Issues Relating to Medical Negligence - Coursework Example

1) The factual scenario raises complex issues relating to medical negligence and the central issues are as follows The likelihood of succeeding against Doctor Green for a claim in medical negligence for misdiagnosis; 2) Doctor Green’s potential liability for failure to disclose the risks of paralysis to Charles and his parents; and 3) If Doctor Green is negligent, the extent to which Wellington Hospital will be liable for his misconduct. I shall consider each issue in turn in order to evaluate Tom and Fay’s legal position in any potential claim. In order to make a successful claim in negligence, Tom and Fay will have to establish that Doctor Green owed Charles a duty of care. In order to demonstrate this, the House of Lords confirmed in the case of Caparo Industries v Dickman1 the following three stage test to determine whether a duty of care exists: 1) Whether the consequence of the defendant’s actions were reasonably foreseeable; 2) Whether there was sufficient proximity to impose a duty of care; and 3) Whether it is fair, just and reasonable to impose a duty of care2. In applying the test, it must be established that it would be reasonable for Doctor Green to have foreseen that the damage to Charles would have been caused as a result of any negligence or misconduct and as such, should have taken precautions against this. If we apply this to the current scenario, it is evident that as a trained medic, Doctor Green would have foreseen that failure to take proper care in diagnosing and treating Charles would result in damage to Charles’ health. This appears to be further bolstered by claims by consultant Doctor Brown that Charles may have healed normally had he been correctly diagnosed and treated by Doctor Green. As regards the liability of Wellington Hospital, as soon as Charles entered Wellington Hospital as a patient, it had a duty of care towards him as a patient3. With regard to the proximity limb of the duty of care test, the case of Anns v Merton London Borough4 asserted that the proximity test relies on a consideration of the nature of the relationship between the parties. The courts will consider whether Charles was a member of a group to which a duty of care was owed5. Moreover, it has been established there is sufficient proximity between patient and doctor for there to be a duty of care6 and in light of the fact that the Charles became paralysed, it will clearly be fair and just to impose a duty of care on both Doctor Green and Wellington Hospital towards Charles. The fundamental issue is to determine whether Doctor Green was negligent and breached his duty of care to Charles and whether the breach caused Charles’ current predicament. The standard of care in medical negligence claims differs from that of “the reasonable and prudent man” test propounded in the case of Donoghue v Stevenson 7and Nettleship v Weston8 . The leading decision setting out the standard of care threshold in determining medical negligence was propounded in the case of Bolam v Friern HMC9which established the infamous “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”10. Accordingly, if the circumstances indicated that Dr Green worked within accepted medical practice, strictly speaking he will not be liable for negligence. For example, in the case of Maynard v West Midland Regional HA11, the House of Lords held that the defendants were not negligent as they had conformed to a practice, which was approved by one responsible body of medical opinion. Additionally, Otton LJ in the case of Defreitas v O’Brien 12asserted that “a minimum of two is needed to constitute a group for the purposes of the Bolam rule”13. Accordingly, if we apply this to the current scenario, Tom and Fay will have to establish that Doctor Green’s conduct did not fall within the ambit of accepted medical practice. Moreover, if two or more medical practitioners approve Doctor Green’s conduct, the case law indicates that this will operate against Tom and Fay in a potential claim for medical negligence against Doctor Green. However, the Bolam test has been criticised for acting as blanket immunity from medical negligence claims14. Accordingly, the case law has been developed to qualify the parameters of the Bolam test, which I shall now evaluate in context of Doctor Green’s legal liability. The first case to reject the argument that Bolam rendered medical negligence claims outside the parameters of judicial scrutiny was the case of Hills v Potter15. In this decision, Hirst J asserted that “I do not accept that by adopting the Bolam principle, the court in effect abdicates its power of decision to the doctors. In every case the court must be satisfied that the standard….. Upheld by a substantial body of medical opinion, and that this body of medical opinion is both respectable and responsible16”. When determining whether the practice is accepted and responsible, the courts will consider who has adopted the practice17. Accordingly, the more likely that Doctor Green’s practice is accepted by other medical practitioners, the more likely that his conduct will satisfy the Bolam test18. However, in the case of Bolitho v City of Hackney HA19, the courts held that medical practice could be rejected if “the court fully conscious of its own lack of medical knowledge and clinical experience led to views that no reasonable body of doctors could have held”20. In this case the House of Lords adopted a revised explanation of Bolam and emphasised that only a “responsible” body of 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 it21. Additionally, although the standard of a doctor or surgeon’s care is measured against their peers, if a significant body of fellow practitioners would have acted in the same way when faced with the same circumstances the Bolitho case has now asserted that “if one of a number of alternative methods of treatment was used even though it was supported by a body of medical practitioners, a finding of negligence may still result if the method of treatment did not stand up to logical analysis”22. If we apply this by analogy to the current scenario, Tom and Fay would have to demonstrate on the balance of probabilities that Doctor Green’s conduct was either not in accordance with accepted practice in line with a responsible body of opinion. Alternatively, if Doctor Green’s conduct was in line with an accepted responsible body of medical opinion then Tom and Fay would have to demonstrate that this opinion was such that no reasonably body doctors could have held such view upon logical analysis. If Tom and Fay can establish that Doctor Green breached the standard of care, the next issue is whether this caused Charles’ predicament, which requires a consideration of the loss of chance. In the case of Bolitho, it was held that the relevant consideration was to evaluate the patient’s condition “but for” the intervening act of medical negligence. This was evidenced in the case of Hotson v East Berkshire Area HA23 where the facts were analogous to the current scenario. The claimant was a 13 year old who fell out of a tree and mistakenly diagnosed in hospital. Five days later he was taken back to hospital in considerable pain and was diagnosed with necrosis. The defendant argued that the misdiagnosis had not affected the claimant’s injury. The defendant further argued that the claimant had a 25% chance of recovery but for the defendant’s negligence and as such, the claimant’s chances were based on the possibility of being one of 25 in a hundred who would make a recovery. The House of Lords agreed that this rationale in determining loss of chance was correct and as such, a claimant had to demonstrate that their chances of recovery would have been 50% or higher but for the negligence. Accordingly, Tom and Fay will have to establish that Charles would have had a 50% or higher chance of recovery but for Doctor Green’s misdiagnosis. Furthermore, a patient should not be exposed to a risk of damage unless he has agreed to run the risk and as such, they cannot be considered to have agreed to the risk if all the information was not provided. For example, doctors need to determine if the patient has capacity to make a competent decision and been informed of the risks and procedures of the treatment24. From an ethical viewpoint regarding consent to treatment, the General Medical Council’s ethics guidelines25 (the Guidelines) focus on the need for patient autonomy and highlights recommendations for informing patients at all stages of the treatment process. Accordingly, Doctor Green must have ensured that all options available had been communicated to and discussed regarding Charles’ treatment, including the risk of undergoing the proposed treatment and the risk of refusing treatment. The law as enshrined in the Guidelines26 further imposes a positive duty on doctors to give all relevant facts to a patient in comprehensible form. This includes a non-exhaustive guide including non-operative methods and non-treatment, a description of the expected outcome for each alternative procedure. It is vital therefore that Doctor Green should have given Charles and his parents proper information about the proposed treatment and in particular the risks entailed in order to observe the standards of a reasonable medical practitioner27. However, the Guidelines must also be considered in context of the common law. For example, in the case of Sidaway v Governors of Bethlem Royal Hospital Governors28, the House of Lords stated that doctors will normally not be held for a breach of duty, by failing to warn of risks provided other doctors’ would similarly not have warned of them29. In Sidaway the plaintiff was not informed of the risk of damage to their spinal cord and was left paralysed. Notwithstanding, the House of Lords held that the surgeon followed an approved practice of neurosurgeons in not disclosing the risk of damage to the spinal cord and therefore not liable. The Law Lords presiding all gave different reasons for their rationale. Lord Scarman commented “if the material risk were not disclosed, then the doctor would be negligent30” and that appropriate question was whether a reasonable person in the patient’s position would have regarded it as being sufficient. Lord Bridge stated that if a responsible body of practitioners would have accepted at the time that it was legitimate not to discuss the risk of paralysis, then the case would fail. Moreover, Lord Templeman suggests that there was an obvious risk of spinal injury due to the nature of the operation and as such, there was no need to explain the risks. If we apply this to the current scenario, the operation was to Charles’ lower back and therefore it would be difficult for Doctor Green to argue that the paralysis of his leg is an “obvious” risk inherent in the nature of the back operation in line with the Sidaway rationale. Accordingly, in light of the fact that the risk was known, Doctor Green will not be liable for failure to warn “if the body of experienced competent surgeons would not have warned the patient of the risk”31. Additionally, in the case of Wilsher v Essex 32it was asserted that the resulting damage had to fall within a range of responses likely to be caused by failure to warn of the material risk. This case also asserted that the burden of proof in medical negligence claims rests with the plaintiff. In summary, Tom and Fay will have the burden of proof of establishing that Doctor Green failed to act in accordance with a responsible body of medical opinion in failing to diagnose Charles’ condition. It is insufficient for Doctor Green to merely rely on the fact that other doctors would have done the same; the responsible body of opinion itself must withstand logical analysis in the circumstances. If negligence can be established, then Tom and Fay will have to establish that Charles’ paralysis would not have been caused but for Doctor Green’s failure to diagnose. Additionally, it will have to be demonstrated that Charles’ loss of chance is greater than 50% to succeed in a claim. With regard to the failure to warn of the risk, Tom and Fay would again have the burden of proving that the risk was a material risk and that other doctors would have warned of the risk. Additionally, the paralysis must be attributable to the failure to warn. If Doctor Green is liable, this exposes Wellington Hospital to liability. In a hospital environment, hospital authorities are required to guarantee that the emergency room doctors or any practicing physician has necessary skills to treat patients in the implementation of the Guidelines33. Moreover, it was asserted in the case of Djemal v Bexley Heath Health Authority34 that a hospital has duty to patients in ensuring the standard of care provided in medical treatment. Accordingly, if it is established that Doctor Green was negligent, it is highly likely that Wellington Hospital will be vicariously liable to Tom and Fay. 2) The court’s approach to standard of care in medical negligence cases differs to other negligence cases and the Bolam35 test defined the standard of care as being “of the ordinary skilled man exercising and professing to have that special skill, a man need not possess the highest expert skill36”. It is important to note that inexperience is irrelevant in determining the standard of care applicable. For example, in the case of Jones v Manchester Corporation 37it was stated that errors due to inexperience were no defence. However, in the case of Wilsher v Essex and Djemal v Bexley Heath Health Authority38, it was asserted that where experience is an issue, it is the duty of the relevant trust to ensure that a junior doctor is adequately supervised in administering medical treatment. Furthermore LJ Mustill stated that duty of care was determined by the “post occupied. As it must be recognised that different posts require different demands39” Additionally, in the case of Hunter v Handley40 it was acknowledged that scope for genuine differences in medical opinion had to be taken into account in considering the appropriate standard of care. In summary, in applying the Bolam standard of care, the relevant consideration is the post held by the doctor and their conduct will be considered in context of an approved body of medical opinion accordingly. Moreover, it is not necessary for the body of opinion to be unanimously accepted provided it satisfies the test of being a responsible body of opinion. The case of Bolitho further provides that the responsible body of opinion must objectively be reasonable in accordance with logical analysis. Notwithstanding the post and experience of the doctor, hospitals are under a positive duty to implement effective clinical governance procedures and ensure that the standard of care is met and adequately supervised. Bibliography Cases Anns v Merton London Borough [1978] AC 728 Bolam v Friern Hospital [1957] WLR 582 Bolitho v City Hackney HA [1997] 4 All ER 771 Caparo Industries v Dickman [1990] 1 All ER 568 Chappel v Hart (1988) 2 WLR 557 Defreitas v O’Brien [1995] 6 Med LR 128 Djemal v Bexley Heath Health Authority [1995] 6 Med LR 269 Hills v Potter [1984] 1 WLR 641 Hotson v East Berkshire Area HA [1987] 2 All ER 908 Hucks v Cole [1968] The Times 9 May CA Hunter v Handley [1955] SLT 213 Jones v Manchester Corporation [1952] 2 ALL ER 125 Maynard v Lindsey County Council [1935] 1 KB 516 Sidaway v Governors of Bethlem Royal Hospital Governors [1985] AC 87 Thake v Maurice [1986] QB 644 Wilsher v Essex AHA [1987] QB 730 Books Bailey, S.H., & Bowman, M.J., (2000). Public Authority Negligence Revisited Cambridge Law Journal Volume 85 132 M. Brazier., (2007). Medicine, Patients and the Law. 4th Edition Penguin Books. Hazelton, Liz. (2005). GMC Meets over Bogus Neurologist. Evening Telegraph. www.telegraph.co.uk John Hodgson & John Lewthwaite, “Tort Law” (2007). 2nd Edition, Oxford University Press. Emily Jackson (2006). Medical law: Text, Cases and Materials. Oxford University Press Whitting, Christian (2002).Physical Damage in Negligence. Cambridge University Press. Volume 61 189-208. General Medical Council Guidance on Good Practice: Seeking patient’s consent: The ethical considerations. Available at www.gmc-uk.org/guidance. Read More