Most of the Law in Relation to Medical Negligence - a Respectable Body of Medical Opinion - Case Study Example

Charles a young boy was rushed to hospital after falling from a climbing frame in the children’s play area of the local park. Charles complained to Doctor Green in the casualty department at the Wellington hospital, that he had injured his right leg and was in a great deal of pain. Doctor Green gave Charles a sedative to kill the pain and sent him for an X-ray of his right knee. The X-ray showed that Charles had suffered no serious injury to his knee and he was discharged and sent home with instructions to his parents to make sure that he rested his right leg and took it easy for a day or two. Unfortunately, Charles was still in pain 5 days after the incident and his parents, Tom and Fay, fearing for his condition took him back to the Wellington hospital where he was diagnosed and treated for a hip injury and a lower back dislocation. Tom and Fay were advised by Doctor Green that Charles would need an immediate operation on his lower back to restore his back to its pre-accident condition. However, Doctor Green did not mention the risk of anything going wrong. Tom and Fay readily signed the consent form for the operation to go ahead and stayed with Charles in the hospital to give him all the support that he needed. The operation went ahead without any negligence on the part of Doctor Green but shortly afterwards Charles was found to be paralysed in his left leg due to a known if unusual risk of the operation. Charles was also found to have developed a condition called avascular necrosis in the region of his hip injury. This condition restricted the supply of blood to part of Charles’ hip. Tom and Fay were advised by Doctor Green that the condition could lead to eventual deformity in the growth and development of their son’s hip. There was nothing that Doctor Green could do to treat this. Tom and Fay were later informed by a nurse who was looking after Charles that the condition was probably a result of the initial injury that Charles has suffered when he fell. However, the nurse also told them that she had overheard Doctor Brown, a Consultant, say that there was a chance that if Charles’ injury had been diagnosed and treated properly on his first visit to the hospital, that it might have healed normally with no risk of deformity. 1) 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) 2) 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) In order to be able to advise Tom and Fay it will be necessary to discuss how the courts determine whether the treatment given falls below the standard set for someone in the medical profession. This will involve examining case law in this area and will, in particular, examine the decision of the courts in Bolam v Friern Hospital Management Committee [1957]1 and Bolitho v City and Hackney Health Authority [1997]2. Within English litigation the law of negligence plays a dominant role and is a well-established course of action in cases where the applicant has suffered harm as a result of the conduct of another. In Burton v Islington [1992]3 Dillon LJ commented “it is now elementary that the law of negligence involved three factors; the duty of care, breach of that duty and causation.” From this it can be noted that in order to bring a successful claim in negligence a patient has to prove that the respondent owed them a duty of care. The three elements mentioned by Dillon in the case above were earlier stated as necessary elements in Caparo Industries Plc v Dickman [1990]4. In this case the court stated that once the claimant could prove that a legal duty of care was owed by the respondent, they must then show that the behaviour of the respondent fell below the standard required by law. If they can show this, then the final element required is proof that there is a causal link between the breach and the damage caused. The courts will not entertain claims were the damage suffered is considered to be too remote. Although in medical practice there is no contractual relationship between the patient and the doctor, there is an implied duty of care, except in cases where the treatment is provided on a private basis. Treatment given on a private basis creates a contract between the patient and the doctor, and therefore private patients would be entitled to sue in negligence as well as in contract. Claimants, bringing claims against doctors where the treatment has been provided under the NHS, often experience difficulties in proving causation. The courts will often apply the principles of equity to assist such claimants. The case of Bolam, mentioned above, was the first case to set the dtandard of care in medical law. This case rise to the Bolam Test, in which “ 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.” This case established accountability of medical malpractice. In this case the judges’ instructed the jury that 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 J, also went on to say the this hypothetical man “need not possess the highest expert skill” and that he will not be liable where he has acted “in accordance with a practice accepted as by a reasonable body of men skilled in that particular area.” The test established by Bolam has since been interpreted in other case to allow doctors to escape liability if the doctor is able to produce experts who can aver that the treatment given by the doctor “was reasonable.” Several cases brought since Bolam have produced a variety of differing results. In Hucks v Cole [1968]5 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.” Prior to Bolam, the judge in Hunter v Hanley [1955]6 made the observation that “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.” Confusion over the application of the Bolam test was evident in Whitehouse v Jordan [1980]7, where the House of Lords attempted to determine whether an error of clinical judgment could amount to negligence. In the final determination, the House of Lords held that such an error could amount to negligence if the error had been made by a reasonably competent professional. Lord Davis acknowledged that “acts or omissions in the course of exercising clinical judgment may be so glaringly below proper standards as to make a finding of negligence inevitable…doctors and surgeons fall into no special category.” Despite the comments made by the judges in this case the House held that the defendant was not liable by using the Bolam test as an escape route. A similar application of Bolam was applied in Sidaway v Bethlem RHG and others [1984]8 in which the court held that the surgeon’s duty to warn the claimant of all the possible risks involved with the operation, thereby depriving the patient of ‘informed consent’, did not amount to negligence. Lord Scarman stated “the standard of care is a matter of medical judgment.” This case demonstrated the way in which the courts were more likely to defer to medical opinion rather that their own opinion. Opinions have altered in this application since the case of Chester v Afshar [2004]9, in which the claimant averred that the defendant had been negligent in the advice given prior to carrying out lumbar surgery. The court, in this case, held that the defendant had been negligent in failing to advise the patient of the foreseeable risk of serious nerve root damage, even though the risk was only minimal. Since this case the courts have placed a duty on doctors to inform the patient of all medical risks involved in the procedure, regardless of how minimal that risk might be. In 1997 the Bolam test was modified by Bolitho, mentioned above, in which the court found that good medical practice does not have to be accepted without question. In this case the court stated that expert evidence must have a logical basis, and that experts have a duty to weigh the risks and advantages of the procedure in order to reach “a defensible conclusion.” Since Bolitho, expert evidence has been allowed to be regarded as inconclusive, thereby destroying the protection offered to medical professions by Bolam. Bolitho has been applied in informed consent cases, and seems to place an onus on judges to scrutinise medical evidence in the same manner in which other expert evidence would be scrutinised10. In Bolitho, following a cardiac arrest, the child suffered brain damage. Although a doctor was summoned, she did not attend, but admitted that, although she had been negligent in not attending, she would not have applied intubation even if she had attended. At the hearing, expert evidence was adduced that other experts would have also refused to intubate the child. On this basis the defendant was held not liable for the death of the child. Lord Browne-Wilkinson made the comment that courts should not accept a defence argument as being ‘reasonable’, ‘respectable’ or ‘responsible’ without assessing whether that opinion is susceptible to logical analysis11. In this case he went on to state “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 defendants treatment or diagnosis accorded with sound medical practice.” Most of the case law in relation to medical negligence refers to a “respectable” body of medical opinion. In Maynard v West Midlands RHA [1981]12 Lord Scarman observed that before accepting a body of opinion as being responsible, reasonable or respectable, a judge “should be satisfied that the experts have directed their minds to the question of comparative risks and have reached a defensible conclusion to the matter.” Following Bolitho the House of Lords has adopted a revised explanation of Bolam, in which they emphasise that only ‘responsible’ medical opinion should be regarded as relevant, and that if the expert opinion was not capable of withstanding logical analysis, then judges would have the authority to reject that opinion. Applying the above to the scenario, Tom and Fay could argue that Doctor Green was negligent in not providing adequate information, in order for them to be able to give ‘informed consent’ to the treatment. They could argue that the doctor owed them a duty to inform them of the risks involved, no matter how minimal, and that as he did not do this he has been negligent. They could also argue that failing to properly diagnose the condition in the first place was negligent. However, this would be difficult to prove, as they were only made aware of this following a conversation with the nurse, who stated that she had overheard a conversation between the consultant and the doctor, which suggested that the prognosis might have been different of the condition had been noticed during the initial examination. In order to prove that the negligent original diagnosis has caused the problems now being experienced by Charles, Tom and Fay would have to establish a causal link between the treatment given by the doctor at that time, and the resulting disability. As the nurse has indicated that there was only a possibility that the prognosis might have been different if the initial diagnosis had been correct, it is unlikely that Tom and Fay would be able to prove that the negligent misdiagnosis is directly responsible for the problems now being experienced by Charles. In relation to the way in which the court are likely to view the standard of care given by the doctor, the court would be likely to examine case law mentioned above to determine whether the treatment given by doctor Green falls below the standard expected of medical professionals. Reference to s18 of the Health Act 1999 is also likely to be made, as this section imposes a statutory duty of quality on NHS and Primary Care Trusts. The General Medical Council and the Royal Colleges have also 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 2000 Peppitt J stated in Penney, Palmer and Cannon v East Kent HA13 “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 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. BIBLIOGRAPHY Department of Health Claims of Medical Negligence against NHS Hospital and Community Doctors and Dentists (1989) HC (89) 34 Department of Health consultation Paper 2001 Building a Safer NHS for Patients: Implementing an Organisation with a Memory Department of Health consultation Paper 2001, Consent- What You Have A Right to Expect p8 Department of Health consultation Paper 2003 Making Amends Clinical Negligence Reform Chief Medical Officer Sir Liam Donaldson Green, Michael & McConnochie, Kathryn, Clinical negligence and complaints: a clinician’s guide. Royal Society of Medicine Press Ltd, 2002 Harpwood, V. 2001. ‘Clinical governance, litigation and human rights’ Journal of Management in Medicine, 15 (3), 227-241. Hope T, Medical Ethics; a Very Short Introduction. Oxford: Oxford University Press, 2004. Hope, Savulescu and Hendrick, Medical Ethics and Law, the core curriculum, Churchill Livingstone 2003, Chapters 3 and 6 Hurwitz, Brian, 1998. Clinical Guidelines and the Law: Negligence, Discretion and Judgment. Abingdon: Radcliffe Medical Press. Hurwitz, Brian, How does evidence based guidance influence determinations of medical negligence? BMJ 2004;329(7473):1024 (30 October) Hurwitz, Brian, Legal and political considerations of clinical practice guidelines British Medical Journal, 1999; 318:661-664 ( 6 March ) Jones M A, Medical Negligence, (1989) Sweet & Maxwell Lord Woolf, ‘Are the courts excessively deferential to the medical profession? Medical law review, 9, Oxford (2001). Mason & McCall Smith, Law and Medial Ethics, 5th Ed, Butterworths, 1999 Mason and McCall Smith. Law and Medical Ethics, Butterworths, 2002. National Patient Safety Agency Report, Seven Steps to Patient Safety, April 2004, National Patient Safety Authority Report With Safety in Mind: Patient Safety in Mental Health Services, 2001 Quick, Oliver, Outing Medical Errors: Questions of Trust and Responsibility Medical Law Review 14 spring 2006 pp 22-43 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 Tabarrok, Alexander, & Agan, Amanda, Medical Malpractice Awards, Insurance, and Negligence: Which Are Related? Civil Justice Report No. 10 May 2006 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 http://www.opsi.gov.uk/acts Table of Cases 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 Burton v Islington [1992] 3 WLR 655 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 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] Lloyds 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) Read More