UK Medical Law - Assignment Example

UK Medical Law Q1: Tom and Fay wish to bring a claim in Negligence on behalf of their son against Doctor Green and/or the Wellington hospital and now seek your advice. (80 Marks) Negligence is defined as conduct “which falls below the standard established by law for the prosecution of others against unreasonable risk of harm.” 1 According to the book Ethics and Human Sciences, medical negligence has five basic components: a duty of care; a standard of care; a breach; causation, and; damages.2 Taking into consideration these components and the case law on the subject, the circumstances in the present case point to failure on the part of Dr. Green to exercise the standard duty of care by omitting to conduct standard procedure in examining Charles the first time he consulted him although he may not be liable for negligence due to failure to disclose or for battery on the ground of informed consent in the subsequent surgical procedure which caused the paralysis of Charles’ left leg. A duty of care. Generally, the duty of care refers to the obligation of a person to see to it that harm does not come to another. In medical practise, both the doctor and the hospital owe the duty of care to a patient who comes into the casualty department of a hospital complaining of an ailment and the doctor on duty was informed of it. This duty of care also accrues to any medical doctor whether he is paid for his services or not so long as he renders his services in his capacity as a medical professional. 3 In the case of Jones v Manchester Corporation,4 the court held that the hospital owed a person a duty of care once it accepts him or her for treatment. In the case at bar, there is no doubt that the Wellington Hospital and Dr Green owed Charles a duty of care the moment the he entered the casualty department of the hospital and Dr Green began examining him for his complained injury which he sustained from his fall from a climbing frame in the local park. Standard of Care. In the United Kingdom, the yardstick for that standard of care in the medical practise is the Bolam Test. 5 The Bolam Test was an offshoot of the case Bolam v Friern Hospital Management Committee. 6 In this case, Bolam who was a patient at the Friern Hospital, a mental institution, conceded to undergo electro-convulsive therapy or ECT. ECTs are usually conducted accompanied by the administration of a muscle relaxant on the patient or by restraining the patient or both. In the case of Bolam however, none was employed. As a result, Bolam’s unrestrained violent flailing during the course of the ECT made him sustain a hip injury. Bolam resorted to a court action for damages on the ground of negligence for failure by the hospital and the doctors to exercise the duty of care which could have prevented his injury. The jury however, ruled in favor of the hospital and the doctors upon finding that there exists a contrary body of medical opinion which holds that the administration of muscle relaxant on a patient entails risk and the use of restraint on the patient during an ECT can worsen physical injury. The bottom line in this case is that “a doctor is not negligent if he acts in accordance with a responsible body of medical opinion, even if that opinion is in the minority.” 7 Applying the Bolam Test and subsequent cases which expounded it to the case at bar, the standard of care owed by the Wellington Hospital and Dr Green to Charles is one that not only should have approximated the kind of care that a responsible body of medical opinion would have owed but one which is basically sound and logical, is demonstrable and which is an outcome arrived at after balancing the risks and benefits of the treatment. The practical questions therefore that must be answered here are: whether Wellington Hospital and Dr Green passed the standard of care when the latter merely gave Charles a sedative and ordered an X-ray of his right knee and sent him home to rest after the X-ray showed no injury to the knee, and; whether Dr Green passed the standard of care when he prescribed an operation of Charles’ lower back without telling the parents of the risk of paralysis of the left leg the second time Charles, accompanied by his parents, consulted him five days after the first incident when he did not find relief from rest. In determining whether the hospital and Dr Charles did indeed pass the standard of care on both times, recourse must be had to the standard practises acceptable and observed by doctors and the hospitals under the same circumstances. Breach. In assessing whether the defendant had breached the standard duty of care, courts usually rely on the doctrine of the reasonable man, an objective measurement, which appraises conduct by inquiring whether a reasonable man would have acted in similar manner under the same condition. This yardstick however, is not enough where the person under scrutiny is a specialist, like a medical doctor, because he is certainly not a mere ordinary man but one possessed of specialised skills and knowledge. This is where the Bolam Test comes in. The doctor under this test is determined to have exercised a standard care only if he at least has acted the way an average, competent doctor in his field would have. 8 An error in diagnosing the medical condition of the patient does not necessarily constitute negligence because some ailments may have similar symptoms, according to the book Understanding Medical Law. In the case of Maynard v West Midlands RHA, 9 for example, the Court of Appeal reversed a lower court decision finding negligence on the part of a team of medical doctors who opted to conduct an exploratory surgery to determine whether the patient was suffering from tuberculosis or Hodgkin’s disease rather than wait for the results of a sputum test which result would be released in a few weeks. The surgery involved a risk of damage and in this instance it unfortunately occurred and the sputum test released weeks later tested positive for tuberculosis. In reversing the decision of the lower court, the CA held that the situation under which the team of doctors found themselves was one that called for a clinical judgment, a decision that must be supported by a body of medical opinion and reasonable under the circumstances. 10 Under the Bolam Test, a medical doctor is obliged to exercise the standard duty of care in the diagnosis of patients by “looking at medical notes, asking the patient questions, carrying out an examination of the patient and, if necessary, carrying out tests or X-rays.” In another case of misdiagnosis, the doctor failed to conduct a thorough examination of the patient who was in a state of inebriation at that time and sent him home after his facial cuts were dressed although those who brought the patient in reported that they found him under a moving lorry. The man later died and was discovered to have sustained broken ribs, a broken collarbone and congested lungs. This was the case of Wood v Thurston 11 where the court found the attending doctor guilty of negligence dismissing his defense that he could not have properly interviewed the patient because the latter was drunk which dulled his senses from pain. According to the court, the doctor could have easily detected the internal condition of the patient with the use of a stethoscope. In the case at hand, Dr. Green failed to conduct an exhaustive examination on Charles which would have revealed the latter’s more significant injuries, viz., lower back and hip injuries, considering the kind of accident that he met and his tender age which would have made him susceptible to bone fractures. A mere physical examination exhaustively done and a thorough interview on the manner of the fall, for example, would have led the doctor to suspect injuries in other parts of the body which would have then compelled him to order for more x-rays. His failure to do the basic and standard procedure of examination leading to his failure to diagnose a lower and hip injury could make him liable for negligence, if there is truth to the claim that the avascular necrosis suffered by Charles could have been prevented by earlier detection of the injuries, in accordance with precedent case law in medical negligence. The doctrine of “informed consent” opens a doctor to charges of battery in the event he/she did not inform the patient of the risks involved in the medical procedure being prescribed for the patient and the latter gives consent without the disclosure. “Informed consent’ is a term used to refer to the right of a person to determine for himself/herself what is to be done to his/her body and battery here means “any physical contact without consent.” Informed consent medical cases usually involved situations where a patient has given consent to a medical procedure in which not all of the facts about it have been disclosed to him. 12 The likelihood however, of successfully charging Dr Green for battery in court for failure to disclose the risk involved in the lower back surgery of Charles is nil. In the parallel case of Sidaway v Bethlem Royal and the Maudslay Hospital,13 where the plaintiff who was operated to relieve pressure on a nerve root which had incessantly caused her pain had not been informed prior to the surgery that it would involve the risk of damage to the nerve root itself and to the spinal column, the court dismissed the case of battery subsequently brought by the plaintiff who had been rendered paralysed by the procedure. The lower court held that the doctor acted in accordance with accepted medical practice to which the House of Lords affirmed. The implication here therefore is that the English law does not recognise the doctrine of informed consent. 14 Causation. The element of causation simply means that the injury suffered by the plaintiff is caused by the defendant’s negligence. “Causation must be proved on a balance of probabilities, which means that it has to be shown that it is more probable than not that the negligence caused the injury or damage which is the subject of the complaint.” 15 If it can be proven in court that the avascular necrosis is the result of the failure of early detection of the hip and lower back injury of Charles, then the failure of Dr Green to diagnose should lay him open to negligence charges in court. Damages. The purpose of filing a case of negligence against a medical practitioner in medical cases is to recover and be compensated and unless a plaintiff has sustained damage to some extent, there is no point in filing a case against the doctor. In this case, since Charles suffered avascular necrosis out of the failure of early diagnosis by Dr Charles, he has sustained damage. In conclusion and taking into consideration the five elements of medical negligence and case law on the subject, there is likelihood of success in bringing a case of negligence against Dr Green and the Wellington Hospital on the ground of failure to diagnose which led to Charles condition of avascular necrosis but there is little chance of success however, in bringing a case of battery on the ground of ‘informed consent’ or even negligence on the ground of failure to disclose which caused the paralysis of the left leg of Charles. Q2: Doctor Green has received your letter before action and has started to collect evidence that he in fact complied with recognised medical practice in his treatment of Charles’ condition. Prepare a brief note on the court’s approach to the determination of the standard of care expected of a doctor or surgeon. (20 Marks). The applicable case here which could provide a guide in the process that the court will take in determining the standard of care that Dr Green should have taken and whether he had exercised it in fact is the case of Bolitho v City and Hackney. 16 This case involves a two year old child who was admitted to the hospital because of some breathing and wheezing problems. On the day on question, he suffered three episodes of abnormal breathing the last of which proved to be fatal. On all those three episodes, the attending nurses called the pediatric doctor to see the patient but to no avail until during the last episode, the child’s respiratory system collapsed causing cardiac arrest then brain damage and ultimately death. During the course of the hearing, the court, after determining negligence on the part of the attending pediatrician went on to determine causation or whether her presence or the absence would have changed the course of events. Asked if she would have considered intubating the patent, she said no. A team of medical doctors competent in the field were then asked if they would have intubated or not and five said they would as opposed to the three who would not have. The judge however went on to determine whether the opinions of the witnesses have basis and ruled that the opinion of the three who would not have intubated was more logical on the basis that the narratives of the attending nurses would preclude a finding of hypoxia which would not therefore support intubation. The court held that it would have “to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such an opinion has a logical basis […] the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, on forming their views, the experts have directed their minds to the situation of comparative risks and benefits and have reached a defensible conclusion on the matter” 17 From the aforesaid case, it can be assumed that the court will determine the standard of care in the present case by calling and hearing witnesses with opposing opinions, one side which will support the position that there is a need to make Charles undergo further examinations other than examination of his right knee, that an earlier detection of the hip and lower back injury will prevent the onset of avascular necrosis and that there is a need to disclose to Charles’ parents the minimal but possible risk involve in the lower back surgery. On the other side of the fence, the judge will also hear experts that will support an opposing position, one that will sustain Dr Green’s acts, that there is no necessity to undertake further examinations on Charles’ condition a the time he first consulted because he only complained of pain in the right leg, that an earlier detection of the hip and lower back injury would not have prevent the onset of avascular necrosis and that it is in accordance with medical practice to disclose the parents the risk which might occur if the operation of the lower back of Charles pushes through. The reason for this procedure is to allow the judge to determine for himself which position has logical basis and have been arrived at only after taking into consideration the risks and benefits the medical procedure will present to the patient and which side has basis in claiming that an earlier detection will prevent the avascular condition and in general which opinion is more cogent, more reasonable and logical and therefore the standard of care that must be followed under the circumstances. References Amarakone, K & Panesar, S 2006, Ethics and Human Sciences: Ethics and Human Sciences, Edition: illustrate, Elsevier Health Sciences. Bolam v Friern Hospital Management Committee, [1957] 1 WLR 583. Bolitho v City and Hackney, [1997] 4 All ER 771. De Cruz, P 2001, Comparative Healthcare Law. Routledge Cavendish. Greene, Brendan 2005, Understanding Medical law, Edition: illustrated, Routledge Cavendish. Hiltz, P L 2004, Medical Malpractice: Issues and Law, Nova Publishers. Hope, T & Hope, RA & Savulescu, J & Hendrick, J 2003, Medical Ethics and Law: The Core Curriculum, Edition: illustrated, Elsevier Health Sciences. Jones v Manchester Corporation [1952] 2 All ER125. Maynard v West Midlands RHA, [1984] 1 WLR 634. Sidaway v Bethlem Royal and the Maudslay Hospital [1985] 1 All ER, 643-666. Wood v Thurston [1951]. Read More