Medical negligence & malpractice and Distributive Justice

Question 1

Who are the beneficiaries of medical negligence and professional liability claims?

Answer 1

1. Insurance companies (increase in GDP)
2. Lawyers (increase in GDP)
3. Journalists/media (increase in GDP)
4. Biomedical industry (via defensive medicine related
   orders; increase in GDP)
5. Patients (compensation)

Question 2

Who are the “losers” of medical negligence and professional liability claims?

Answer 2

1. Doctors (stress, demoralisation, loss of trust
   in patients, de-professionalisation)
2. Patients (loss of caring doctors, defensive
   medicine)
3. The tax payer (cost of defensive medicine)

Question 3

What is the consequence of this in terms of the social climate?

Answer 3

A social climate advocating the allocation of blame

and seeking compensation

Question 4

What is the alternative to allocation of blame?

Who endorses this? Why did the government reject it?

Answer 4

Awards to injured patients irrespective of requirement of proving fault on the part of medical staff.

Endorsed (with changes) by BMA and RCP.
Rejected by the government - more costly, loss of deterrent value of the law of tort and increased failure of care.

Question 5

What is meant by ‘law of tort’?

Answer 5

Tort, in common law jurisdictions, is a civil wrong that causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act.

Question 6

In the NHS, a claim for medical injury is brought in..? How does this differ in the private sector?

Answer 6

TORT - i.e. based on non-contractual civil wrong

In the private sector – based on damages in contract.

Question 7

Whom should the patient sue?

Answer 7

If GP – direct claim. GPs are solely responsible for
their treatment.
If hospital doctor – claim against health authority, but
also doctor. All is paid by NHS.

Question 8

Define negligence.

Answer 8

1. The defendant had a duty of care to the
   claimant.
2. There was a breach of that duty.
3. The claimant suffered actionable harm or
   damage.
4. The damage was caused by the breach.

Question 9

What is a breach of duty of care?

Answer 9

Failure to reach the level of proficiency of peers.
N.B
Ignorance is no defence - i.e. juniors should seek seniors advice
Genuine errors of clinical judgement are not negligence if based on reasonable skill.

Question 10

What are the two aspects of breach of duty of care?

Answer 10

The breach can be
1. done (commission), eg forceps left in the
abdomen.
2. Not done (ommission), eg failure to attend a
patient or diagnose a condition.

Question 11

What other types of negligence are there? (3)

Answer 11

Improper use of innovative techniques

Misdiagnosis

Negligence in treatment: different from
excusable mistake.

Question 12

What is meant by res ipsa loquitor?

Answer 12

Normally, the onus of proof of negligence rests with
the claimant, unless the mistake is self-evident (ril).
eg, removal of wrong limb, operating the wrong
patient, giving the wrong drug, not removing all
forceps/swabs. All such cases are settled out of court, since they are virtually indefensible.

Question 13

What is meant by quantifiable harm?

Answer 13

Loss of earnings, reduced quality/quantity of life, disfigurement, disability, mental anguish.

Question 14

What is meant by contributory negligence?

Answer 14

Claimant has contributed to their harm suffered - will not affect judgement but can reduce damages

Question 15

According to the Limitation Act 1980, acts of negligence must be sued within…?

Answer 15

3y of the date of knowledge.

For a child, this starts at 18. For a mentally ill patient – from time of recovery.

Question 16

What is meant by criminal negligence?

Answer 16

When negligence goes beyond compensation to such disregard for life and safety as to amount to a crime.

Question 17

What is the legal process of claiming?

Answer 17

1. Letter of claim (info, request for notes, value of claim, offer to settle). Must be acknowledged within 14d + copies of requested notes within 40d.
2. Letter of response with 3m (comments, documentation to be used, offer to settle).
3. Claim form by a civil court.
4. Denial by defendant.
5. Proofing.
6. Assessment of quantum. A settlement may be reached by a Trust, leaving doctors to feel that justice was not done. 7. 5% go to court. Decision based on expert opinion.

Question 18

What are the four basic bioethical principles?

Answer 18

autonomy, justice, beneficence, and non-maleficence

Question 19

What is justice?

Answer 19

“Each getting what he or she is due (fairness)”.

Question 20

What is formal justice?

Answer 20

Impartial and consistent application of principles, whether or not the principles themselves are just.

Question 21

What is substantive justice?

Answer 21

What individuals can legitimately demand of one another or of their government (“positive rights”).

Question 22

What is retributive justice?

Answer 22

When and why punishment is justified.

Question 23

What is corrective justice?

Answer 23

Fairness of demands for civil damages.

Question 24

What is commutative justice?

Answer 24

Fairness of wages, prices, and exchange.

Question 25

What is distributive justice?

Answer 25

Fairness of distribution of resources. Distributive justice determines all other forms of justice.

Question 26

What are the underlying assumptions in distributive justice?

Answer 26

1. Resources are always limited and finite. Scarcity results because demand exceeds supply (tautology?). 2. Current crisis is an unfortunate, however natural, i.e. inevitable, phenomenon. 3. Rationing is therefore inevitable. 4. It should be based on principles of justice.

Question 27

Why is there increasing demand?

Answer 27

- Increase in population. - Rising life expectancy. - Increase in unhealthy life expectancy. - Greater public awareness of rights and possibilities. - Increase in supplier-induced demand. - Low costs at point of delivery result in infinite demand

Question 28

Why is there decreasing supply?

Answer 28

- Medical technology is more expensive than ever. - Other national needs, not only health care. - Increase in defensive medicine (up to 30%?) and other forms of inefficiency. - Global economic crisis, and the need to contain government’s expenditure. - Decreased social solidarity (e.g. less organs for transplantation)

Question 29

What is the evidence of scarcity in the NHS?

Answer 29

1. HC budget 6% of GNP 2. Expenditure per capita less than most other industrial countries. 3. UK behind in provision of hospital beds per 1000 pop. 4. Shortage of doctors and nurses, long waiting lists. 5. Some drugs and services are not available. 6. Under-funding for specific groups.

Question 30

What are the two types of rationing?

Answer 30

Explicit (i.e. denied drug/surgery) and implicit (long waiting lists, poor service, bureaucratic obstacles, futility arguments, public unclear about entitlements, GPs as gatekeepers)

Question 31

What does NHS Act (1977) sec 3 state about the government's obligation to provide health care?

Answer 31

The government has a legal obligation to make adequate provision for health care “to such extent as [the Secretary of State] considers necessary].

Question 32

Apply utilitarianism to rationing.

Answer 32

Utilitarianism: allocation based on need or expected outcomes. 1. Greatest happiness for greatest number. Pity the minority. 2. Greatest happiness for the more powerful. Pity the weak.

Question 33

Apply rights-based approach to rationing.

Answer 33

1. Egalitarian approach (people have equal rights): an equal share for everyone. Pity the rich. 2. Property rights outweigh health care rights (pity the ill, poor, and aged).

Question 34

What are the formal solutions for macro-allocation of services?

Answer 34

1. Nozick – complete privatisation – free competition. 2. Rawls – veil of ignorance – managed competition. 3. Ask the public (Oregon, NZ).

Question 35

What are the formal solutions for micro-allocation of services?

Answer 35

``` Allocation according to: 1. social merit, age, and sex. 2. outcomes (prognosis, productivity) [QALY, DALY, the fair innings approach]. 3. responsible/irresponsible behaviour of patients. 4. individual’s needs. 5. lottery of some kind. 6. Ability to pay ```

Question 36

Why not just have private health care? - utilitarianism approach

Answer 36

Pro: Most patients and doctors would benefit. Con: Most patients and doctors would be harmed.

Question 37

Why not just have private health care? - rights-based approach

Answer 37

Pro: property rights (negative rights) outweigh rights to HC (positive rights) Con: Rights to HC outweigh property rights

Question 38

Loyalty to the prevailing interests of society comes before loyalty to patients - true or false?

Answer 38

TRUE