The of Mr. Malchance Who Died in a Medical Facility - Case Study Example

Introduction This paper examines the case of Mr. MALCHANCE who died in a medical facility where he was diagnosed of a minor knee injury. From the case analysis, it is apparent that a series of medical issues can give rise to some legal matters that can be resolved by his widow and executrix. Thus, the research will critique the issues, identify the relevant rules and apply them to the problem to provide an advise on a legal path of action that can be taken by the deceased estate. Issues For the sake of proper and critical analysis, the issues will be classified under three main headings: 1. Diagnostic and Assessment issues. 2. Treatment Issues and 3. Complications from Treatment Diagnostic and Assessment There was no record of pre-operative assessment and there is no fitness test that was conducted. Thus, information and consent is quite suspicious. The conflicting ASA rating that is presented by the nurse and the anaesthetist shows that there was a potential issue with negligence in the the ascertainment of the patients consent in the process. Treatment Issues It appears that there is an issue with the use of the GA which was risk prone and not very appropriate for the minor knee issue that was suffered by Mr MALCHANCE. This raises questions of negligence and other liabilities Complications There are symptoms of VF that were observed in the process. This shows that there was an obligation for the treatment of that complication when it was noticed during the surgery. Also, there was a case of equipment failure on the part of the medical staff. Finally, there was an issue with the product that was used, LifePak and its liability and other patent matters that can give rise to claims of legal action by the executrix of the deceased. Rules The concept of patient autonomy refers to the right that patients have to decide what will affect the quality of their lives1. This implies that patients have the right to take a decision on whether they want to accept a given type of treatment or not. However, most patients are not experts in medical science and medical practice. Hence, they cannot make informed choices and take decisions about whether and how they want to receive their treatments. This leads to various discussions about consent in biomedical ethics. Consent The broad rules about consent were established in Re: F V West Berskhire Health Authority. In this case it was established that in some cases, a medical professional could take a decision on the best treatment or the best medication that must be given to a given patient especially in cases where consent cannot be sought. However, this was highly limited by other cases which seem to indicate that patient autonomy must be respected in all cases except where the Mental Capacity Act (2005) can be invoked successfully. Section 2(1) of the Mental Capacity Act (2005) indicated that absence of consent occurs where the patient could not communicate the decision because of impairment or disturbance in the functioning of the brain. In such situations, the medical professional may be able to act on behalf of the patient. Section 3 goes further to indicate that a patients ability to consent is impaired where I cannot consider information relevant to the decision or weigh the information appropriately or communicate his decision. Thus, the medical professional must use the most reasonable means to seek the best interest of the patient (Section 4). Under the European Convention on Human Rights, patients have inherent and inalienable rights to life and hence, a medical professional can use a reasonable means to save the life of a patient who cannot consent at a given point in time, provided that the process is not degrading2. Although the case of Newbury V Bath District Health Authority3 indicated that there is no duty in common law to explain risks to patient, other situations and cases have shown that there is some liability on medical professionals to explain issues to the patient in order to allow the patient to take an informed decision about the treatment or case at hand. In Burke V Leeds Health Authority4 it was held that the doctor had no obligation to explain that chemotherapy would have been less risky if it was delayed. This buttresses the common law position which limits the obligations and requirements of medical professionals. However, negligence is still an issue that can give rise to some liabilities in medical matters. Where there is a clear duty of care for a doctor to warn a patient, an action can be brought by a victim or his family [if deceased] in tort for damages5. In such an action in tort, the victim needs to prove that a specific harm was caused by a given treatment which the medical professional failed to inform the victim of6. Such an action is not likely to work if there was no other option and the patient will have consented to the option in order to survive7. However, if the treatment has a specific percentage of risk and other options existed, the patient should be given notification of the risk involved and the options available8. In a list of ideal activities put forward by the UKs National Health Service, the right method of seeking consent from patients is to ensure that they take their decisions with three main pointers in mind9: 1. Voluntary: The patient should be allowed to take the decision on the treatment on his or her own free accord. S/he must not be forced or coerced in any way. The decision must be by choice but not as some kind of compulsion. 2. Informed: The patients decision must be based on relevant facts that are taken from expert studies relevant to the case. Thus, the medical professional has the obligation to present all the relevant facts and the relevant results that will come out of the treatment in question. This must include the basic overview of the situation at hand and the treatment that could be given. The patient must also know the likely outcomes of each of the options and the treatment option must be explained with great detail and precision10. 3. Capacity: The patient must be of the right mindset and be in the right age group and category to give his/her consent. If these three features are not present, the consent might not be valid and it can be said that the medical professional acted in a manner that gives rise to a breach of duty. Consent can be given either verbally, non-verbally or in writing11. Clinical Negligence – Duty of Care The claims that can be brought under clinical negligence are based n the existence of some kind of duty of care12. This is because every professional relationship involves a connection in which one acts as the expert and the other acts as the client who is paying for the expertise being dispensed. This creates a duty and obligation which makes it imperative for the expert to act in good faith with a vision of attaining the best possible result. In Bolam V Friern Hospital Management13 it was held that a medical practitioner is not negligent if s/he acted in a way that skilled medical practitioners would have acted in the circumstances at hand. This was confirmed in the case of Wilsher V Essex AHA14 where it was stated that a medical professional needs to act according to a standard of care that a skilled practitioner in his field must operate within. The case of Bolitho V City of Hackney HA established that where a person acted according to the rules and expectation in his level of qualification or activity, the action must be logical and reasonable15. In other words, where a medical professional identifies that adhering strictly to the rules will cause more harm, the individual is permitted to deviate from the standard of care and seek the best results possible. However, a medical professional can put up a defence that one breach of standard medical practice rules will have opened the floodgates for other breaches to occur which would have been bad for the patient16. Clinical Negligence - Action In order for an action in tort for clinical negligence to stand, there is the need for a number of rules to be fulfilled. First of all, there must be a “but for” test which will establish that the action of the medical professional in question was sufficient to cause the issue at hand17. This will help to ascertain the level of blameworthiness that is attributable to a given medical facility or practitioner. In most cases, where the defendants contribution was less than 50% of the total cause of the injury or death, the claim is not upheld18. Thus, it is necessary for the claimant to prove to a high standard that the defendant is really responsible for the situation at hand. This is what the court of appeal called “material contribution” and a “more than negligible cause” in Bailey V Ministry of Defence19. The claimant must prove on the basis of the balance of probabilities and this will be the basis for the definition of whether the defendant is liable for damages or not. Clinical Negligence – Causation and Contribution The case of Thomas V Curley20 indicated that a medical professional has obligations under the concept of res ipsa loquitur. In other words, a medical professional has to be aware of the risks of a given medical activity before he undertakes it. If the risk is clear and obvious and the practitioner goes ahead to undertake a given treatment, the practitioner is liable for the consequences. Also, the case of Wright V Cambridge Medical Group21 involved a patient who contracted a bacterial infection in the hospital after a treatment. The situation was not diagnosed before discharged and the patients discharge and she suffered an infection which led to a permanent adverse condition. The court of appeal held that the treatment was part of a continuous process and once the treatment had begun, this particular incident was part of the main situation at hand. This is known as the concept of the loss of chance. Equipment Failures – Product Liability and Patent Issues The Consumer Protection Act 1987 places a strict liability on the manufacturer and other connected entities in injuries arising from defective products. The Consumer Protection Act covers common goods, pharmaceutical products and provides for injuries for damage if it is more than £275. In order to define the position of a given equipment, there is the need to ascertain whether it was work equipment or not22. This is done through examining whether it was being used as a medical equipment and whether workers had some obligation to ensure it was working in the right status or not. To be able to establish the position of a given producer, there must be the need to identify if the product was being used according to specification or not23. In this quest, the Patent Act of 1977 is essential to identify which use the invention was to be put. Through this, the usage and the procedure of usage will determine the level of apportionment or blameworthiness of the medical professionals/facility and the producer/agent of the equipment or product in question. Application In this section, we will apply the relevant laws to the facts of the case in order to identify important trends and possible rulings that are likely to result from the case at hand. Consent In order to discuss the issue of consent and ascertain whether it was granted or not, we will have to view it from the angle of patient autonomy. In this quest, we will identify whether the patients autonomy was granted or not and define whether the consent was sought or not. The first question in law is to ascertain whether Mr. Malchance merited patient autonomy. From the case of F V West Bershire it appears that Mr. Malchance was in a position to be given all the rights of an autonomous patient. This is because there is no evidence that his mental capacity was limited in any way. Also, he was not a minor or have any significant and relevant lacks which could be classified as sufficient to limit his consent. The next question is to ascertain whether he was informed about the options he had or the implications. The third question is whether he made a voluntary endorsement of any of the options. From the facts it appears there was no pre-operative assessment. This suggest that there was no attempt to provide an informed decision. There was a dubious fitness test and the conflicting results from the ASA test indicates that no effort was made to reconcile the different sets of results that were collated. This is because if they had used the information, they will have found a way to finalize the conflicting decisions and choose a more certain result. This means that the health facility failed to provide an informed choice for Mr. Malchance. It is logical to infer that Mr. Malchance was not given the opportunity to ascertain the options available to him and the corresponding risks that came with each of them. Hence, it is apparent that the treatment was conducted without his consent. Treatment Issues The Hedley Byrne principle of the law of tort indicates that once a person is holding himself out as a professional and another is relying on his competence, then a relationship exists between them that must be discharged in good faith. Such a relationship was created when the hospital decided to treat Mr. Malchance. First of all, the fact that the hospital failed to come up with a clear and certain diagnostic report on Mr. Malchance is a show of gross negligence. Two conflicting reports on a patient without an attempt to get a third one to reconcile the two shows that the facility operated below the standard of care expected of it. Secondly, the case Mr. Malchance brought was a minor issue of knee pain. And the hospital knew that GA was a disproportionate system that was suited for a major operation. Going by the principles of Thomas V Curley (2011), it is apparent that the hospital knew clearly that sleep apnoea was indicative of GA and it was dangerous. This created a case of res ipsa loquitur which required the hospital to avoid overtly and conclusively dangerous situations in their trade. However, they went ahead anyway and used GA. This was a risk and they hold some degree of liability under it. From the case of Wright V Cambridge Medical Group (2011) the VF that resulted from the GA can be traced directly to the GA and the chain of causation existed unbroken. Hence, there is some liability for the hospital. And “but for” that GA procedure, Mr. Malchance will not have suffered that VF. Normally in tort, the person who caused the whole problem is guilty unless an actus novus interveniens or another act happens to break the chain of causation. Complications As the complications were identified, attempts were made to deal with the problem. As identified above, the injury is traceable to the party that caused it unless an attempt to save him causes further complications. From the case that occurred in the recovery room the hospital bears some liabilities for the issue. First of all, their emergency button failed. This means that as a hospital that is positioned to save lives, they had a procedural limitation for important emergencies. Secondly, LifePak 1 was not working. This means they were not in a position to deal with emergencies. Thirdly, LifePak 2 was not fully charged. This was a foreseeable consequence in emergencies and hence, they did not prepare for it. Finally, LifePak 3 worked. The relevant issues in this is that the hospital bears a primary responsibility for their failed systems. The manufacturers of LifePak 1 will have to bear responsibility for the failure of their product, if it was used in the normal sense and the normal way prescribed by them. This is an obligation under the Patent Act 1977 which makes it attributable to the manufacturers. However, the right to sue by the executrix of Mr. Malchance is from the Consumer Protection Act. The obligation for the failure of LifePak 2 lies with the hospital because they failed to charge it to deal with emergencies. Thus, the obligations are split between the hospital for LifePak 2s failure but the manufacturers are responsible for LifePak 1 and its inability to work, provided they used it in a way that was prescribed by the manufacturers and it is worth more than £275. Conclusion Mr. Malchances widow can sue the hospital on two primary and fundamental grounds. The first is that the hospital did not respect the Mr. Malchances autonomy and hence, they did not take reasonable care to obtain his consent before the treatment commenced. Secondly, she can sue for the hospitals breach of duty and professional negligence which resulted in Mr. Malchances death. She will have to prove that the hospital was negligent in their diagnosis, they were aware of the risk of using GA which was disproportionate to the condition of Mr. Malchance and also prove a direct linkage between the VF and the use of GA. In secondary claims, she can sue the hospital for gross negligence in preparing for the foreseeable events in the emergency room and the lack of a standby life resuscitating device. Finally, as part of the secondary claims, she can sue the manufacturers of LifePak1 for the malfunctioning of their device in resuscitating her husband. Books A Buchan. Lewis and Buchan Clinical Negligence: A Practical Guide (London: Bloomsbury Professional 7Edn, 2012) C Cameron and Gumbel, E. A. Clinical Negligence: A Practical Handbook (Oxford: Oxford University Press 4th Edn, 2007) M. J. Powers, N. H. Harris and A. Lockhart. Clinical Negligence (London: LexisNexis, 3Edn, 1999). P Balen. APIL Clinical Negligence (London: Jounch Publishing Ltd, 2008) Journals N Wainwright, D. Leigh. “Medical Negligence” British Journal Journal 2005 32(1) R. Gilbar. “Family Involvement, Independence and Pateient Autonomy in Practice” Medical Law Review Vol 19(2) pp192 – 234 Cases Bailey V Ministry of Defence [2008] EWCA Civ 883 [2009] 1 WLR 1552 Bolam V Friern Hospital Management Committee [1957] 1WLR 582 Bolitho V City of Hackney HA [1993] P1Q2 P334 Bonnington Burke V Leeds Health Authority [2001] Chelsea V Kensington Hospital Management Committee [1969] 1 QB 428 Chester V Afhar [2004] UKHL [2005] 1 AR134 Dalling V Hale and Co [2011] EWHC Civ 365 Gregg V Scott [2007] UKHL [2005] AC 176 Hotson V East Bershire HA [1985] 1 WLR 1036 Less and Carter v Hussain [2012] EWHC 3513 (QB) New bury V Bath District Health Authority [1998] OB (by his mother and litigation friend) (FC) (Respondent) v Aventis Pasteur SA [2010] UKSC 23 Re: F V West Berkshire Health Authority Smith V Barking, Havering and Brentwood Health Authority [1994] Smith v Northamptonshire County Council [2009] UKHL 27, ALL ER Thomas V Curley [2011] EWHC 2103 QB Wilsher V Essex AHA [1987] QB 730 Wright V Cambridge Medical Group [2011] EWHC Civ 669 Statutes Consumer Protection Act 1987 Mental Capacity Act 2005 Patent Act 1977 Human Rights Act 1998 European Laws European Convention On Human Rights 1949 Websites NHS Choices. Consent to Treatment (NHS.uk) Accessed 5 June 13. Read More