Medical Ethics Lecture Notes PDF

TEXILA AMERICAN UNIVERSITY MEDICAL ETHICS LECTURE NOTES DR. MILIMO MEDICAL NEGLIGENCE PROOF OF NEGLIGENCE The essentials of negligence are four "D"s: a. There was a...

TEXILA AMERICAN UNIVERSITY MEDICAL ETHICS LECTURE NOTES DR. MILIMO MEDICAL NEGLIGENCE PROOF OF NEGLIGENCE The essentials of negligence are four "D"s: a. There was a Duty towards patients b. There was Deficiency in duty c. This Directly resulted in the problem d. Damage which may be physical, mental or financial loss to patient or relatives The majority of litigation following medical malpractice is brought under the tort of negligence. In order to succeed, the claimant needs to prove three things: (i) That the professional who is being sued owed the claimant a duty of care; (ii) That the professional breached the duty of care; and (iii) That the breach of the duty of care caused the claimant loss. THE DUTY OF CARE The basic approach in the law of tort is that you owe a duty of care to anyone whom you may reasonably foreseeably injure. 1|Page DR. MILIMO ©August, 2024 MPH, MSc, MSc*, MBChB, BSc.HB, DTM, AdvertCert.Psych The general principles of negligence regarding duty to care focus on the following questions: (i) Was it reasonably foreseeable that the defendant’s actions would cause the victim harm? If not, then there is no duty of care. (ii) Is there a sufficiently close relationship between the defendant and the patient? a. Goodwill v British Pregnancy Advisory Service: It was held that a doctor did not owe a duty of care, in giving contraceptive advice to a patient, towards people with whom the patient may in the future engage in sexual relations. b. West Bromwich Albion v El-Safty: It was held that a surgeon treating a football player did not owe a duty of care to his club, so as to be liable for financial losses suffered by the club when the player was treated negligently. At no point had the surgeon assumed responsibility for the financial wellbeing of the club. c. Farraj v King’s Healthcare National Health Service (NHS) Trust: it was held that a private laboratory that conducted some tests on a patient's material on behalf of an NHS hospital owed the patient a duty of care. The laboratory had not communicated with the patient, but knew that the results passed on to the hospital would be used to make decisions about treatment. d. If a medical professional walks past a road traffic accident and fails to offer assistance, this will not amount to breach of a duty of care, although it might infringe professional good practice. (iii) Is there a public policy reason which argues against a duty of care being found? It is well established in tort law that a duty of care exists only where it is 'just and reasonable' to impose one. 2|Page DR. MILIMO ©August, 2024 MPH, MSc, MSc*, MBChB, BSc.HB, DTM, AdvertCert.Psych  a. A (A Child) v Ministry of Defence: In which it was recognized that an NHS trust owed a duty of care to provide a safe and satisfactory medical service to a patient THE BREACH OF THE DUTY Having established that the defendant owed the victim a duty of care, the next question is whether the professional breached that duty. The leading decision is the Bolam v Friern Hospital Management Committee, in which it was held that ‘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’. This has become to be known as the Bolam test. So as long as there is a competent school of thought that supports the belief that the defendant’s actions were reasonable, the judge will find the defendant not to have been negligent. Having grasped the basic idea of the Bolam test, the following points delve into how the Bolam test operates: a. Current state of knowledge b. Respected body of opinion c. Standard of skill and specialism d. Emergencies e. Resources f. Protocols and policies g. Res ipsa loquitur CAUSATION 3|Page DR. MILIMO ©August, 2024 MPH, MSc, MSc*, MBChB, BSc.HB, DTM, AdvertCert.Psych Simply showing that a healthcare professional has been negligent does not mean that the claimant has won his or her case; it must also be shown that the negligence caused the victim's injuries. The basic test for causation is known as the 'but for' test. a. Davies v Countess of Chester Hospital NHS Foundation Trust: A doctor was dealing with a very sick man who was suffering from heart failure. He injected him with magnesium, but at four times the appropriate amount. That killed the patient. Although there was clear negligence, there was no liability because the court found that the patient was so ill he would have died at about the same time even with the best treatment. Therefore, although there had been negligence, it had not caused the death. b. Barnett v Chelsea and Kensington Hospital Management Committee: A doctor refused to see a man who turned up at casualty complaining of abdominal pain. The man died shortly afterwards. It was clear that the doctor was negligent in refusing to see the patient. However, the evidence suggested that even if the doctor had seen the man, there was nothing that the doctor would have been able to do to save the man's life. Therefore, although there was negligence, it could not be said to have caused the injury. 4|Page DR. MILIMO ©August, 2024 MPH, MSc, MSc*, MBChB, BSc.HB, DTM, AdvertCert.Psych