CLINICAL NEGLIGENCE

1
CLINICAL NEGLIGENCE

• Professor Vivienne Harpwood

2
OUTLINE

• Brief summary of the basic law
• Focus on problem areas
• Analysis of the recent developments
• Case study Bolam and Bolitho cases
• The impact of NHS changes
• Analysis of case scenarios

3
THE LEGAL FRAMEWORK

• CLAIMANT MUST PROVE
• Duty of care owed
• Breach of duty
• Damage caused by that breach

4
Is there a duty of care?

• In most healthcare situations this has been
  established by precedent.
• If no precedent exists the court must decide

5
THE TEST FOR ESTABLISHING A NEW DUTY

• Foresight
• Proximity
• Is it fair just and reasonable to impose a duty?

6
JUDICIAL POLICY

• The use of the word policy indicates that the
  court must decide not simply whether there is or
  is not a duty, but whether there should or should
  not be one, taking into account both the
  established framework of the law and also the
  implications that a decision one way or the other
  may have for the operation of the law in our
  society. Winfield

7
POLICY CONSIDERATIONS

• Economic considerations
• Justice moral and ethical issues
• Practical implications
• Insurance
• Loss allocation
• Floodgates fear of too rapid an expansion
• Protection of classes of individuals

8
THE HUMAN RIGHTS ACT 1998

• It is unlawful for public bodies to act in a way
  which is incompatible with a Convention right.

9
THE HUMAN RIGHTS ACT

• Public Authorities must act in accordance with
  Convention rights
• Courts
• The Government
• The GMC
• NHS Trusts
• NICE and Healthcare Commission

10
CONVENTION RIGHTS AND MEDICAL LAW

• The right to life (Article 2)
• The prohibition of inhuman and degrading
  treatment and torture (Article 3)
• The right to liberty and security (Article 5)
• The right to a fair trial (Article 6)

11
CONVENTION RIGHTS (continued)

• The right to respect for privacy and family life
  (Article 8)
• The right to receive and impart information
  (Article 10)
• The right to marry and found a family (Article
  12)
• The right not to be discriminated against
  (Article 14)

12
IMPACT OF HRA ON CLINICAL NEGLIGENCE

• An end to blanket immunities for public
• authorities
• New routes for claiming damages Savage and
  Rabone cases

13
Article 6 of the Convention

• In determination of his civil rights and
  obligations, or of any criminal charge against
  him, everyone is entitled to a fair and public
  hearing within a reasonable time by an
  independent and impartial tribunal

14
DUTY OF CARE GREY AREAS

• Good Samaritan acts
• Members of an indeterminate class
• Wrongful life
• Police, ambulance and other emergency services
• Psychiatric injury secondary victims

15
GOOD SAMARITAN ACTS

• Doctors are increasingly reluctant to give
  medical assistance on aircraft for fear of being
  sued if things go wrong.
• 1000 incidents a week.
• There is a steady fall in the percentage of
  occasions when a doctor or healthcare
  professional responds to a crew announcement
  seeking a volunteer".
• (BMJ Report 2004)

16
BREACH OF DUTY 1

• General law of negligence the standard of care
  is that of the reasonable person
• Clinical negligence the standard of care is
  that of the reasonable healthcare professional at
  the same level and with the same qualifications

17
BREACH OF DUTY 2

• The Bolam Test/Defence
• A doctor is not guilty of negligence if he acted
  in accordance with a practice accepted as proper
  by a responsible body of medical opinion.A
  doctor is not negligent if he is acting in
  accordance with such a practice merely because
  there is a body of opinion that takes a contrary
  view

18
Later applications

• Whitehouse v Jordan 1980
• Maynard v West Midlands RHA 1984
• I have to say that a judges preference for one
  body of distinguished opinion over another also
  professionally distinguished is not sufficient to
  establish negligence

19
Criticisms of Bolam Test

• Too protective of doctors
• Judges not permitted to choose between competing
  expert views
• Responsible body not defined
• A sociological rather then a normative framework

20
CAUSATION

• The claimant must prove that the breach of duty
  caused or substantially contributed to the damage
  suffered.

21
Science and Law

• Scientific proof 95 probability
• Legal proof 51 probability a balance of
  probabilities

22
Causation in clinical negligence

• Patients often already sick
• Several different possible causes of illness
• Recollections of staff and patients seldom
  coincide
• Staff may be in conflict
• Medical records often incomplete
• Dependence on medical experts

23
Tests to establish causation

• But for test
• The chain of causation test
• Was there a novus actus interveniens?
• The material contribution test

24
Complex Cases

• Omissions
• Multiple defendants
• Consent
• Loss of a chance

25
Remoteness of damage

• The defendant is only liable for damage that is
  of a type which is reasonably foreseeable
• The courts define the extent of damage
• The thin skull rule

26
SOME QUESTIONS ABOUT BOLITHO

• What were the facts of the case?
• What were the issues for the court to decide?
• Whose evidence as to the facts (what had
  happened) did the trial judge prefer and why?
• Was there a breach of duty in this case?
• If so, what form would it have taken?
• What was the main issue on causation for the
  judge to decide?

27
Bolitho questions continued

• Could anything have been done short of intubation
  to avoid the injury to the child?
• How many expert witnesses were there and what
  were their fields of expertise?
• Which experts did the judge prefer and why?
• What was the claimants theory about what had
  happened?
• What was the defendants theory?

28
Bolitho continued

• What test had the trial judge applied to
  determine the standard of care?
• Did the Court of Appeal agree with the trial
  judge?
• Does the Bolam test or something like it apply to
  causation?
• What cases support the view that there might be
  negligence even if a body of opinion exists to
  support the defendant?

29
Bolitho continued

• What was the new/modified test laid down by the
  House of Lords?
• Has this new test made a difference in practice?

30
THE BOLITHO TEST

• The judge is permitted to choose between two
  conflicting expert opinions and can reject one of
  those opinions if it is not logically
  defensible.

31
BOLITHO CLINICAL GOVERNANCE

• Bleeps
• Systems
• Record keeping
• Medical back-up
• Court recognition of risks and benefits
• Application to law on consent Pearce v Bristol
  United HC Trust 1998

32
SOLUTIONS TO CLINICAL NEGLIGENCE PROBLEM

• The development of the Bolitho principle
• The use of guidelines to define standards
• Legal reforms
• Contributory negligence defence
• More radical solutions

33
The Compensation Act 2006

• 1 Deterrent effect of potential liability
• A court considering a claim in negligence or
  breach of statutory duty may, in determining
  whether the defendant should have taken
  particular steps to meet a standard of care
  (whether by taking precautions against a risk or
  otherwise), have regard to whether a requirement
  to take those steps might
• (a)prevent a desirable activity from being
  undertaken at all, to a particular extent or in a
  particular way, or
• (b)discourage persons from undertaking functions
  in connection with a desirable activity.

34
(Continued)

• 2 Apologies, offers of treatment or other
  redress
• An apology, an offer of treatment or other
  redress, shall not of itself amount to an
  admission of negligence or breach of statutory
  duty.

35
Can Guidelines set the standard?

• Definitional problems
• Too many guidelines
• Conflicting guidance
• Difficult to establish place in hierarchy
• Objections from medical profession
• Difficult to enforce

36
CLINICAL GOVERNANCE

• A framework through which NHS bodies are
  accountable for continuously improving the
  quality of their services and safeguarding high
  standards of care, by creating an environment in
  which excellence in clinical care will flourish
• A first class service Quality in the New NHS

37
MAIN REQUIREMENTS

• Clear lines of accountability
• Implementation of comprehensive programmes to
  improve quality using evidence-based guidelines,
  compulsory audit and monitoring
• Establishing risk management policies to identify
  and remedy poor performance

38
THE NATIONAL INSTITUTE FOR HEALTH AND CLINICAL
EXCELLENCE

• THREE MAIN FUNCTIONS
• Appraises and develops new and existing
  technologies
• Commissions and disseminates clinical guidelines
• Promotes clinical audit and Confidential Inquiries

39
NICE Guidelines

• Official status close to the top of the hierarchy
• Disseminated throughout the NHS
• Must be implemented
• Will be monitored regularly by the Healthcare
  Commission
• Will provide a normative basis to measure the
  standard of care in negligence cases

40
Experts views

• If guidelines have been produced by a respected
  body and have been accepted by a large part of
  the profession, a doctor would have to have
  strong reasons for not following that guidance
• Dr Graham Burt of the MDU 1993

41
Scottish Office Advice

• With the increasing use of guidelines in
  clinical practice, they will probably be used to
  an increasing extent to resolve questions of
  liability. Those who draft, use and monitor
  guidelines should be aware of these legal
  implications.
• (1995)

42
OFFICIAL VIEW

• Nice guidelines are likely to constitute a
  responsible body of medical opinion for the
  purposes of litigation
• Doctors are advised to record their reasons for
  deviating from guidelines- Sir Michael Rawlins
• A deviation may not be regarded as logically
  defensible

43
Sir Michael Rawlins 2003

• I always urge doctors when they depart from a
  NICE guideline to record in the patients notes
  at the time why they did so, because there is a
  general legal view that NICE guidelines will
  replace the Bolam test in medical negligence
• MedEconomics 2003

44
A FINAL THOUGHT

• There are very few professional men who will
  assert that they have never fallen below the high
  standards rightly expected of them. That they
  have never been negligent..What distinguishes Mr
  Jordan from his professional colleagues is not
  that on one isolated occasion his knowledge and
  skill deserted him, but that damage resulted
• Lord Donaldson in Whitehouse v Jordan.