Common law applied in Medical
Negligence:
Duty of care/ Standard of Care
Katarzyna Gromek Broc
University of York
Responsibility versus Liability
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What happens if a patient is harmed or
suffered adverse impact of a treatment
received in hospital or provided by doctor?
Who is to blame?
Before we can raise liability we need to
establish responsibility
Could we establish responsibility? Whose
fault was it?
Responsibility in medical
negligence
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In medical negligence cases it is
sometimes difficult to demonstrate that
the harm was caused by the health
professional's conduct since there might
be a variety of possible explanations of an
adverse impact of treatment due to the
complexity and inexactitude of medicine.
Responsibility versus liability
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Difficulties in medical negligence cases to establish
responsibility
Why?
multiplicity of factors could cause injuries or where for
example, the doctor failed to attend the patient.
progression of illness
“unknowns” in medicine that expertise cannot reveal.
The drugs could have so far unknown side effects
there is more than one agent at work.
Medical Malpractice
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Overview
Overall patients are satisfied with the National Health
System (NHS): 90 percent of patients are happy with
treatment they received.
However, incidents and errors happen
Each year around 400 people die or suffer serious
injuries as a result of treatment in hospital. Available
data indicate that 11 per cent of patients in hospital
experienced adverse impact of treatment, of which over
a half were preventable of ordinary standards if care
were respected.
In 2004, 44 percent of NHS staff reported witnessing an
error or near error
What are the legal consequences of the situation
where a person has suffered harm through
treatment provided by a health professional?
Medical Malpractice
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What can patient do?
Actions available to them
Civil Action in tort of negligence: action for
damages
Disciplinary proceeding but no
compensation
Criminal Action for gross misconduct,
manslaughter
Civil Action for damages in the tort
of negligence
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We need to clarify a certain number of points.
For example,
Who is responsible?
in which situations liability may arise?
is liability contractual or not,
what is negligent care, what standard of care is
expected from the physician? what is the
criterion for professional negligence?
did a duty of care exist or not?
Action for damages in tort of
negligence
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In order to be successful the claimant must be
able to demonstrate three things.
First, that the health professional owed him a
duty of care.
Secondly, that the health professional breached
the duty of care (also when care was not of
appropriate standard).
Thirdly, that the claimant must prove causation
namely that he suffered harm caused by breach.
A) Duty of Care
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Who should bear the duty of care?
Why is it so important to establish that the
duty of care existed?
When does it start?
Duty of care
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In English law, unlikely in civil law
countries, there is no 'Samaritan' duty of
care. In systems based on codification, the
codes impose the obligation of assistance
not only for medical practitioners and
supporting staff but also on every
individual who has a duty to rescue and
provide assistance for the person in peril.
Abstaining from providing aid is
punishable in criminal law.
A) Duty of care
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In English law, the relationship between two strangers
could not impose liability since it would be considered by
the courts as not sufficiently 'proximate' and non 'just
and reasonable' for liability to arise.
English common law does not impose the duty to
rescue of a stranger, "however grave the emergency and
regardless of how easy it would be to render effective
help".
It is generally well accepted that there is no duty on a
health practitioner to treat unless the person to be
treated is already their patient or they do so at their will.
A) Duty of care
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Stuart-Smith LJ said in Capital and
Counties plc v Hampshire County Council,
“the mere physical proximity between a
doctor and a sick person, of itself creates
no duty to treat.“
Thus, by analogy, the doctor does not owe
a duty of care to a patient who falls ill in a
public place in the presence of a doctor.
Duty of Care
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Contrary, the law seems to “punish'“ a doctor who tries
to help a stranger and involuntarily aggravates his or her
condition. From the moment he intervenes, “he is under
duty not to make the victim's condition worse“. Since
liability arises for providing improper or inadequate care.
The law recognises the doctor-patient relationship,
giving rise to duty of care from the moment the doctor
started treating a stranger. In Horsley v. McLaren it was
decided that "once a doctor begins treatment he must
do all he reasonably can to save the rescue, who is now
his patient".
Duty of care
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A duty of care is owed by a general practitioner to a
patient who is registered with him/her and has
consulted him/her on the relevant issue. A general
practitioner does not have an obligation to find out by
himself and visit a patient unless he is aware of the
condition or the patient is over 70, or in special needs.
In emergency situations, general practitioners, but not
other consultants, have a statutory duty to treat anyone
who is in immediate need in their geographical practice
area.
In the hospital treatment the duty of care is owed once
a patient has been admitted to the hospital.
In the emergency circumstances, the duty arises when
the patient presents himself at the emergency unit even
before he consulted a doctor.
Duty of care: emergency services
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Before 2001, there was no duty of care imposed
on emergency services such as ambulance,
police, fire fighters or coastguards. Howarth
commented: “this is the extraordinary rule...
that the public rescue services have no duty to
rescue anyone”.
In the 2001 Kent decision, this duty was
extended to require ambulance services to
respond on the 999 call within a reasonable time.
Kent v Griffiths [2000] 2All ER 474 (CA)
A) Duty of care
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Barnett v Chelsea. Three night watchmen
presented themselves at a casualty department
complaining that they had been vomiting after
drinking tea at work. The nurse informed the
casualty doctor by telephone about the
symptoms. The casualty doctor, unwell himself,
instructed her on the phone to tell the men to
go home and to see their general practitioners.
He did not personally examine them.
Barnett v Chelsea and Kensington Hospital
Management Committee [1969] 1 QB 428
Duty of care: Barnett Chelsea
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The main question in this case concerned the
relationship between the three men and the hospital
staff. The Court found that a duty of care existed and
was breached by the failure of a doctor to attend the
patients and to make a proper diagnosis.
Nield J held “In my judgment, there was here such a
close and direct relationship between the hospital and
the watchmen that there was imposed upon the hospital
a duty of care which they owned to the watchmen. Thus
I have no doubt that nurse Corbett and the medical
casualty officer were under the duty to the deceased to
exercise that skill and care which is to be expected of
persons in such positions acting reasonably.”
Duty of care (acceptable standard
of care)
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Liability arises not only when the doctor fails to
attend his patient but also in relation to the
quality and suitability of treatment.
But how does the law set up the
boundaries of what is an acceptable
standard of care?
In Wilsher, an inexperienced, junior doctor
inserted by mistake a catheter into a vein rather
than an artery to an infant. The Court of Appeal
held that Health Authority is under obligation to
provide skilled treatment and financial
stringency under which hospital operates
provided no defence to an action in negligence
A) Duty of care/Standard of care
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in Bull v Devon AHA on what is to be expected
as a reasonable standard of care.
Mrs Bull gave birth to a disabled child that was
due to the asphyxia caused by the delay during
the delivery because a doctor was not available
to attend her. The hospital had maintained
services on two sites and the system for
summoning doctors had broken down. The
Court of Appeal decided that the system failed
to provide her an acceptable standard of care.
Bull v Devon AHA [1993] 4 Med LR 117 (CA)
Standard of care/ Developments
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The House of Lords’ decision in Chester v Afshar,
a failure to inform the patient of the possible
adverse consequences of surgery, gave rise to
liability.
Miss Chester suffered lower back pain. She was
referred to Dr Afshar, a neurological specialist
who did not inform her about the risk of the
operation: ‘had Miss Chester been warned, it
was a duty of the doctor to warn her’. Therefore,
the doctor would not perform up to acceptable
standard if he did not warn the patients about
possible risks.
Chester v Afshar [2004] 4 AA E.R. 587
B) Breach of duty of care
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if the health practitioner (doctor,
hospital) failed to provide duty of care
if the care provided was not appropriate
standard
But how do we assess appropriate
standard?
Assessing Standard of care
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The leading case providing a test on what is the
appropriate standard of care is the House of
Lords decision in Bolam.
Mr Bolam had some mental health problems and
his doctor subjected him to electro-convulsive
therapy without administering him a relaxant
drug and without restraining his movement. As a
consequence Mr Bolam suffered a fractured hip
and some other minor injuries. He claimed that
the hospital was vicariously liable for the
carelessness of its doctor
Bolam v Friern HMC (1957] 2All ER, 118
Assessing Standard, Bolam test
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McNair J in Bolam considered that a person falls
below the appropriate standard, and is negligent,
if a person fails to do what a 'reasonable' person
would have done in the similar circumstances.“
“The test is the standard of the ordinary skilled
man exercising and professing to have that
special skill. A man need not to possess the
highest expert skill at the risk of being found
negligent. It is a well-established law that it is
sufficient if he exercises the ordinary skill of an
ordinary man exercising that particular art"
Assessing Standard
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One of the important findings in Bolam is that it
is not up to a judge to decide what appropriate
standard of care is but it is up to the expert
professional body
'a judge is not in the position to choose
between the views of competing medical expert
opinions. As long as there is a competent school
of thought that believed the defendant's actions
were reasonable the judge will find the
defendant had not been negligent.”
Assessing Standard
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The Bolam test is standard-reflecting and not
standard-setting: it reflects only the standard of
current practice.
The professions can sometimes develop
unreasonable practices. Some practices may
develop in professions, not because they serve
the interest of the clients, but because they
protect the interests and convenience of
members of the profession
Assessing Standard
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Change of the wind
the Bolam test was challenged in the Bolitho decision
The facts concern a two year old boy admitted to
hospital with respiratory problems. The boy suffered two
acute respiratory attacks while in hospital but the doctor
did not attend him. The boy however recovered. The
third time, child collapsed with a failure of his respiratory
system that led to a cardiac arrest. As a consequence he
suffered a severe brain damage. The child died shortly
after.
Bolitho v City & Hackney Health Authority [1998] AC 232
Assessing Standard: Bolitho
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Lord Browne-Wilkinson held
"the court has to be satisfied that the
opponents view of the body of opinion has 'a
logical basis’. In particular in cases involving,
as they so often do the weighing up of risks
against benefits, the judge before accepting a
body of opinion as being responsible,
reasonable and respectable, will need to be
satisfied that, in forming their views, the experts
have directed their minds to the question of
comparable risks and benefits and have reached
a defensible conclusion in this matter
C) Proving causation in medical
negligence cases
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In the civil action for damages, the patient
adversely affected by treatment not only
has to demonstrate the existence of a
duty of care, the breach of this duty and
the negligence of the health professional
but also a direct link between the
negligence and his/her injury.
C) Proving causation
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English law uses the well known “but for” test to
demonstrate factual causation. The claimant needs to
show that 'but for' the doctor's negligence he would not
have suffered harm.
In Barnett v Chelsea, “But for” the doctor's failure to
attend the night watchman, he would not have died. The
breach has been a principal cause of death.
Nield J in Barnett concluded “I find that the plaintiff has
failed to establish, on the grounds of probability, that the
defendant's negligence caused the death of the
deceased. "The claimant was not able to satisfy “but for”
test because “on the balance of probabilities” the man
would have died of arsenic poisoning anyway.
Barnett v. Chelsea and Kensington Hospital Management
Committee, [1969] 1QB 428 at 439
C) Proving causation
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In Medical negligence cases it is
sometimes very difficult to prove causation
The courts considered two further points
negligent conduct "had materially
increased the risk’
“lost of chance”
C) Proving causation
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McGhee, the claimant was exposed to brick dust
and suffered dermatitis but had difficulties to
prove 'but for 'test. The House of Lords accepted
causation on the basis that the negligent
conduct "had materially increased the risk" of
injury.
in Gregg v Scott. the case failed on causation,
the courts do not totally reject the possibility of
successful action for negligent conduct "had
materially increased the risk.
McGhee v National Coal Board [1973] 1WLR 1,
Gregg v Scott [2005]UKHL2
Conclusion
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Conclusion
In medical negligence cases it is difficult to establish
responsibility and a result of it liability
Should the law be reformed?
We need to stress that a good medical law is an ethical
law and the numerous decisions concerning medical
malpractice manifestly reveal a need for judicial
acknowledgment of ethical dimension of negligence.
Generally speaking the law should endorse moral
imperatives and preserve the principles of delivering
justice.
Further reading
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Lord Woolf, Are the Courts excessively
Differential to the Medical Profession?,
2001, 9 Medical Law Review, 1-16, at 3
Williams K, Litigation against English NHS
ambulance services and the rule in Kent v
Griffiths, 2007, 15(2) Medical Law Review,
at 157