Medical Ethics and Law: Lyndas Case and the Liability Test - Assignment Example

Name Student Id Lecturer’s Name Date Question A. Lynda’s Case In the case of Lynda there are elements of medical negligence and therefore, she can take Pearson Foundation Trust (PFT) to a civil court so as to seek compensation. The reason behind having a medical negligence claim is that the medical attendants did not take the necessary tests that would have prevented Lynda’s boy from suffering from Down’s syndrome1. The medical attendants did not administer any preventive drugs which would have helped Lynda to protect his child from the Down’s syndrome given she was 45 years old. In a medical negligence case one must ensure that there is liability and causation so as to obtain compensation2. Medical negligence is that situation where a patient or the relatives feels that the medical attendants would have done something to prevent a certain occurrence. This may also be possible if the patient has suffered increased harm as a result of medical management short comings3. The doctors at PFT did not carry out additional tests on Lynda given they knew the risk of having a pregnancy at her age. The medical attendants at PFT would have taken precautionary measures to protect both Lynda and her child. Medical negligence is a serious offence in law and it is punishable by very heavy fines and medical attendants might even lose their licenses4. Successful medical negligence cases have serious impact on the medical institutions because they have their reputation affected. The reason behind this is that people lose trust on such medical institution which has been found guilty of medical negligence5. Negligence is defined as where people who is trusted by another to give care and advice on something which is of high importance to the patient and would even endanger the patient’s life6. This action may lead to harm to the person seeking care from the medical personnel. This is also an element of tort which is defined as a civil wrong that is realized when a person who is obligated to another acts in a way that is seen to negligent their duties towards the other parties7. This obligation should be a legal one because it involves hospitals, corporations and other entities that should be entrusted by the public to give guidance on some issues. The tort law is taken to be part of contract law though obligations in contract law are taken willingly. Duty of care is where a person is obligated to give care to another person which should be care of professionalism. The person who is to give the duty of care should be authorized by the corporation he or she is representing8. In this case the medical care givers are the representatives of the hospital and therefore, they should have attended to Lynda in the best way possible so as to ensure her life and that of his son are not put at risk. The medical care providers own duty of care to the patients and they should ensure all the necessary tests and precautionary measures that would ensure safety of their patients9. In order for the case of negligence to be successful claimant who in this case is the patient must show and prove that the medical service providers owed a duty of care to them. Therefore, Lynda must provide this evidence and prove in order for to be compensated. The patient should also show that the medical personnel did not take the necessary precautions while attending to her10. This will be provided by showing that the medical care providers were negligent in the way they managed the patient’s situation. This will allow establishing if the negligence of the medical care personnel led to harm and injury to the patient11. Lynda will need to succeed on proving that there is both liability and causation. The liability in a medical negligence case should be show that the medical care providers acted in a way that no other medical care provider will have provided the care in the same way12. The patient should also show that the injury or the harm they are suffering from resulted as a result of the medical care they received from the accused medical care providers. This is determined if the care given had a 50% causes of the harm the patient suffered resulted from the medical process undertaken by care givers. In Lynda’s case the medical care providers’ negligence led to a Down’s syndrome to Lynda’s son. This also led to Lynda suffering from postnatal depression. This could be connected to the loss which Lynda has suffered currently and in future13. The medical care providers should ensure that they have not breached the duty of care they owe to the patient. This will be possible if the medical care providers gave all the required advice and care that will save the patient from any harm resulting from the medical care process14. The medical care providers need to consider the probability of the patient suffering from injuries as a result of the process they have undertaken on her or him. The medical care providers should take all the precautionary measures so as to ensure the patient is safe. The medical care providers will have breached the duty of care if they have not taken the recommended care on the patients. The medical care providers owe the duty of care to their patients because they are experts in the medical field. The patients trust thee medical care providers with their health and therefore, they should take all the tests that will ensure that the lives of their patients are not in danger15. In Lynda’s case given her age, the medical care providers would have carried out all the tests to ensure Lynda was safe. They would also have provided supplements to help protect the child from suffering from Down’s syndrome. Lynda trusted the medical care providers to give the best care possible to ensure that she was safe together with his unborn son. The medical care providers did not carry out any tests or even they did not give any supplements to prevent Down’s syndrome. This is a breach of duty of care which could lead to litigation against the institution and medical care providers16. The Liability test The Bolam Test In the liability test there is need to apply Bolam test so as to identify whether the medical care providers could be responsible for the injury Lynda and her son are suffering. This test is explained in the case Bolam v Friern Hospital Management Committee [1957] 2 All ER 11817. The case involves direction by McNair to the jury. According to the case a medical care providers are not guilty of medical negligence if they acted in a way that is seen to be in accordance with the prescribed class of medical care18. The care given should be proper and responsible as seen by a body of medical professionals who have skills in the art of providing medical care. The medical care providers are not negligent if they took all the necessary precautionary measures that would result to any future injuries to their patients19. This implies that the medical care providers are evaluated by using the standards set by their fellow medical care providers. This means that one is not judged by the standards of the most prudent professionals in the medical field20. The medical care providers should give evidence in court as general practitioners but not medical specialist because this would appear to be bias. Therefore, the standards set for the medical care providers so as to identify medical negligent should be measured against those of a general practitioner who is competent in the field of their practice21. Therefore, PFT should ensure that all their medical care providers follow the set standards while attending to their patients so as to avoid cases of medical and clinical negligence. In the case of Bolam when he was admitted in a mental health institution Friern Hospital Management Committee where he was supposed to have a therapy. Prior to the procedure the medical care attendants did not administer any relaxant drugs or any restraints22. This led to Bolam acting violently which led to him suffering multiple injuries and fractures. The medical care providers had not warned Bolam of any risks involved with the procedure he was going to undertake. He sued the institution for medical negligence. The evidence provided by expert witnesses was against administering relaxants and restraining the patient. Justice McNair was against these expert witnesses because there was using of old tricks which were out-dated. Therefore, in Lynda’s Bolam principle would apply because the medical care providers did not carry out all the required tests and did not even provide Lynda with supplements that will help her and her son. The easiest way to establish negligence is to identify if there was a duty of care owed by the person suing. Setting the standard to follow in such a scenario is very hard because there must exist conflicting sides23. In the case Donoghue v Stevenson24 there were two ladies who went to a café to have a ginger beer which was served in an opaque bottle that meant that the contents were not visible. As they consumed beer from the glasses they noticed a decomposing snail. The lady who had purchased the beer sued the manufacturing company. The company objected to the law suit stating that there was no legal obligation to the consumer. The company stated that there was no contract between the consumer and the manufacturing company. The court had to decide if the objection was genuine. The court decided that the manufacturing company had a duty to those who consumed the company products. These are the same as those duties the help by individuals to others. When the principle of duty was identified in the case the court allowed the parties to settle the matter of court. Therefore, in the case of Lynda if the element of duty is identified that PFT had a duty of care where information given was to be relied on to make major decisions, the PFT will have to compensate Lynda for the loss he incurred. In another case, Bolitho v City and Hackney Health Authority [1998] AC 23225, the plaintiff suffered a brain damage while he was at the defendant’s hospital. The doctors were summoned when the plaintiff had a cardiac arrest but did not to him. Question B: Saviour Siblings There has been increased debate about whether savior siblings are a right thing to do. This has been argued from a legal and ethical perspective. There are those who argue for the idea of savior siblings and those who are against. Therefore, it is a matter of ethical theories and legal issues26. Legal perspectives In 1990’s there was no law governing against creation of savior siblings. Therefore, HFE act was to be amended to include a legislation regulating savior siblings27. Therefore, in 2006 the department of health reviewed the 1990 HFE Act and included a recommendation to allow creation of savior siblings. This was to allow creation of tissue match that will enable saving of an older sibling who is suffering from any life threating illness. The recommendation allowed umbilical cord blood to be used in treatment of the suffering sibling. In 2008 HFE Act upheld the recommendation and from 2009 the creation of savior siblings through PGD was legitimized. The Act states that donation of tissue does not involve donation of an organ. The idea of savior sibling has been legally accepted but one has to get a license from HFEA so as to have the process carried out to have that kind of treatment. The HFEA has the right to offer licenses and it is therefore, against the law to have a savior sibling without applying for a license. It is therefore, the body is charge with evaluating all the application and treating all the applications as different from all the rest28. Rights are things a human being is entitled to, which give the person the freedom to do something, as well as put others under an obligation or duty to treat a person in a certain manner, so as not to violate his or her rights. According to the ethical theory, there are two types of rights; positive and negative rights. Negative rights are when an entitlement is left free from any interference from others, while positive rights is where the entitlement is accompanied with something, or something is done in relation to that entitlement. However, these rights have limitation. Positive rights are limited by only a fair share of the available resources. The negative rights are limited by the equal rights of other persons to freedom. Ethical Perspective There are theories which help in medical practice and will be very helpful in the critical analysis of the statement. The theories include utilitarianism and deontology. The theories will provide a direction by which savior siblings should be based in the developing medical field. Ethics guide in decision making and situations where moral values are being tested. They also provide the guidelines and principles upon which medicine is conducted. Failure in ethics provides means that the field of health care provision will not be trusted by many people. Ethics is largely considered to be the ‘science of conduct’, whereby, what is right is based on the moral principle, the situation at the time, or even upon the individual. Utilitarianism The utilitarianism theory advocates for the action taken to benefit majority of the people involved. Therefore, savior sibling should be based on benefit it brings to the people involved with the action being taken. The theory advocates for positive consequences to be passed to the people around29. The actions taken should be seen to be right in the eyes of the people being affected. Therefore, savior sibling should be around if the benefits it brings will favor and bring happiness to the people involved. The savior sibling should not be treated as a means because it will not be bringing happiness to the people involved30. The end will be ultimate goal of the people advocating for savior siblings. This means that the savior sibling will be able to help save the life of another family who is suffering from a life endangering condition. Utilitarianism refers to a situation where the action taken is of benefit to the majority stakeholders or people, as being right. The consequences of an action taken should be more positive, and bring good to the people affected by the action, for it to be right31. Utilitarian moral position is normally demanding as it requires the party involved to shelve personal interests for the sake of the majority and the whole. It always demands for the most to be done so as to maximize utility, and not doing the minimum, as well as putting aside personal interests. This is because utilitarianism is never concerned with an individual, however much an individual counts, but with the good of the whole. According to the theory it is right to make a decision that will benefit the majority of the people involved. Therefore, it is right to have a savior sibling because it will help save a member of their family and end up bring happiness and joy to the entire family. The savior sibling will ensure that the entire family does not suffer and benefits from the decision and the action taken. The savior sibling means that the suffering sibling will not suffer death. Therefore, according to the ethics savior sibling is an end because they bring greater joy to the family by saving one of the family members and being part of the family. The end result is what brings greater joy to the family but not the means which was used to get there32. Deontology According to this theory people should not be used as a means to get to something but they should be treated as an end to themselves. Therefore, according to this theory savior siblings should not be treated as a means to save their suffering siblings but they should be an end. They should be respected as normal human beings and should not be used as tools. The theory focuses on morality and the willingness of the person acting on producing the savior sibling33. The deontology aims at the nature of the actions taken by the people involved. This means that the theory is not interested in the results that will be achieved. Therefore, looking at the willingness of the actor and the nature of the actions it will be appropriate to have savior siblings because the nature of the action is pure and aiming at saving a life of another child. The theory is against the savior siblings used as a means to save their siblings but they should be treated as normal children and should not be shown that they were born for a particular purpose. The reason behind this is that if the child is treated a s a means this can lead to stress and depression which can lead to self-destruction. The theory aims at having the right thing achieved; therefore, ethic behind this is that the duty should be performed in the best way possible. Deontology focuses on the ethics of duty, in that it shifts focus from consequences to the sense of duty when performing any action34. Kantian deontology judge morality by looking at the willingness of the actor, and the nature of the action, not the goals achieved in the end35. It also emphasizes respect for people, in that people should not be used or seen as merely as a means to something, but as an end. The reason for shifting from consequences to duties is that human beings cannot control the future, and that people are judged for actions within human control including what they will, not because of their outcome36. According to deontology ethics, pure reason is the basis for morality not utility, therefore, savior sibling might be a wrong thing according to deontology because the child is being used as a means in itself which is highly discouraged by the theory37. The reason behind this is that the theory aims at what is morally acceptable in the society, therefore, it savior siblings is a matter of what the society says about the process and the results achieved by the actions. The theory is therefore, against production of a child for the sake of saving another child because the theory recognizes autonomy of each and every individual. The theory is against using people to achieve the intended goals. The theory also works towards achieving the goals through the use of the rights means. Therefore, it would be against the ethics as portrayed in this theory because when in production of the savior sibling happens that the savior sibling is affected there is a likelihood of termination38. Life starts at conception and, therefore, termination will be murder even if it is murder for a good course. The theory is against any harm that should be caused to any human being. The goals of producing a savior siblings is to save the life of another child which makes it look as a mean rather than an end. The theory is against treating people as means to get to something, and advocates for people to be treated as and to themselves39. In conclusion, the savior siblings are an end to themselves because they are produced to produce happiness in a family and to save a life. They are therefore, a source of happiness to the families involved. The process of applying for the creation of a savior sibling should be made clear and easy because it will enable so many families to save the lives of their loved ones. References B, Bennett, B (2005). "Symbiotic relationships: Saviour siblings, family rights and biomedicine". Australian journal of family law 19 (3): 195–212. J, Herring, Medical Law and Ethics (4th edn, OUP 2012), Ch. 7, 394 JK. Mason and GT Laurie. Law and Medical Ethics (8th edn, OUP 2011), ch. 8, 251. LK, Crystal (2007). "'Saviour Siblings'? The Distinction between PGD with HLA Tissue Typing and Preimplantation HLA Tissue Typing". Journal of Bioethical Inquiry 4: 65 M, Brazier and E, Cave. Medicine, Patients and the Law. (Harmondsworth, Penguin Books 2007) 155–184. M, Spriggs and J, Savulescu. “Saviour siblings”. J Med Ethics2002;28:289. “‘Designer’” baby goes ahead”. The Age 12 March 2003 M. Spriggs and J. Savulescu, „Saviour siblings‟. 28  Journal of Medical Ethics (2002) 289 Samanta Mello and Foster Tingle. The role of clinical guidelines in medical negligence litigation: a shift from the Bolam standard? Med Law Rev. 2006;14(3):321–66 SD. Pattinson.  Medical Law and Ethics (2nd edn, Sweet & Maxwell 2009), ch. 12, 429   V, Chico. Saviour siblings: Trauma and Tort law, 14 Medical Law Review (2006) 180-218, 184-185 Read More