Medicine and the Law - Lectures 5:6 - Medical Malfeasance PDF

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Summary

Lecture brings concept of the tort of negligence into medicine - discussing how it is utilised specifically for medical malfeasance. Taught predominantly by Dr. Adam Slavny....

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Lectures 5/6 - Medical Malfeasance - Is the negligence system best fit to handle these scenarios? - Why liability for negligence?: • General law of tort applies to all • Encourages practitioners and the system to learn from mistakes - does it really deter mistakes? are professionals more likely to respond to discipline in the workplace?

• Alerts health management to problem areas • Allows for the vindication of a patient’s rights - ‘level’ playing field which can allow patients to vindicate their rights (the professional isn’t considered as more important than the claimant)

• Provides different formats of compensation

- Issues? • Resource allocation may be skewed - allocating money for litigation and compensating patients may be

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wrong given that it can actually be used to further benefit the health care service (a waste of money?) Threat of litigation may deter innovation and only encourages established methods Promotes defensive medicine Wastes time and is stressful for medical practitioners Encourages secrecy and hiding mistakes? Alternatives? • Litigation is slow, shifts money from healthcare to lawyers, only normally compensates in damages and encourages secrecy rather than openness • What do claimants want? - Apology - Explanation - Assurance that doctor will not repeat error - Remedial treatment - Speed in dealing with complaint - Compensation

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- NHS Redress Act 2006: • NOT IMPLEMENTED IN ENGLAND, ONLY WALES • Claims limited to £20,000 • Claims may be instigated by the NHS rather than the complainant • Belief that addressing errors will reduce costs of liability in the long term • Optional for the claimant • Package approach to remedies - Compensation - Apology - etc. - Limits of a claim: • Adults - 3 years from incident/knowledge of incident/death • Children - 21st Birthday • Under a mental disability - unlimited • Or using the court’s discretion under s33 of the Limitation Act 1980 - Claim mechanism: • Duty of Care: 1. When a patient registers with a GP and consults with him/her as of the NHS (General Medical Services) Regulations 1992 2. Duty to visitors to practice area needing treatment (NHS contract) 3. Where hospital holds itself out as treating emergencies (Barnett v Chelsea and Kensington Hospital) 4. Institutional duty to provide medical services - “The hospital selected the surgeons and nurses who looked after him. If those surgeons and nurses did not treat him with proper care and skill then the hospital must answer for it” (Cassidy v Ministry of Health)

- In other words, IT DOES NOT MATTER whether the staff at the hospital are technically

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employees or mere independent contractors • Is there a medical duty of rescue? - Common law - no duty to rescue —> But given medical claims are based in negligence, which are meant to apply to everyone equally, surely the same doctrine must be utilised in this area in the interest of consistency - But, GMC Code of Good Medical Practice: must offer help if emergencies arise in clinical settings or in the community, taking account of your own safety, your competence and the availability of other options for care - Kent v Griffiths: Found that there is a duty of rescue for ambulances reaching certain areas in time (without an excuse) - particularly if the service answers a call with clear notice of serious emergency, in this instance they also promised that an ambulance was on the way preventing the claimant from seeking other methods of help • Capital and Counties PLC v Hants CC: if a doctor volunteers his help, then his only duty is to not make the patient’s situation worse • Duties to third parties? - Goodwill v BPAS: No duty to third party Standard of Care: - Objectively tested against the reasonable man in the same profession as of Wilsher v Essex AHA. This includes for junior doctors and trainees. • But, it’s possible to call for assistance to alleviate liability - Bolam v Friern: Required to show that actions are supported by a reasonable body of professional medical opinion, to show they met the standard - Bolitho v City and Hackney: Possible to override Bolam test if courts can prove that body of professional opinion had absolutely no grounds of logical basis - will only be true of rare cases • The practice followed/body of opinion must belong to a school; it cannot be a mere whim (Hucks v Cole) • Issue that other members of medical community may be bias and will want to protect other individuals in the same profession. • Bolam appears to allow the medical industry to be self-regulated • Also deters medical innovation because the test is satisfied when an action is supported by professional opinion, so they will only stick to treatments that they know other professionals will also agree with. - Saatchi Bill is method to change this issue • Maynard v West Midlands : dismissal of opinion based on fact that it was less convincing than contradicting opinion cannot occur - shouldn’t have been dismissed

- Standards always changing: Roe v Ministry of Health: doctor’s standards are to be taken at the time of the procedure

• Causation: - But for test - Wilsher v Essex AHA - Loss of a Chance • Gregg v Scott; Hotson v East Berkshire - given negligence is grounded in the balance of

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probability burden of proof - unless the original chance of recovery was above 50% before the loss of this chance occurred, no claim can be made for harm Patient has burden of proof • • Potential issue that defendants won’t have caused the harm at all and will still be liable for the harm • Issue that medical professionals can treat patients with a less than 50% chance any way they want (negligently) causing loss of a chance whilst knowing that they cannot be liable in any way. • Better alternative to be to compensate for the total percentage loss of chance? Res ipsa loquitur - sometimes the thing speaks for itself, in other words it is clear that the individual caused the breach Group Liability, Material cause: Group Liability, Multiple causes:

• Fairchild v Glenhaven - Joint and several liability, if multiple parties each materially contributed

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to the risk of harm, then all of them can be found liable (rectified in Compensation Act 2006, s3) Difference between cases involving a single noxious agent and multiple noxious agents (i.e. if one • was asbestos and another was carbon particulates) as of Barker v Corus • Fairchild restricted doctrine to asbestos cases but Compensation Act made this for all situations Remoteness of Damage - The Wagon Mound (No. 2) test of reasonable foreseeability

- Goal is to return individual to state they were in before the negligence had occurred - Remedies can be found in damages (e.g. pain and suffering and loss of amenity), past expenses and losses, future expenses and losses

- Bolam v Friern points/development: • Thought that Bolam is too paternalistic and convenient for doctors (doctor does not have to educate patient)

• How is a ‘material risk’ to be defined as? a percentage? • In relation to informed consent: - Bolam - doctors determine what must be disclosed and their risk - But considering parameters of consent: free voluntary decision, made by person with capacity. •

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Capacity is concerned with weighing information and arguments on the basis of full information does Bolam completely undermine this principle? US approach - Canterbury v Spence: Duty to inform not determined by current practice - ‘Respect for the patient’s right of self determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves” Sidaway v Bethlem - Argued that US approach is not practical - ignores realities of doctor/patient relationship - Doctor cannot set out to educate the patient to his own standard of medical knowledge - Court should have benefit of expert opinion as to what information should be communicated to the patient - approving Bolam test Gold v Haringey - Bolam test applied - some doctors would not discuss the comparative safety of vasectomy to female sterilisation, no deviation from accepted medical practice. - Query as to what would prudent patients have wanted? - Clear example of courts sidestepping opportunity to prescribe standards for medicine Bolitho - HOL: “The judge, before accepting a body of opinion as being reasonable, responsible or respectable, will need to be satisfied that the experts have directed their minds to the questions of comparative risks and benefits and have reached a defensible conclusion on the matter” - Meaning it’s possible for courts to reject Bolam test if they believe the opinion isn’t defensible Pearce v United Bristol - If there’s a significant risk that can effect the judgement of Chester v Afshar - Failure to warn of particular risk (1-2%) paralysis - C would have delayed procedure to seek further advice if she knew the risk but the surgery was performed appropriately - Trial judge ruled that a breach of duty had occurred because the risk would have been the same regardless of when the operation had occurred (i.e. even if she had delayed it) - Policy decision - need to underline doctor’s duty to inform patients about risks and vindicate patient’s rights Montgomery v Lanarkshire - Doctor underestimated foetus’ weight (non-negligently) and M queried whether she could deliver the large baby, obstetrician did not warm her of specific risk or discuss caesarean option. Baby born with brain damage - Trial judge (Scotland) followed Bolam and found no negligence

- Appeal Court (Scotland) upheld this decision. Risk was less than 1% so wasn’t a significant risk which would have affected the judgement of a reasonable patient

- Supreme Court (UK) allowed the appeal - doctor had a duty to disclose the risk, significant risks -

which must be disclosed would include risks to the baby and risk of problematic delivery and surgical intervention given the situation Resulting in fact that a breach of duty relating to disclosure of risk is no longer to be determined by the Bolam test. Montgomery standard must be adhered to...