Common law applied in Medical Common law applied in Medical Negligence:Negligence:

Duty of care/ Standard of Care Duty of care/ Standard of Care

Katarzyna Gromek BrocKatarzyna Gromek Broc

University of YorkUniversity of York

Responsibility versus LiabilityResponsibility versus Liability

What happens if a patient is harmed What happens if a patient is harmed or suffered adverse impact of a or suffered adverse impact of a treatment received in hospital or treatment received in hospital or provided by doctor?provided by doctor?

Who is to blame?Who is to blame? Before we can raise liability we need Before we can raise liability we need

to establish responsibilityto establish responsibility Could we establish responsibility? Could we establish responsibility?

Whose fault was it?Whose fault was it?

Responsibility in medical Responsibility in medical negligencenegligence

In medical negligence cases it is In medical negligence cases it is sometimes difficult to demonstrate sometimes difficult to demonstrate that the harm was caused by the that the harm was caused by the health professional's conduct since health professional's conduct since there might be a variety of possible there might be a variety of possible explanations of an adverse impact of explanations of an adverse impact of treatment due to the complexity and treatment due to the complexity and inexactitude of medicine. inexactitude of medicine.

Responsibility versus liabilityResponsibility versus liability

Difficulties in medical negligence cases to Difficulties in medical negligence cases to establish responsibilityestablish responsibility

Why?Why? multiplicity of factors could cause injuries or multiplicity of factors could cause injuries or

where for example, the doctor failed to attend the where for example, the doctor failed to attend the patient. patient.

progression of illnessprogression of illness “ “unknowns” in medicine that expertise cannot unknowns” in medicine that expertise cannot

reveal.reveal. The drugs could have so far unknown side effects The drugs could have so far unknown side effects there is more than one agent at work.there is more than one agent at work.

Medical MalpracticeMedical Malpractice OverviewOverview Overall patients are satisfied with the National Overall patients are satisfied with the National

Health System (NHS): 90 percent of patients are Health System (NHS): 90 percent of patients are happy with treatment they received.happy with treatment they received.

However, incidents and errors happenHowever, incidents and errors happen Each year around 400 people die or suffer serious Each year around 400 people die or suffer serious

injuries as a result of treatment in hospital. injuries as a result of treatment in hospital. Available data indicate that 11 per cent of patients Available data indicate that 11 per cent of patients in hospital experienced adverse impact of in hospital experienced adverse impact of treatment, of which over a half were preventable of treatment, of which over a half were preventable of ordinary standards if care were respected.ordinary standards if care were respected.

In 2004, 44 percent of NHS staff reported In 2004, 44 percent of NHS staff reported witnessing an error or near error witnessing an error or near error

What are the legal consequences of the What are the legal consequences of the situation where a person has suffered harm situation where a person has suffered harm through treatment provided by a health through treatment provided by a health professional?professional?

Medical MalpracticeMedical Malpractice

What can patient do?What can patient do? Actions available to themActions available to them Civil Action in tort of negligence: Civil Action in tort of negligence:

action for damagesaction for damages Disciplinary proceeding but no Disciplinary proceeding but no

compensationcompensation Criminal Action for gross misconduct, Criminal Action for gross misconduct,

manslaughtermanslaughter

Civil Action for damages in the tort Civil Action for damages in the tort of negligenceof negligence

We need to clarify a certain number of We need to clarify a certain number of points. points.

For example, For example, Who is responsible?Who is responsible? in which situations liability may arise?in which situations liability may arise? is liability contractual or not, is liability contractual or not, what is negligent care, what standard of what is negligent care, what standard of

care is expected from the physician? what is care is expected from the physician? what is the criterion for professional negligence? the criterion for professional negligence?

did a duty of care exist or not? did a duty of care exist or not?

Action for damages in tort of Action for damages in tort of negligencenegligence

In order to be successful the claimant In order to be successful the claimant must be able to demonstrate three things. must be able to demonstrate three things.

First, that the health professional owed First, that the health professional owed him a duty of care.him a duty of care.

Secondly, that the health professional Secondly, that the health professional breached the duty of care (also when care breached the duty of care (also when care was not of appropriate standard). was not of appropriate standard).

Thirdly, that the claimant must prove Thirdly, that the claimant must prove causation namely that he suffered harm causation namely that he suffered harm caused by breach. caused by breach.

A) Duty of CareA) Duty of Care

Who should bear the duty of care?Who should bear the duty of care? Why is it so important to establish Why is it so important to establish

that the duty of care existed?that the duty of care existed? When does it start?When does it start?

Duty of care Duty of care

In English law, unlikely in civil law In English law, unlikely in civil law countries, there is no 'Samaritan' duty countries, there is no 'Samaritan' duty of care. In systems based on of care. In systems based on codification, the codes impose the codification, the codes impose the obligation of assistance not only for obligation of assistance not only for medical practitioners and supporting medical practitioners and supporting staff but also on every individual who staff but also on every individual who has a duty to rescue and provide has a duty to rescue and provide assistance for the person in peril. assistance for the person in peril. Abstaining from providing aid is Abstaining from providing aid is punishable in criminal law.punishable in criminal law.

A) Duty of careA) Duty of care In English law, the relationship between two In English law, the relationship between two

strangers could not impose liability since it would strangers could not impose liability since it would be considered by the courts as not sufficiently be considered by the courts as not sufficiently 'proximate' and non 'just and reasonable' for 'proximate' and non 'just and reasonable' for liability to arise.liability to arise.

English common law does not impose the duty to English common law does not impose the duty to rescue of a stranger, "however grave the rescue of a stranger, "however grave the emergency and regardless of how easy it would emergency and regardless of how easy it would be to render effective help".be to render effective help".

It is generally well accepted that there is no duty It is generally well accepted that there is no duty on a health practitioner to treat unless the person on a health practitioner to treat unless the person to be treated is already their patient or they do so to be treated is already their patient or they do so at their will.at their will.

A) Duty of careA) Duty of care

Stuart-Smith LJ said in Stuart-Smith LJ said in Capital and Capital and Counties plc v Hampshire County Counties plc v Hampshire County CouncilCouncil, “the mere physical proximity , “the mere physical proximity between a doctor and a sick person, between a doctor and a sick person, of itself creates no duty to treat.“of itself creates no duty to treat.“

Thus, by analogy, the doctor does Thus, by analogy, the doctor does not owe a duty of care to a patient not owe a duty of care to a patient who falls ill in a public place in the who falls ill in a public place in the presence of a doctor.presence of a doctor.

Duty of CareDuty of Care Contrary, the law seems to “punish'“ a doctor who Contrary, the law seems to “punish'“ a doctor who

tries to help a stranger and involuntarily tries to help a stranger and involuntarily aggravates his or her condition. From the moment aggravates his or her condition. From the moment he intervenes, “he is under duty not to make the he intervenes, “he is under duty not to make the victim's condition worse“. Since liability arises for victim's condition worse“. Since liability arises for providing improper or inadequate care.providing improper or inadequate care.

The law recognises the doctor-patient relationship, The law recognises the doctor-patient relationship, giving rise to duty of care from the moment the giving rise to duty of care from the moment the doctor started treating a stranger. In doctor started treating a stranger. In Horsley v. Horsley v. McLarenMcLaren it was decided that "once a doctor begins it was decided that "once a doctor begins treatment he must do all he reasonably can to treatment he must do all he reasonably can to save the rescue, who is now his patient".save the rescue, who is now his patient".

Duty of careDuty of care A duty of care is owed by a general practitioner to a A duty of care is owed by a general practitioner to a

patient who is registered with him/her and has patient who is registered with him/her and has consulted him/her on the relevant issue. A general consulted him/her on the relevant issue. A general practitioner does not have an obligation to find out by practitioner does not have an obligation to find out by himself and visit a patient unless he is aware of the himself and visit a patient unless he is aware of the condition or the patient is over 70, or in special needs.condition or the patient is over 70, or in special needs.

In emergency situations, general practitioners, but not In emergency situations, general practitioners, but not other consultants, have a statutory duty to treat other consultants, have a statutory duty to treat anyone who is in immediate need in their geographical anyone who is in immediate need in their geographical practice area.practice area.

In the hospital treatment the duty of care is owed once In the hospital treatment the duty of care is owed once a patient has been admitted to the hospital. a patient has been admitted to the hospital.

In the emergency circumstances, the duty arises when In the emergency circumstances, the duty arises when the patient presents himself at the emergency unit the patient presents himself at the emergency unit even before he consulted a doctor. even before he consulted a doctor.

Duty of care: emergency servicesDuty of care: emergency services

Before 2001, there was no duty of care Before 2001, there was no duty of care imposed on emergency services such as imposed on emergency services such as ambulance, police, fire fighters or ambulance, police, fire fighters or coastguards. Howarth commented: “this is coastguards. Howarth commented: “this is the extraordinary rule... that the public rescue the extraordinary rule... that the public rescue services have no duty to rescue anyone”.services have no duty to rescue anyone”.

In the 2001 In the 2001 KentKent decision, this duty was decision, this duty was extended to require ambulance services to extended to require ambulance services to respond on the 999 call within a reasonable respond on the 999 call within a reasonable time.time. Kent v GriffithsKent v Griffiths [2000] 2All ER 474 (CA) [2000] 2All ER 474 (CA)

A) Duty of careA) Duty of care

Barnett v Chelsea.Barnett v Chelsea. Three night watchmen Three night watchmen presented themselves at a casualty presented themselves at a casualty department complaining that they had been department complaining that they had been vomiting after drinking tea at work. The vomiting after drinking tea at work. The nurse informed the casualty doctor by nurse informed the casualty doctor by telephone about the symptoms. The telephone about the symptoms. The casualty doctor, unwell himself, instructed casualty doctor, unwell himself, instructed her on the phone to tell the men to go home her on the phone to tell the men to go home and to see their general practitioners. He and to see their general practitioners. He did not personally examine them. did not personally examine them. Barnett v Chelsea and Kensington Hospital Barnett v Chelsea and Kensington Hospital Management CommitteeManagement Committee [1969] 1 QB 428 [1969] 1 QB 428

Duty of care: Duty of care: Barnett ChelseaBarnett Chelsea The main question in this case concerned the The main question in this case concerned the

relationship between the three men and the hospital relationship between the three men and the hospital staff. The Court found that a duty of care existed and staff. The Court found that a duty of care existed and was breached by the failure of a doctor to attend the was breached by the failure of a doctor to attend the patients and to make a proper diagnosis. patients and to make a proper diagnosis.

Nield J held “In my judgment, there was here such a Nield J held “In my judgment, there was here such a close and direct relationship between the hospital close and direct relationship between the hospital and the watchmen that there was imposed upon the and the watchmen that there was imposed upon the hospital a duty of care which they owned to the hospital a duty of care which they owned to the watchmen. Thus I have no doubt that nurse Corbett watchmen. Thus I have no doubt that nurse Corbett and the medical casualty officer were under the duty and the medical casualty officer were under the duty to the deceased to exercise that skill and care which to the deceased to exercise that skill and care which is to be expected of persons in such positions acting is to be expected of persons in such positions acting reasonably.” reasonably.”

Duty of care (acceptable standard Duty of care (acceptable standard of care)of care)

Liability arises not only when the doctor fails Liability arises not only when the doctor fails to attend his patient but also in relation to the to attend his patient but also in relation to the quality and suitability of treatment. quality and suitability of treatment.

But how does the law set up the But how does the law set up the boundaries of what is an acceptable boundaries of what is an acceptable standard of care? standard of care?

In In WilsherWilsher, an inexperienced, junior doctor , an inexperienced, junior doctor inserted by mistake a catheter into a vein inserted by mistake a catheter into a vein rather than an artery to an infant. The Court rather than an artery to an infant. The Court of Appeal held that Health Authority is under of Appeal held that Health Authority is under obligation to provide skilled treatment and obligation to provide skilled treatment and financial stringency under which hospital financial stringency under which hospital operates provided no defence to an action in operates provided no defence to an action in negligence negligence

A) Duty of care/Standard of careA) Duty of care/Standard of care

in in Bull v Devon AHABull v Devon AHA on what is to be on what is to be expected as a reasonable standard of care.expected as a reasonable standard of care.

Mrs Bull gave birth to a disabled child that Mrs Bull gave birth to a disabled child that was due to the asphyxia caused by the delay was due to the asphyxia caused by the delay during the delivery because a doctor was not during the delivery because a doctor was not available to attend her. The hospital had available to attend her. The hospital had maintained services on two sites and the maintained services on two sites and the system for summoning doctors had broken system for summoning doctors had broken down. The Court of Appeal decided that the down. The Court of Appeal decided that the system failed to provide her an acceptable system failed to provide her an acceptable standard of care. standard of care. Bull v Devon AHABull v Devon AHA [1993] 4 Med LR 117 (CA) [1993] 4 Med LR 117 (CA)

Standard of care/ DevelopmentsStandard of care/ Developments

The House of Lords’ decision in The House of Lords’ decision in Chester v Chester v Afshar,Afshar, a failure to inform the patient of the a failure to inform the patient of the possible adverse consequences of surgery, possible adverse consequences of surgery, gave rise to liability.gave rise to liability.

Miss Chester suffered lower back pain. She Miss Chester suffered lower back pain. She was referred to Dr Afshar, a neurological was referred to Dr Afshar, a neurological specialist who did not inform her about the specialist who did not inform her about the risk of the operation: ‘had Miss Chester risk of the operation: ‘had Miss Chester been warned, it was a duty of the doctor to been warned, it was a duty of the doctor to warn her’. Therefore, the doctor would not warn her’. Therefore, the doctor would not perform up to acceptable standard if he did perform up to acceptable standard if he did not warn the patients about possible risks. not warn the patients about possible risks. Chester v AfsharChester v Afshar [2004] 4 AA E.R. 587 [2004] 4 AA E.R. 587

B) Breach of duty of careB) Breach of duty of care

if the health practitioner (doctor, if the health practitioner (doctor, hospital) failed to provide duty of hospital) failed to provide duty of carecare

if the care provided was not if the care provided was not appropriate standardappropriate standard

But how do we assess appropriate But how do we assess appropriate standard?standard?

Assessing Standard of careAssessing Standard of care The leading case providing a test on what The leading case providing a test on what

is the appropriate standard of care is the is the appropriate standard of care is the House of Lords decision in House of Lords decision in BolamBolam..

Mr Bolam had some mental health Mr Bolam had some mental health problems and his doctor subjected him to problems and his doctor subjected him to electro-convulsive therapy without electro-convulsive therapy without administering him a relaxant drug and administering him a relaxant drug and without restraining his movement. As a without restraining his movement. As a consequence Mr Bolam suffered a fractured consequence Mr Bolam suffered a fractured hip and some other minor injuries. He hip and some other minor injuries. He claimed that the hospital was vicariously claimed that the hospital was vicariously liable for the carelessness of its doctor liable for the carelessness of its doctor Bolam v Friern HMCBolam v Friern HMC (1957] 2All ER, 118 (1957] 2All ER, 118

Assessing Standard, Assessing Standard, BolamBolam test test McNair J in McNair J in BolamBolam considered that a person considered that a person

falls below the appropriate standard, and is falls below the appropriate standard, and is negligent, if a person fails to do what a negligent, if a person fails to do what a 'reasonable' person would have done in the 'reasonable' person would have done in the similar circumstances.“similar circumstances.“

““The test is the standard of the ordinary skilled The test is the standard of the ordinary skilled man exercising and professing to have that man exercising and professing to have that special skill. A man need not to possess the special skill. A man need not to possess the highest expert skill at the risk of being found highest expert skill at the risk of being found negligent. It is a well-established law that it is negligent. It is a well-established law that it is sufficient if he exercises the ordinary skill of an sufficient if he exercises the ordinary skill of an ordinary man exercising that particular art" ordinary man exercising that particular art"

Assessing StandardAssessing Standard

One of the important findings in One of the important findings in BolamBolam is is that it is not up to a judge to decide what that it is not up to a judge to decide what appropriate standard of care is but it is up appropriate standard of care is but it is up to the expert professional body to the expert professional body

'a judge is not in the position to choose 'a judge is not in the position to choose between the views of competing medical between the views of competing medical expert opinions. As long as there is a expert opinions. As long as there is a competent school of thought that believed competent school of thought that believed the defendant's actions were reasonable the the defendant's actions were reasonable the judge will find the defendant had not been judge will find the defendant had not been negligent.” negligent.”

Assessing StandardAssessing Standard

The The BolamBolam test is standard-reflecting and test is standard-reflecting and not standard-setting: it reflects only the not standard-setting: it reflects only the standard of current practice.standard of current practice.

The professions can sometimes develop The professions can sometimes develop unreasonable practices. Some practices unreasonable practices. Some practices may develop in professions, not because may develop in professions, not because they serve the interest of the clients, but they serve the interest of the clients, but because they protect the interests and because they protect the interests and convenience of members of the profession convenience of members of the profession

Assessing StandardAssessing Standard Change of the windChange of the wind the the BolamBolam test was challenged in the test was challenged in the BolithoBolitho

decision decision The facts concern a two year old boy admitted to The facts concern a two year old boy admitted to

hospital with respiratory problems. The boy hospital with respiratory problems. The boy suffered two acute respiratory attacks while in suffered two acute respiratory attacks while in hospital but the doctor did not attend him. The boy hospital but the doctor did not attend him. The boy however recovered. The third time, child collapsed however recovered. The third time, child collapsed with a failure of his respiratory system that led to a with a failure of his respiratory system that led to a cardiac arrest. As a consequence he suffered a cardiac arrest. As a consequence he suffered a severe brain damage. The child died shortly after. severe brain damage. The child died shortly after. Bolitho v City & Hackney Health AuthorityBolitho v City & Hackney Health Authority [1998] [1998] AC 232AC 232

Assessing Standard: BolithoAssessing Standard: Bolitho Lord Browne-Wilkinson held Lord Browne-Wilkinson held "the court has to be satisfied that the "the court has to be satisfied that the

opponents view of the body of opinion has 'opponents view of the body of opinion has 'a a logical basislogical basis’. In particular in cases ’. In particular in cases involving, as they so often do the weighing up involving, as they so often do the weighing up of risks against benefits, the judge before of risks against benefits, the judge before accepting a body of opinion as being accepting a body of opinion as being responsible, reasonable and responsible, reasonable and respectablerespectable, will need to be satisfied that, in , will need to be satisfied that, in forming their views, the experts have forming their views, the experts have directed their minds to the question of directed their minds to the question of comparable risks and benefits and have comparable risks and benefits and have reached a defensible conclusion in this matter reached a defensible conclusion in this matter

C) Proving causation in medical C) Proving causation in medical negligence casesnegligence cases

In the civil action for damages, the In the civil action for damages, the patient adversely affected by patient adversely affected by treatment not only has to treatment not only has to demonstrate the existence of a duty demonstrate the existence of a duty of care, the breach of this duty and of care, the breach of this duty and the negligence of the health the negligence of the health professional but also a direct link professional but also a direct link between the negligence and his/her between the negligence and his/her injury. injury.

C) Proving causationC) Proving causation English law uses the well known “but for” test to English law uses the well known “but for” test to

demonstrate factual causation. The claimant needs demonstrate factual causation. The claimant needs to show that 'but for' the doctor's negligence he to show that 'but for' the doctor's negligence he would not have suffered harm.would not have suffered harm.

In In Barnett v Chelsea,Barnett v Chelsea, “But for” the doctor's failure to “But for” the doctor's failure to attend the night watchman, he would not have died. attend the night watchman, he would not have died. The breach has been a principal cause of death. The breach has been a principal cause of death.

Nield J in Barnett concluded “I find that the plaintiff Nield J in Barnett concluded “I find that the plaintiff has failed to establish, on the grounds of has failed to establish, on the grounds of probability, that the defendant's negligence caused probability, that the defendant's negligence caused the death of the deceased. "The claimant was not the death of the deceased. "The claimant was not able to satisfy “but for” test because “on the able to satisfy “but for” test because “on the balance of probabilities” the man would have died balance of probabilities” the man would have died of arsenic poisoning anyway.of arsenic poisoning anyway.

Barnett v. Chelsea and Kensington Hospital Barnett v. Chelsea and Kensington Hospital Management CommitteeManagement Committee, [1969] 1QB 428 at 439, [1969] 1QB 428 at 439

C) Proving causationC) Proving causation

In Medical negligence cases it is In Medical negligence cases it is sometimes very difficult to prove sometimes very difficult to prove causationcausation

The courts considered two further The courts considered two further pointspoints

negligent conduct "had materially negligent conduct "had materially increased the risk’increased the risk’

““lost of chance”lost of chance”

C) Proving causationC) Proving causation

McGheeMcGhee, the claimant was exposed to , the claimant was exposed to brick dust and suffered dermatitis but had brick dust and suffered dermatitis but had difficulties to prove 'but for 'test. The difficulties to prove 'but for 'test. The House of Lords accepted causation on the House of Lords accepted causation on the basis that the negligent conduct "had basis that the negligent conduct "had materially increased the risk" of injury.materially increased the risk" of injury.

in in Gregg v ScottGregg v Scott. the case failed on . the case failed on causation, the courts do not totally reject causation, the courts do not totally reject the possibility of successful action for the possibility of successful action for negligent conduct "had materially negligent conduct "had materially increased the risk. increased the risk. McGhee v National Coal Board McGhee v National Coal Board [1973] [1973] 1WLR 1, 1WLR 1, Gregg v ScottGregg v Scott [2005]UKHL2 [2005]UKHL2

ConclusionConclusion ConclusionConclusion In medical negligence cases it is difficult to In medical negligence cases it is difficult to

establish responsibility and a result of it liabilityestablish responsibility and a result of it liability Should the law be reformed?Should the law be reformed? We need to stress that a good medical law is an We need to stress that a good medical law is an

ethical law and the numerous decisions ethical law and the numerous decisions concerning medical malpractice manifestly reveal concerning medical malpractice manifestly reveal a need for judicial acknowledgment of ethical a need for judicial acknowledgment of ethical dimension of negligence.dimension of negligence.

Generally speaking the law should endorse moral Generally speaking the law should endorse moral imperatives and preserve the principles of imperatives and preserve the principles of delivering justice.delivering justice.

Further readingFurther reading

Lord Woolf, Are the Courts Lord Woolf, Are the Courts excessively Differential to the excessively Differential to the Medical Profession?, 2001, 9 Medical Profession?, 2001, 9 Medical Medical Law ReviewLaw Review, 1-16, at 3 , 1-16, at 3

Williams K, Litigation against English Williams K, Litigation against English NHS ambulance services and the rule NHS ambulance services and the rule in Kent v Griffiths, 2007, 15(2) in Kent v Griffiths, 2007, 15(2) Medical Law ReviewMedical Law Review, at 157 , at 157