What types of medical negligence can occur? A doctor found guilty of criminal negligence is also likely to be subject to fitness to practice procedures by the General Medical Council. ‘It is not enough for a defendant to call a number of doctors to say that what he had done or not done was in accord with accepted clinical practice. ABSTRACT The nature of the relationship between the physician and the patient has clearly taken a defined position from the beginning of the profession itself. What should I know about nursing home negligence claims? Claim alleging negligence on the part of the police relating to their response to a 999 call made by the mother of a woman who later committed suicide. When bringing a medical negligence case before the courts, the claimant must prove that a health care practitioner failed in their duty of care in order to receive compensation. To be successful in a claim in negligence, certain elements must be satisfied. The definition of a ‘patient’ is interpreted broadly; a duty of care may exist between doctors and future patients,2 and even between medical ad… Civil considerations of negligence require doctors to act to an appropriate standard usually but not exclusively judged by the standard of their peers, whereas for criminal negligence the standard of practice has to result in serious harm from actions that could be considered to be incompetent or grossly negligent. A simple example is people driving cars on the road. Published by Oxford University Press on behalf of the British Journal of Anaesthesia. We would argue that there is an expectation that supervisors allow trainees to do work only that they believe them to be capable of doing. What Is Required to Prove Medical Negligence? A breach if that duty of care is established. Bolam v Friern Hospital Trust is the most well-known case in relation to this professional standard.5 It concerned a patient who sustained fractures during ECT treatment and who alleged that care under anaesthesia had been negligent in part because he had not been given muscle relaxation for the procedure, and had not been restrained or warned of the risks of fracture. This deterrent effect is somewhat reduced by a standard fee for professional indemnity for NHS-employed doctors unless the doctor is engaged in independent practice. The patient suffered a fatal cardiac arrest and the anaesthetist was convicted of manslaughter. However, here are some instances where your lawyer could convincingly argue that medical negligence occurred. As a direct result of that breach, legally recognized harm has been caused. What types of injury compensation claim do Gerard Malouf & Partners cover? In fact, all negligence cases hinge on the standards of care, the "reasonable person," and the defendant's duty of care. A healthcare provider, such as a GP or hospital, has a duty of care to patients. Similar to drivers, doctors and other medical professionals also owe a duty of care to their patients, to provide treatment that is in line with the “ medical standard of care,” which is usually defined as the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that … All parts of the test must be satisfied. Such a situation would apply to procedures performed on the wrong limb/side (e.g. What does duty of care mean? This duty of care can extend to nurses, assistants, lab technicians, and the care facility. Is communication a factor in a medical negligence case? Establishing that the Defendant owed you a duty of care is … Legally, this is known as a … Generally, the plaintiff needs to prove four elements: The medical personnel owed them a duty of care. How do I prove medical negligence has occurred? For example, diagnosing cancer too late may mean treatment is unable to stop the spread of the disease, with potentially fatal consequences. Patients often see their quality of life decrease and in worst-case scenarios negligence may lead to deaths. Medical negligence is a three-part test whereby a duty of professional care is owed to a patient and as a consequence of a breach of that duty, the patient suffers harm. Doctors owe a duty of care to their patient. Moreover, errors of judgement do not automatically amount to breaches of duty. To receive medical negligence compensation, the following must be proven: That you were owed a duty of care; There was a breach of duty of care Search for other works by this author on: Making amends: a consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS, Clinical Negligence Scheme for Trusts (CNST), Handling Clinical Negligence Claims in England, © The Author [2011]. However, the anaesthetist had not read this article and was not aware of its implications and so was found not to have breached their duty of care to the patient. So if the standard of care fell below reasonable standards, this is called a Breach of Duty. There are also more philosophical objectives of promoting accountability and ensuring that those at fault are deterred from future acts of carelessness by the need to pay compensation. While there are always risks when undergoing an operation or treatment, patients have a certain expectation of the level of care they should receive. Good record keeping and adherence to established practice guidelines are important as negligence cases may take many years to be resolved. Any medical care provider that provides direct treatment to the patient can be held responsible for negligence if the patient is harmed while in their care. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. Bolitho, however, is not universally applied and many judgements of negligence still rely on the principles of peer review outlined in Bolam, although the greater use of evidence-based medicine, and the extensive practice guidelines produced by bodies like NICE, now allows judges to have objective benchmarks of practice for comparison. In order to be successful in a Medical Negligence claim, you will need to overcome four hurdles: The Defendant owed you a duty of care; The Defendant breached that duty of care; The breach of duty caused an injury (Causation); and; The value of the negligence claim means that it is reasonable and proportionate to be pursued. Establishing causation can be difficult, as it must be demonstrated that ‘but for’ the doctor's action/inaction harm would not have occurred. Who can be at fault for a medical negligence claim? The law defines this as a duty to provide care that conforms to the standard reasonably expected of a competent doctor. Duty of Care. Once the appropriate standard of care is … Malfunctioning equipment could have serious ramifications for a patient, especially if it’s a life-saving device such as a pacemaker. It was argued that if a doctor acted in accordance with a practice that was considered acceptable by a responsible body of doctors that was sufficient and the claimant must show that no reasonable doctor acting in the same circumstances would have acted in that way. The relationship between a doctor and a patient is a special one. Daniele Bryden, FRCA LLB (Hons) MML, Ian Storey, LLB (Hons), Duty of care and medical negligence, Continuing Education in Anaesthesia Critical Care & Pain, Volume 11, Issue 4, August 2011, Pages 124–127, https://doi.org/10.1093/bjaceaccp/mkr016. The onus therefore is as much on the supervising department/consultant to reassure themselves of the trainee's abilities to do the case or procedure as it does for the trainee to consult (e.g. However, here are some instances where your lawyer could convincingly argue that medical negligence occurred. This refers to when a health care professional does not adequately warn you of the potential dangers or side effects of treatment or surgery. ‘The court must be vigilant to see whether the reasons given for putting a patient at risk are valid … or whether they stem from a residual adherence to out of date ideas’.6 Since the case of Bolitho, where a child with intermittent croup was not intubated by a paediatric registrar and subsequently suffered hypoxic brain injury from a respiratory arrest, it is possible for the court to decide that negligence has been proved even if a body of medical opinion suggests otherwise.7 In Bolitho, it was accepted that failure by the paediatric registrar to attend to the child during an earlier episode of croup was negligent. Oxford University Press is a department of the University of Oxford. Diagnostic failures: If your medical practitioner misdiagnoses you or fails to spot an injury or illness in time, this can be considered negligent. The First Element of a Medical Malpractice Claim. To discharge the legal duty of care, health care practitioners must act in accordance with the relevant standard of care. If your medical practitioner misdiagnoses you or fails to spot an injury or illness in time, this can be considered negligent. A simple mistake is unlikely to constitute such a breach. A doctor whose conduct falls below this standard of care can be said to have committed medical negligence (although additional elements must also be established before a malpractice claim can be made). There is an assumption, established in Nettleship v Weston where a learner driver lost control of a car, that there should be a public expectation of safety, and that doctors in training should be acting to the standard of the grade they are operating in.9 There are therefore no concessions for a lack of relevant experience, and a doctor in the first day of a new post is expected to work to the same standard of public safety as one who is on the last day of the post. The Department of Health estimates that 10% of hospital inpatient admissions result in an adverse event,1 but <2% of claims for medical negligence handled by the NHS Litigation Authority result in court action.2 However, both the number of claims for negligence and the sums involved in settlement are increasing and so it is important that anaesthetists understand the factors leading to a possible civil claim for negligence and the potentially considerably more serious charge of criminal negligence, both of which can arise from failures to uphold a suitable standard of care. An example of failure to obtain informed consent would be if the patient’s first language isn’t English and the hospital doesn’t bring in a translator to help communicate important information. R v Adomako concerned an anaesthetist who had failed to notice his patient was disconnected from the ventilator whilst the patient was undergoing an eye operation. The medical practitioner owns a duty of care in negligence to his patient and may also incur liability in battery in circumstances where he has afforded a treatment to his patient without his patients consent. A simple mistake is unlikely to constitute such a breach. The idea of hurt is an important consideration in establishing negligence, as the majority of tortious claims for medical negligence that do not succeed fail because they cannot establish that harm has occurred as a direct result of an act or a failure to act. Under the traditional rules of legal duty in negligence cases, a plaintiff must prove that the defendant's actions were the actual cause of the plaintiff's injury. The civil procedure rules in England and Wales allow for claims for medical negligence to be started within 3 years of the alleged negligence occurring or within 3 years of the victim becoming aware of possible negligence. The procedure therefore relies on establishing fault on the part of the doctor, hospital, etc. However, the House of Lords considered that either action was sufficient to uphold a conviction as consistent with a consideration that ‘the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal’.10 It is sobering to consider that anaesthesia—a specialty associated with a significant risk of death from inadequate actions—could meet such considerations of negligence in the way that other specialties may not. I think my GP has been negligent. If you’ve suffered a personal injury and feel that someone is responsible for causing that injury, to make a claim for medical negligence compensation against that person you need to establish that a duty of care was owed to you and that the duty of care was breached. It was concluded, however, that negligence could not be established, as evidence was provided that at the time it was not universal practice to administer muscle relaxation, as contrasting opinions existed as to the benefits of muscle relaxation balanced against the increased risks of the relaxant. This test comprises of foreseeability, proximity and fairness, justice and reasonableness of recognising such a duty. A monetary value will attach not just to actual expenses incurred (to include a loss of earnings) but additionally to the loss of amenity experienced and the pain and suffering endured in consequence of the injury. The standard of the ‘reasonable man’ or the famous ‘man on the Clapham omnibus’ who is said to be an ordinary person placed in the same circumstances is usually applied for most tort cases. Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry. Elements of a Medical Malpractice Claim – Duty of Care. However, where there has been a potential breach of professional duty, this is reinterpreted as that of the standard of comparable professional practice. All medical professionals must exercise reasonable skill when performing their duties in order to keep their patients safe from harm. The Bolam test is still frequently considered in cases of medical negligence, but it is not definitive, as subsequent cases have called in to doubt the idea that an acceptable standard of care is judged by doctors commenting on practice standards and that it may be part of the role of the court. You should also receive money to cover expenses relating to any past and present medical care required to help you cope with your injuries. How long after the fact can I make a medical negligence claim? 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