Medical Negligence

Dr Glenys Williams
Aberystwyth University
gnw@aber.ac.uk
“There are few things that medical professionals fear more than that
something will go wrong in their dealings with patients, leaving a
patient harmed.” (Herring)
 Sometimes (but very rarely), criminal proceedings – battery, assault, Sexual Offences Act
2003 (consent of the P not required), or in the case of death, gross negligence
manslaughter.
 Usually – it will be action in tort for negligence (compensation). The NHS funds claims –
individual professionals are not required to take out insurance (except GP’s), as the NHS
does this for them.
 More rarely (where it is a private provider) – an action for breach of contract; there is no
contract between an NHS patient and the NHS or its staff. So, NHS patients cannot sue for
breach of contract.
 GMC Professional disciplinary proceedings: https://www.gmc-uk.org/about/what-we-do-and-
why/investigating-and-acting-on-concerns-about-doctors
 The Ombudsman: https://www.ombudsman.org.uk/
Negligence – 3 requirements
(i) that the professional owed the claimant a
duty of care;
(ii) that the professional breached the duty; and
(iii) that the breach of duty of care caused the
claimant loss.
…………………….
 As to (i), you owe a duty of care to anyone
whom you may reasonably foreseeably
injure. Need to ask:
(a) Was it reasonably foreseeable that the Dr’s
actions would cause the v ictim harm?
(b) Is there a sufficiently close relationship
between the Dr and the patient? (e.g. a Dr who
fails to stop at a road traffic accident would not
owe a duty of care);
(c) Is there a public policy reason which argues
against a duty of care being found? (must be
“just and reasonable”);
(ii) Breach of the duty
CLINICAL DECISIONS
➢ Clinical decisions (what treatment to give and how to treat the P), use the Bolam negligence
test:
 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118: “A Dr 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.”
 Possible confusion after Bolitho v City & Hackney HA [1998] AC 232.
 Difficult to show a breach, because it must be shown that there is no responsible body of
medical opinion that would have approved of acting in that way.
………………………………………………………….
NON-CLINICAL DECISIONS
 Non-clinical decisions (what information to give the P about treatment and other advice to P’s),
will use the standard negligence test: Did the D act as a reasonable person in their position?
 Non-clinical decision would include: what treatment options are available; risk associated with
treatment; some basis diagnostic decisions; and non-medical advice.
 Potential effect of Montgomery v Lanarkshire
Bolam, Bolitho and Montgomery
 Bolam v Friern Hospital Management Company [1957] 2 All ER 118
Mr B was prescribed electroconvulsive therapy (ECT), which has risks of
convulsions and fracture. He was not warned of the risk, not given muscle
relaxants, and was not restrained. He suffered a fractured hip. He was
unsuccessful in proving negligence.
………………………………………………………
 Bolitho v City & Hackney HA [1998] AC 232
A 2 year old child died after a severe attack of croup which caused brain damage,
and a cardiac arrest. The Dr failed to attend. The question was whether he would
have died anyway. Yes he would. Causation not proved.
……………………………………………………
 Montgomery v Lanarkshire Health Board [2015] UKSC 11
Pregnant woman with diabetes. Large baby with a 9-10% chance that the baby’s
shoulders would be dislocated during a natural birth. He was indeed born with
this and other complex disabilities. She was not told of the risk, nor that there
would be no risk if the baby was delivered by CS. Had she known, she would have
opted for the latter. She was successful in her claim for damages.
(iii) Causation
 Normal causation principles apply i.e. factual and legal causation; it does not have to be
the main or sole cause as long as it an operating and substantial cause.
 What is the position if the P is no worse off even if he had been seen by the Dr? or cases
where D failed to examine the P; or where the claimant was deprived of a chance of
treatment.
 Chester v Afshar [2004] UKHL 41: Severe back pain suffered by Ms C. Had surgery. But
surgeon failed to warn her of the 1-2% risk of significant nerve damage. She was left
partially paralysed. She would not have had the operation then if she had known, and
would have sought a 2nd opinion. She successfully sued.

 Gregg v Scott [2005] UKHL 2: A GP negligently misdiagnosed a malignant lymph gland as

benign. This meant the P did not get referred for 9 months. As a result, his chance of
survival went from 42% to 25%. He sued successfully (loss of chance).
 Was the injury caused by the D or by some other cause? Williams v The
Bermuda Hospitals Board [2016] UKPC 4: Patient developed sepsis after a
delay in treatment for a ruptured appendix. Held: If the negligence is a
material contribution to the harm, the D can be liable even if it was not
the sole cause of the harm. Where, however, the court finds that the same
harm would have occurred even if the negligent act would not have
occurred, causation will not be shown, and the claim will fail.
…………………………………….
Wright v Cambridge Medical Group [2011] EWCA Civ 669: 11month old baby
had an infection. GP did not refer her to hospital for 2 days, and then the
hospital also failed to diagnose until another 3 days. The GP was liable
because, only if he could show that the hospital’s negligence robbed his
negligence of all ‘causal potency’ could he show that his negligence did not
cause the injury.
  According to TORT principles: the claimant should be put back in the
position in which he/she was before the negligent act was
committed.
 A claim can include :
Damages
(i) Fair and reasonable compensation for the injury suffered (tariff)
(ii) Damages for pain and suffering;
(iii) Loss of amenity;
(iv) Expenses incurred as a result of the injuries;
(v) Loss of earnings up to the date of the hearing;
Example of a tariff: (vi) Future losses
https://www.wright Damages can be reduced for (a) contributory negligence, and (b) where P
hassall.co.uk/exper failed to mitigate his/her loss.
tise/compensation-
claims-calculator/
Can there be damages for secondary victims?
 The general position is that a
“secondary” victim (that is,
someone who did not themselves
suffer a physical injury) cannot sue
for psychological distress that he
or she suffers because of what has
happened to another.
 There are two exceptions to this:
(i) Where the claimant has witnessed
what happened to his/her relative,
when what he/she has witnessed
is especially horrifying; and
(ii) If the relative is told in a
particularly negligent way about
what has happened, and this
causes psychological injury.
Practical issues
 Limitation period (personal injury - 3 years; financial
loss – 6 years).
 Who should be sued? (Direct/vicarious liability).
 For every £2 paid in damages, at least £1 is paid for
lawyer costs.
 Legal aid is not available for clinical negligence cases.
 Making a claim is seen as an attack on professional
integrity and can lead to defensive practices, such as
treatments provided that are not needed; Drs are
overcautious because of fear of litigation.
 It also demoralizes medical professionals, and can lead
to clinical negligence and low job satisfaction.
 Harms the Dr-P relationship?
 Enormous expense for limited NHS resources.
 Bolam test criticised (see arguments for and against;
Herring pp135-6).
 Bearing in mind it is negligence, and not maliciousness,
is it a deterrent? Are any lessons learnt?
 Requiring the NHS to pay compensation to one patient
may mean that NHS resources are taken away from
other patients.
Regulation/legislation?

 Regulation 20 Health and Social Care Act 2008 (Regulated activities)

Regulations 2014 – “duty of candour” and an apology.
 The NHS Redress (Wales) Act 2011.
 Patient Advice and Liaison Service (PALS).
 Local Authority Social Services and NHS Complaints (England) Regulations
2009.
 Professional Regulation proceedings (GMC) – huge increase in number.
 The Ombudsman.
 [“No fault” scheme].