence, as per the extant case law. Furthermore, the duty nurse informed Charles’ parents that another doctor had commented that if Dr. Green had properly diagnosed and treated the injury, there would have been no deformity. Thus, Charles was permanently deformed due to Dr. Green’s gross negligence. Since, a colleague of Dr. Green had opined in this manner, the latter should have exercised greater care while medically examining Charles. Moreover, he should have informed them about the risks entailed in the operation. The failure of Dr. Green on all these counts makes him liable for clinical negligence, whilst treating Charles. In Phelps v London Borough, it was held 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 failed to exercise the required skill and care, in the course of her duties. The court ruled that she had breached a duty of care15. Hence, the Wellington Hospital is vicariously liable for the harm rendered to Charles by Dr. Green, while discharging his duties. Dr. Green had perpetrated the negligent acts in the course of his employment with the Wellington Hospital. In accordance with the case law, an employer is vicariously liable for the wrongdoings of its employees, in the course of their employment with them, even if the employees had behaved in a negligent manner. Question Two 21 April 2009 Legal Note: Clinical Negligence The courts will decide clinical negligence cases on the basis of the standard of care expected of a surgeon, who is placed under similar circumstances. As such, the courts are arriving at their own interpretation of reasonableness. In cases involving clinical negligence, a medical professional is expected to act like what a reasonable person with comparable skill and expertise, and who is placed under similar circumstances, would do. This is a very important issue in such cases, and doctors are judged on the basis of this principle16. Clinical negligence is a breach of the duty of care committed by a medical professional. If such negligence results in physical injury or death, then the patients or their family members can initiate legal action to claim compensation, for breach of duty of care by the hospital staff. Doctors are under a duty of care towards their patients; and a doctor is deemed to have breached this duty of care, if he fails to diagnose or intentionally delays the diagnosis process17. Moreover, a breach of duty of care transpires if the doctor does not obtain the consent of the patient for the course of treatment, commits mistakes in administering medication to the patient; employs negligent surgical processes, does not reveal the risks involved in the treatment proposed by him and does not refer or refers in a belated manner to specialists. System errors in the hospital are also considered to be instances of medical negligence. These principles apply to all the medical professionals, like doctors, surgeons, dentists, midwives and nurses18. As per the facts of the case, it is apparent that Dr. Green had not disclosed the risks involved in undergoing the operation, to the parents. This constitutes clinical negligence. Previously, the courts were deciding such cases on the basis of the Bolam test. Subsequent to the Bolitho ruling, the courts are establishing clinical negligence on the basis of the circumstances of the case, instead of relying exclusively on the opinion of a professional body of physicians. From the facts of the present problem and the extant case law, it is evident that Dr. Green as well as the Wellington hospital are liable for an act of clinical negligence, in treating Charles. In Bolam the court held that doctors were to be tried by other doctors with the same expertise. In this case, the defendant doctors had followed the standards established by the medical profession. Therefore, they were not held to be liable for medical negligence. The test used in this case was widely used in cases of medical negligence19. At present, the courts construe reasonableness to imply the standard of care to be exhibited by a skilled professional placed under circumstances that are similar to those of the accused. The courts, no longer rely exclusively on the opinion of a body of medical professionals. Therefore, a medical care professional has to comply with legal requirements, rather than what his peers deem to be acceptable practice. Moreover, the Human Rights Act 1998 has accorded numerous rights to claimants. It has ushered in the novel notion of expected practice, which replaces the erstwhile principle of accepted practice. This all important principle of expected practice constitutes the new standard of medical care20. Hence, the evidence provided by Dr. Green, which aims to show that he had conformed to the accepted medical practice, cannot absolve him of having committed clinical negligence. List of References Barnett v Chelsea & Kensington Hospital Management Committee [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 Burton, F & Mead, P., 2007, Piba Personal Injuries Handbook, Jordans, P 21 Chapter 3 Negligence: duty of care and breach of duty, available at: [accessed 20 April 2009] UNITED KINGDOM. 1998. Human Rights Act 1998. London. Her Majesty’s Stationery Office Jill Thistlethwaite & John Spencer, 2008, Professionalism in Medicine, Radcliffe Publishing, Pp. 44-46 Lanphier v Phipos (1838) 3 CUP 475 McFarlane v Tayside Health Board (1999) 3 WLR 1301 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 Sooriakumaran P, June 2008, ‘The changing face of medical negligence law: from Bolam to Bolitho’, British Journal of Hospital Medicine, ISSN: 1750-8460 PMID: 18646413 CINAHIL AN: 2009957651, P 69 (6) What is “clinical negligence”? Available at [accessed 20 April 2009] Wood v Thurston and others, Times 1951 May 25 Read More