clinical liability

Question 1

Tort

Answer 1

• An act by the defendant (tortfeasor) which, without just cause or excuse, causes some from of harm to the plaintiff
• Inter-personal wrongdoing short of criminality
  
  • Negligence
  • Nuisance
  • Deformation
  • Trespass upon the person

Question 2

Professional negligence

Answer 2

• Tort of negligence comprises of 3 elements
  
  • Demonstratable duty of care
    
    • A duty of care is owed to anyone who can reasonably be foreseen as likely to suffer harm; includes all health services and advice
  • Breach of the duty of care
  • Damage to the plaintiff
    
    • There must be a causal link between damage and breach and that the damage was not too remote i.e. it could be reasonably forseen

Question 3

Duty of care

Answer 3

• Established in Donoghue v Stephenson 1932
  
  • You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour
• Who in law is my neighbour
  
  • Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I’m directing my mind to the acts or omissions which are called in question

Question 4

Nature of duty of care

Answer 4

• Applies to omissions as well as acts
• The duty of a health care professional is to exercise ‘reasonable care and skill’
  
  • This is well established in law
• Reliance is placed upon the special skill and knowledge
• The law would expect them to exercise that degree of competence which the average member of the profession is required to possess

Question 5

Standard of care required of professionals

Answer 5

• Bolam v Friern Barnet hospital management committee
  
  • Plaintiff given ECT therapy warned of a risk of convulsions, did convulse and fractured pelvis
  • Judged on a reasonable body of medical opinion
• Bolitho V City & Hackney health authority
  
  • 2-yr old with breathing difficulties after croup needed intubation, Doctor did not attend and the patient died
  • Added the notion of sustainable by logic to the Bolam test
• Montgomery v Lanarkshire health board
  
  • Important separation from the Bolam test in the context of consent of treatment
  • The duty to warn a patient of risks in treatment is not to be determined by reference to the actions of a reasonable and responsible body of clinicians

Question 6

Trespass

Answer 6

• Trespass is a tort- as in the tort of negligence
• There are 5 trespass torts
  
  • Assault
  • Battery
  • False imprisonment
  • Trespass to goods
  • Trespass to property

Question 7

Assualt and bettery

Answer 7

• Assault
  
  • Putting a person in fear of an immediate battery
  • Usually accompanies batter as a matter of course
• Battery
  
  • The infliction of unlawful personal force upon another
  • Force, which can include even light touching is unlawful if the person upon whom it is exerted has not given his/her consent to it

Question 8

End of life and death

Answer 8

• Murder
  
  • Must prove causes and must prove intent
    
    • But if a side effect of action- then there is no liability
  • Dr’s should not hasten death, but may take actions that coincidentally have this effect

Question 9

Duty of treat patients

Answer 9

• Tony bland- Hillsborough
  
  • Courts decided that tube feeding was a futile treatment, so it was stopped
  • So is it the case that Dr’s can’t kill a patient but can starve them to death
  • The judge said the law is morally and intellectually misshapen

Question 10

Murder or manslaughter

Answer 10

• Murder= with intent
• Manslaughter= without intent
• The case of Dr Cox, the rheumatologist
  
  • Patient: Mrs Boyes
    
    • Ra with fractures, ulcers, bedsores and gangrene
    • Desperate for relief from pain
  • Dr Cox administered KCl injection
  • Charged with attempted murder
  • 12-Month suspended jail sentence, but not removed from medical register by the GMC

Question 11

Suicide and Euthanasia

Answer 11

• The suicide act makes illegal
  
  • Encouraging a suicide (self explanatory)
  • Procuring a suicide- telling someone to do it
  • Assisting a suicide- Helping proactively i.e. Euthanasia
• The law is unclear on omission
  
  • E.g. a patient has the right to refuse treatment and can ask a Dr to withdraw an existing treatment so
    
    • Would the Dr be guilty of battery if the do not comply
    • But is that assisting suicide if death results then law nott as clear

Question 12

Ethical perspectives

Answer 12

• All competent adults have a legal right to refuse life-saving treatment
• Respecting such wishes does not mean it is assisted suicide or euthanasia
• It is legally permissable to refrain from heroic measures

Question 13

What happens if a side-effect shortens life

Answer 13

• An action may have a good effect and a bad effect simultaneously
  
  • Provided that the intention is to produce the good effect
  • The bad effect may be foreseen, but should not be intended
• This reflects the prinicple of proportionality