Week 3 – Negligence Part 1 (OPTM 3072, 2023-2024) PDF

OPTM 3072-Semester 1, 2023-2024 Week 3 – Negligence Part 1 Lecturer: Ms. Sparkle Kirk Selman [email protected] sparkle.Kirk-Selman@sta...

OPTM 3072-Semester 1, 2023-2024 Week 3 – Negligence Part 1 Lecturer: Ms. Sparkle Kirk Selman [email protected] [email protected] Learning Objective: At the end of this lesson, you should be able to: u Describe what constitutes negligence (medical or otherwise), u Outline the consequences of negligence and how optometrists may avoid occurrences of negligence. INTRODUCTION Every medical professional's primary concern in each interaction with a patient should be the scope or potential for negligence. As optometrists, avoiding negligent acts and omissions is imperative, both for the benefit of your patients and yourselves. First and foremost, your avoidance of negligent acts and omissions is in the best interest of your patients. It is the essence of your professional duty as an optometrist to preserve and enhance the ocular health of your patients in a responsible, healthy, and safe manner. Furthermore, avoiding negligent acts and omissions is essential for developing one's professional reputation and the ultimate success of one's business or career. 1|Page WHAT IS NEGLIGENCE? Generally speaking, negligence occurs when a person fails to exercise the standard of care that a reasonable person would have exercised in similar circumstances. Negligence may manifest itself either through an act or an omission. For this course, a negligent circumstance is one where an optometrist (whether by an act or omission) fails to exercise the standard of care that a reasonable optometrist would have exercised if presented with the same or similar circumstances. ELEMENTS OF A CLAIM OF NEGLIGENCE There are three (3) elements to a claim of negligence. For a person to be successful in a negligence claim, they must prove or satisfy each of the following three conditions: 1. The accused owed the claimant a duty of care; 2. The accused breached that duty of care; 3. The breach of duty caused the damage claimed;. Duty of Care A claimant must establish that the accused owed them a duty of care. A duty of care refers to the circumstances and relationships in which the law imposes upon a person a legal duty to take care not to cause injury, damage, harm, loss or pain to another. Failure to take such care can result in the accused being liable to pay damages to the injured party or suffering loss due to their breach of duty of care. In establishing whether or not a person owes or owed a duty of care to another the standard test used is called the Caparo Test. In the case of Caparo Industries 2|Page v Dickman (1990), the House of Lords found that for a duty of care to be found, the claimant must establish the following: i. That harm was reasonably foreseeable; ii. That there was a relationship between proximity and iii. In all circumstances, it is fair and reasonable to impose a duty of care. The onus is on the claimant to prove that a duty exists. Regarding optometry, a duty of care would exist under the Caparo Test in most regular interactions between an optometrist and a patient. Breach of Duty A person who owes a duty of care to another will breach that duty if they fail to exercise the standard of care required in the circumstances. Accordingly, the standard of care required is that of the hypothetical "reasonable man". The test is, therefore, an objective test. In optometry, the required standard of care is established based on what a reasonable optometrist would have done in similar circumstances. Accordingly, the specific characteristics of the optometrist in question, as is the level of experience, are irrelevant. You should note that a mere error does not constitute negligence, as the required standard is not perfection. Where there is divided opinion within a profession regarding the appropriate course of action in a particular situation, an accused should not be treated in breach of duty by following one opinion rather than the other. 3|Page The test for establishing a breach of duty of care where there are different professional opinions is called the Bolam Test after the case Bolam v Friern. The Bolam case concerned a doctor accused of negligence. The following was said about the said doctor: "I myself would prefer to put it this way, that he 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. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view." Another means of establishing a reasonable standard of care is to refer to the expressed professional standards/codes of professional bodies, such as the TTOA or the General Optical Council of the United Kingdom (GOC). Causation For a negligence claim to succeed, the claimant must effectively demonstrate that the accused’s alleged negligence caused the claimant to suffer loss, injury, damage, etc. Causation is divided into two (2) categories: factual causation and legal causation. A claimant must prove both. 1. Factual causation The test used to establish factual causation is the “but for” test. The claimant must show that, but for the accused’s carelessness, the claimant would not have suffered the loss, damage, injury, etc. For example, consider the situation where a patient suffers gradual vision loss over time due to an apparent misdiagnosis by an optometrist. Completely unrelated to the 4|Page  misdiagnosis, the patient ultimately loses his sight completely in an accident in which a large metal pillar fell from the roof of a building onto the claimant’s car while parked on the road. Although the optometrist may have been careless in his diagnosis, his actions were not the factual cause of the complete vision loss. Contrast this situation where the claimant is a driver who could not see an oncoming vehicle due to an optometrist’s carelessness in performing tests. In this circumstance, but for the optometrist’s carelessness, the claimant would have been able to see the oncoming vehicle and would not have gotten into the accident. The optometrist would, therefore, be the factual cause of the injury. 2. Legal causation The claimant must also show that the loss or injury suffered was a foreseeable consequence of the careless actions or inactions of the accused or that the accused’s carelessness was the legal cause of the loss, damage, injury, etc. The damage must, therefore, be within the reasonable contemplation of the parties in the given circumstances. Sticking with the car accident example, it is reasonably foreseeable that substandard eye testing/treatment can lead to a driver getting into a car accident because they cannot see the roads correctly. The optometrist would be both the factual and legal cause in such a circumstance. However, when the metal pillar fell from the sky, the optometrist would not be found to be negligent, as such an occurrence would not be foreseeable or within the reasonable contemplation of the parties involved. Injuries caused by the breach of an optometric duty may include infection, 5|Page  ocular discomfort, decreased vision, blindness, and even death. To be actionable, the injury must be caused by the breach of the professional duty (i.e., by the doctor's negligence) to the patient. For example, a doctor may misdiagnose a patient with retinitis pigmentosa, and that patient may lose vision. However, because there is no known treatment for retinitis pigmentosa and because the patient lost vision due to an underlying condition for which there is no treatment, misdiagnosis did not cause injury to that patient. DAMAGES The following categories of damages may be claimed as a result of a person’s negligence: Economic damages include medical costs, lost wages, cost of transport, etc. Non-economic damages include pain and suffering, blindness, disfigurement, loss of amenities, etc. Punitive damages – where the accused has been especially malicious or deceitful. CONTRIBUTORY NEGLIGENCE Where any person suffers damage partly due to his fault and partly due to the fault of another person or persons, the damages recoverable by the claimant shall be reduced or adjusted to such extent as the court thinks fair, having regard to the claimant's share in the responsibility for the damage. CLAIMS FOR BOTH BREACH OF CONTRACT AND NEGLIGENCE As we have seen, a duty of care can arise whether or not there is a contractual relationship between the parties. However, where there is an existing contractual relationship, an optometrist may owe concurrent duties in both contract and in 6|Page tort. How to avoid a claim for negligence Take a complete and detailed history from the patient…. And document it Perform a complete clinical examination….. And document it! Consider what tests/investigations are needed ….. And document it! Ensure test results are reviewed accurately and against the correct criteria… ….. And document it! Always consider the possibility of a severe diagnosis…. And document the differential diagnoses. Always give follow-up advice ….. And document it! Implications from past negligence claims suggest that an optometrist must perform any readily available harmless testing that may benefit a patient’s care. Thus, the optometrist should not assume that negligence claims can be brought only for failure to follow a practice guideline or a textbook. A court can hold the optometrist liable for not using advanced diagnostic tests, not recommending the latest medical treatments, or not referring the patient for advanced surgical care. As optometric care advances, Optometrists will be held to higher standards of care. Optometrists should consider incorporating new diagnostic instruments into their practices and be comfortable and familiar with prescribing the latest medical treatments and performing or referring for surgical care. Optometrists should engage with their peers, regularly attend professional conferences, be aware of advances in the field, and read professional literature. Embodying what it means to be a modern optometrist will help the practitioner avoid negligence claims. 7|Page PRACTICE QUESTIONS Gwendoline v Mr. Isaac Gwendoline, a 16-year-old female footballer, wanted to try contact lenses for the first time to help her perform better for her Intercol football team. Her teammates were angry with her for missing a point-blank goal in the 90th minute to win their last game. “Gwendoline is the worst!” they collectively lamented. “When I die, I want Gwendoline to be my pallbearer so she can let me down one last time…” one depressed teammate sobbed. Gwendoline’s optometrist, Mr Isaac, recommended extended-wear soft contact lenses. However, Mr Isaac did not provide Gwendoline with a written document explaining the cleaning care system for the contact lenses or the risks of wearing them for overly long periods. Additionally, Mr. Isaac was a cheapskate who did not want to get rid of a number of contact lenses that had been recalled by the manufacturer due to contamination during production. Of course, Mr. Isaac gave Gwendoline one of those defective lenses. After wearing the contacts for a few days and nights without removing them, Gwendoline suffered symptoms of reduced vision, pain, and discomfort. When the pain and discomfort became unbearable, she finally removed the contacts and went straight to Mr. Isaac’s office. Upon seeing Gwendoline’s condition, Mr Isaac explained the care and cleaning process and referred her to an ophthalmologist for further treatment. Despite the treatment, Gwendoline suffered permanent vision loss from a corneal ulcer caused by pseudomonas aeruginosa. Gwendoline wants to sue Mr. Isaac both for negligence and for product liability. Discuss.~ 8|Page  Jasmine v Mr East Jasmine, a beautiful young doctor, visited Mr East (an optometrist) for contact lenses. At first sight, Mr East fell in love with Jasmine but pulled himself together enough to perform a routine eye examination without being too awkward (at least, he thought). Mr East noted pigmented deposits on Jasmine’s corneal endothelium during the slit-lamp examination. After noticing the deposits, Mr East, infatuated with Jasmine, did not perform dilation, gonioscopy, or a visual fields test. Instead, he opted to make small talk with Jasmine about his action figure collection, which he was super obsessed with and recommended that Jasmine return to his office the next day, mainly so that he could ensure he saw her again, but also because he knew he needed to perform further tests on who he thought at the time was his future wife. Jasmine made the appointment for the next day, but after the unnecessary chat about what she called the “stupid toys”, she was not in a hurry to see Mr East, so she did not turn up at his office until ten months after her vision had gotten worse. When Jasmine showed up at Mr. East’s office, though he still found Jasmine beautiful, his love had waned as his heart now belonged to a young Ukrainian woman, Kateryna, whom he met through Instagram and whose father owned the biggest toy store in Ukraine. Mr. East could not think of a dreamier woman than Kateryna. Mr. East nevertheless proceeded to examine Jasmine again. After this examination, Mr. East noted the intraocular pressures to be 28 mm Hg in the right eye and 25 mm Hg in the left eye, and the optic cup had increased from.3 to.5 in size. Mr East referred Jasmine to an ophthalmologist for immediate treatment; 9|Page however, she unfortunately already had some permanent loss of vision in both eyes due to pigmentary glaucoma. Jasmine wants to sue Mr East for failing to diagnose the condition at the first examination. Discuss. 10 | P a g e