The Law of Negligence - Case Study Example

This essay will discuss how the law determines whether a health professional has fallen below the standard required of them in discharging their duty of care to a patient. Discussion on the cases of Bolam v Friern Hospital Management Committee [1957] and Bolitho v City and Hackney Health Authority [1997] will demonstrate the above. The law of negligence is a well-established course of action and enjoys a dominant role in English litigation. As stated by Dillion L.J. “It is now elementary that the law of negligence involves three factors; the duty of care, breach of that duty and causation” (In Burton v Islington [1992]). In order to make a successful claim in negligence, the patient must establish that the defendant owed them a duty of care. Three elements were laid down in [Caparo Industries plc v Dickman 1990] that must be satisfied. 1. A legal duty of care was owed by the defendant the claimant 2. The defendant was in breach of that legal duty, (i.e. His or her behaviour must have fallen short of the standard required by law) 3. There was a causal link between the breach of duty and the damage in question (a question of fact). Moreover, the damage which was suffered must not be too remote (a question of law). In the medical field, there is no contractual relationship between doctors and patients, and a duty of care is implied between a healthcare professional and his patient, except where private treatment is sought. In private medicine, patients can sue for both negligence and contract. The difficulty arises when dealing with practitioners and NHS patients in establishing causation. Therefore equity will intervene to protect confidences. The standard of care for all medical malpractices was established in Bolam v Freirn HMC [1957] .The case saw the birth of the Bolam test, where ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’  The case of Bolam v Friern Hospital Management Committee established accountability for medical malpractice. The judges' directions to the jury stressed that in cases involving special skills, a doctor is required to apply the reasonable skill and care of 'the ordinary skilled man exercising and professing to have that special skill'. McNair also stated that this man 'need not possess the highest expert skill'. He continues saying that a doctor will not be liable where he has acted 'In accordance with a practice accepted as proper by a reasonable body of men skilled in that particular area'. This last statement known as 'the Bolam test' has been interpreted by other case law in the years that followed to mean that doctors can escape liability if the claimant produces medical experts who say "the defendant’s medical practice was inadequate" and the doctor produces experts who say "it was reasonable" then the doctor is not guilty of negligence. In the 1990's, Bolam has been considered in several cases and had many indirect implications in a number of other cases of medical malpractice. In Whitehouse v Jordan the judgment is controversial; illustrating the confusion Bolam has projected on judges themselves. On appeal, the House of Lords, rejected Lord Denning's dicta, and ruled that an error of clinical judgement could amount to negligence provided that it would have been made by a reasonably competent professional. Lord Edmund Davis acknowledged that “acts or omissions in the course of exercising clinical judgement may be so glaringly below proper standards as to make a finding of negligence inevitable … doctors and surgeons fall into no special category”. However, falling in the recognition of Bolam's dominance (to be more specific, using the Bolam test as an escape route not to impose liability), the House of Lords held that the defendant was not liable. In Sidaway v Bethlem RHG the surgeon's duty to warn her of all possible risks involved , hence depriving her of giving an 'informed consent' to the operation, did not amount to negligence. All six Lords, were not clear neither consistent in their argumentative routes, but concluded that the doctrine of informed consent based on full disclosure of all the facts to the patient is not applied as such under English law. In Lord Scarman's own words "the standard of care is a matter of medical judgment". In this case, the deference to medical opinion as opposed to the court's opinion is even more evident than in Whitehouse v Jordan. In Chester v Afshar the claimant alleged that the defendant had been negligent in his advice prior to the lumbar surgery performed. The trial judge found that the defendant had been negligent in failing to advise her of the 1-2% foreseeable risk of sustaining serious nerve root damage. Following Chester v Afshar doctors have to apply Bolam in terms of determining what a patient must be told regarding medical risks. The Bolam test makes no allowance for inexperience and cannot be used as a defence by the defendant (17). In Maynard v West Midlands RHA the plaintiff alleged her consultants were negligent in deciding to carry out an exploratory operation to determine whether she was suffering from Hodgkin's disease which resulted in damage to her laryngeal nerve. Lord Scarman stressed the importance of the Bolam test and acknowledged that a judge is not permitted under the test to decide on a case based on his 'preference' of one medical opinion over another. The above makes it clear that the Bolam standard is established as the relevant test in assessing the standard of care required in an action in negligence as far as malpractice in treatment, disclosure of information and diagnosis are concerned. The Bolam test was modified by Bolitho v City and Hackney Health Authority [1997](24) by stating that good medical practice does not have to be accepted without question.  Expert evidence must have a logical basis and experts should have weighed up risks and advantages associated with the procedure and reached “a defensible conclusion” (25).  Bolitho limits Bolam by making expert evidence inconclusive.  Bolitho has been held to apply to cases concerning informed consent (26) and suggests that judges should scrutinise medical evidence, in the same way that other expert evidence is scrutinised. Lord Browne-Wilkinson in Bolitho talks about medical opinion of experts being challenged or held unreasonable only in “rare cases”. He also said “I am not here considering questions of disclosure of risk”, which appears to mean that restricting Bolam in this sense has already been achieved in disclosure of information cases (27). In Bolitho a child suffered brain damage from cardiac arrest. The doctor did not appear when summoned. She admitted this was negligent, but stated even if she had appeared, she would not have applied ‘intubation’ which was the only way to save the child. Evidence was adduced that a responsible body of medical opinion would have done the same. It was held that even if she had attended the child would have still died because she would not have intubated as it was not without risk. The court should not accept a defence argument as being ‘reasonable’, ‘respectable’ or ‘responsible’ without first assessing whether such opinion is susceptible to logical analysis. Lord Browne-Wilkinson said: ‘The court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment or diagnosis accorded with sound medical practice.’ In the Bolam case McNair J. stated [1957] the defendant had to have acted with the practice accepted as proper by a "responsible body of medical men." Later, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a "respectable" body of professional opinion. The use of these adjectives responsible, reasonable and respectable all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. The judge before accepting a body of opinion as being responsible, reasonable or respectable, should be satisfied that views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.’ The House of Lords adopted a revised explanation of Bolam. They emphasised that only ‘responsible’ medical opinion was relevant and stated that where expert opinion was not capable of withstanding logical analysis then the judge would have authority to reject it. This suggests that the law courts have control over the standards expected by the medical profession. In the case of Hucks v Cole [1968] the presiding judge stated “the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not… conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well known advance in medical knowledge, or whether they stem from a residual adherence to out-of date ideas.” In Hunter v Hanley [1955] the judgement stated ‘compliance with or deviation from a clinical guideline is unlikely to prove conclusive in a medical negligence action unless it can be shown that the guideline is so well established that no reasonable doctor acting with reasonable skill would fail to comply with it.’ A statutory duty of quality has been imposed on NHS and Primary Care Trusts by s18 of the Health Act 1999 and the General Medical Council and Royal Colleges have agreed that good practice should be measured against established guidelines. They stressed the importance of robust mechanisms to identify and maintain high standards in medical care. (Good Medical Practice, GMC 2001; Good Medical Practice for Physicians, RPC 2001). Further controls have been placed on the medical profession by the introduction of the NHS Reform and Healthcare Professions Act 2002. The Civil Procedure Rules 1998 have also radically transformed the rules of court that govern clinical negligence actions. In the recent case of Penney, Palmer and Cannon v. East Kent Health Authority [2000] Peppitt J. tested the evidence of experts using the Bolitho approach and stated: ‘I do not consider that the evidence of Drs Hudson and Boon, defendant experts, stands up to logical analysis...This is not to disparage the evidence of either. It is rather that in my judgment, their opinions cannot stand’. The Court of Appeal upheld the decision and analysis of the judge and approved of a more interventionist stance in determining the legal standard of care. It follows that questioning the use of national guidelines by the court would form part of this interrogative approach. The test of good professional practice now gives greater respect to patient autonomy. In other countries like the United States of America and especially Australia, the law does not protect doctors so strongly. In Canada Bolam test is rejected, the judges ask what a responsible patient would want to know rather than basing the information on a ‘responsible body of medical opinion’ (Lord Woolf). Other jurisdictions have rejected the standard set in Bolam regarding disclosure of risks.  The Canadian Supreme Court rejected the “professional medical standard” in determining how much the doctor should disclose (28) and recognised a distinction between those matters requiring technical skill and thus falling within the exclusive professional competence of doctors, and conduct not requiring medical expertise, and therefore information which a layman is in a position to evaluate.   The Australian courts followed suit and have also abandoned Bolam in this area and held that the patient should be told everything in order to make an informed choice about his treatment.  Unfortunately the English courts do not have such a pro-patient stance as was taken in Rogers v Whitaker, and prior to Chester v Afshar the doctrine of informed consent had no place in English Law (31). In English law the requirement was that only the “broad terms” of the treatment should be volunteered to the patient as laid down in Chatterton v Gerson (35).  This means information about the broad risks and benefits of the treatment from the medical practitioner’s point of view, and not the patient’s.   Whereas American and Canadian law in this area is based on the patient giving an “informed consent” (36) and this requires the practitioner to tell the patient what the patient would want to know and not what the practitioner thinks the patient ought to be told.  The Surgeon’s Duty of Care (37) suggested that, in the area of surgery at least, informed consent may be required, “….information should be provided in the detail required by a reasonable person in the circumstances of the patient to make a relevant and informed judgment…”  Indications can be seen in the judgements of cases like Chester v Afshar of a move toward informed consent.   The conclusion that can be reached from the above is that the test of medical negligence started in the Bolam case is evolving and adapting to requirements of society today. The initial test was based on judging the standard of care on the basis of the ordinary professional man. Bolitho changed this stance by the use of a logical analysis of the care given. It would appear from recent case law that the standard is now moving towards a more interrogative approach and questioning whether the standard of care is adequate. General Comments C Channon 12/01/07 (MY EXAM MARKER FOR THIS ESSAY) This is not a bad draft at all but it does lose itself in places and I would refer you to the individual comments regarding this point. You must always keep the assignment question in mind and especially when you come to the conclusion so as to go as far as you can towards answering the question which I feel you have fallen short of in your conclusion. It is weak in its current form whereas your introduction and the bulk of the assignment was very focused. To conclude you simply should be stating that the law determines by X, Y and Z whether a proof has fallen below the required standard of care… and then ‘in my opinion… is the system good, bad indifferent. ..I have illustrated how the system works in other jurisdictions and so forth… I hope that you will take on board theses comments before submitting your final version and do not forget to include the case citatory, bibliography and statute list (if you feel necessary). I would like to see more journal research and academic opinion and of course mention of Chester v Afshar CASE CITATOR (NEEDS TO BE IN ALAPHEBTICAL ORDER Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 Bolitho v Hackney Health Authority [1997] 4 All ER 771; [1998] AC 232 p.397 Burton v Islington [1992] 3 WLR 655 p.234 of De Cruz Caparo Industries plc v Dickman [1990] 1 All ER 568; 2 AC 605 Chatterton v Gerson [1981] 1 All ER 257 Chester v Ashfar [2004] UKHL 41 Hucks v Cole [1968] 4 Med LR 393 in Bolitho Hunter v Hanley 1955 S.C. 200 1955 S.L.T. 213 [1955-95] P.N.L.R. 1 Maynard v West Midlands RHA [1981] 1 All ER 635 Penney, Palmer and Cannon v. East Kent Health Authority [2000] Lloyd's Rep. Med. 41 Rogers v Whitaker (1992) 175 CLR 479 Sidaway v Bethlem RHG and others [1984] 1 All ER 1018 (CA); [1985] 1 All ER 643 (HL) Whitehouse v Jordan [1980] 1 All ER 650(CA), [1981] 1 All ER 267 (HL) p.973 Bolitho v Hackney Health Authority [1997] 4 All ER 771; [1998] AC 232 p.399 and Montgomery p.175 “[t]the more serious the allegation the higher degree of probability that is required” Hornal [1956] 3 All ERp.973 Sidaway v Bethlem RHG and others [1984] 1 All ER 1018 (CA) p.1030-1031 Brown Wilkinson LJ in Sidaway p.1034; Dunn LJ p.1030. Numerous similar statements also appear in other cases BIBLIOGRAPHY 2nd Edition, Oxford University Press, London 2002/2003) (Cited in this paper as ‘Montgomery 2002/2003’) p169 – standard of care, relies on authors text) Montgomery 2002/2003 p173,172 copied from book – slightly changed –modified Lord Woolf, ‘Are the courts excessively deferential to the medical profession? Medical law review, 9, Oxford (2001). Samanta, A, Mello, M.M, Foster, C, Tingle, J & Samanta, J, The Role of Clinical Guidelines in Medical Negligence: A Shift from the Bolam Standard, Medical Law Review 2006 13(3) 321-366 Mason & McCall Smith, Law and Medial Ethics, 5th Ed, 1999, Butterworths http://www.opsi.gov.uk/acts Department of Health Claims of Medical Negligence against NHS Hospital and Community Doctors and Dentists (1989) HC (89) 34 Jones M A , Medical Negligence, (1989) Sweet & Maxwell, p 15 http://alexanderharris.co.uk/article/General_Medical_Council_publish_standards_guide_2767.asp http://careerfocus.bmj.com/cgi/content/full/330/7491/103-a?etoc http://www.nes.scot.nhs.uk/pharmacy/SUPPORT/documents/Volume%201%20Chapter%204.pdf Read More