MEDICAL NEGLIGENCEDr. Ab. Halim Mansar

MEDICAL NEGLIGENCE

Medical negligence forms part of the area of professional negligence.

It is undeniable that those who are involved in the profession of medicine are more vulnerable to criticism and attacks compared to other professionals.

This is due to the fact that doctors deal with individuals most professional commodities, that is their life and health.

The Standard of Care

In order to succeed in a claim of negligence, the patient must further prove, on a balance of probabilities that the conduct of the doctor falls below the required standard of care.

The standard of care, which the law demands of a person in a normal case, has been established to be the standard of ‘reasonable care’.

The controversial question is that should the standard of care be the one observed by reasonably competent members of the profession or should it be the one, which the court considers ought to be observed by reasonably competent members of the profession?

Bolam Principle

The Bolam principle has been criticized as being over protective of the medical profession and leaves the patient with little room to manoevre in establishing negligence.

In Bolam, the plaintiff, John Bolam was a psychiatric patient suffering depressive illness. He was advised by Dr deBastarrechea, a consultant psychiatrist attached to Friern Hospital, to undergo electro-convulsive therapy (E.C.T). He signed a consent form but was not alerted to the risk of fracture that can occur because of fit-like convulsions that such treatment induces.

In due course, he received this treatment but was not given any relaxant drugs. As a consequence, he suffered several injuries. These included dislocation of hip joints and fractures to the pelvis on both sides cause by the femur on both sides being driven through the cup of the pelvis.

The plaintiff claimed that the doctor was negligent is not giving him relaxant drugs. By not doing so, the doctor also failed to provide adequate physical restraints to prevent the injury.

He also claimed that the doctor had failed to warn him of the risks involved in the treatment

The judge found the doctor not guilty of negligence as he had acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular area.

It can be seen that a doctor is not negligent if he has acted with a practice accepted as proper by a body of medical men who posseses similar skills to the doctor in question

It is important to remember that the "Bolam test" is just one stage in the fourfold test to determine negligence. First, it must be established that there is a duty of care (between a doctor and patient this can be taken for granted). Second, it must be shown that the duty of care has been breached. This is where the Bolam test is relevant, because falling below the standard of a responsible body of medical men means that person will be considered negligent. But in addition, third it must be shown that there was a causal link between the breach of duty and harm. And fourth, it must be shown that the harm was not too remote.

The Bolam test does not vary significantly in professional negligence litigation, but it causes greater difficulty for the courts in medical negligence than in claims against, say, a lawyer or an accountant, because of the technical issues involved. The problem is as follows:

The award of damages in the civil law is intended to compensate the claimant for the loss and damage caused by the relevant defendant.

A person seeks the assistance of a medical practitioner because of an inherent condition which may be physical, psychological, or contain elements of both, e.g. a person may be admitted to hospital with traumatic compression injuries resulting from an industrial or road traffic accident, and exhibit symptoms of shock.

At this point, the patient may already have a cause of action against an employer for failing to properly fence the machine that caused the injuries, or against the driver of a vehicle. If so, that potential defendant will be liable to pay damages for all the injuries caused and the consequential losses.

But suppose that the claimant receives negligent treatment in the hospital. In theory, a second cause of action arises against the medical practitioners and their employers (see vicarious liability). But the issue of causation is problematic. The court must be able to distinguish between any loss and damage flowing from the two causes.

Damages for the first cause must be valued by assessing what hypothetically perfect treatment would have achieved. This may be a complete recovery at some time in the future, or residual permanent disability represented by a percentage loss of movement in joints, etc.

In the second action, the court must find that the negligent treatment actually caused a different outcome which is measurably more severe than the first hypothetical outcome. Thus, if the only consequence to the negligent treatment was delay in the recovery time and the outcome ultimately delivered matches the hypothetical perfect outcome, the measure of damages will be limited to the additional pain and suffering, and additional loss of earnings.

Now substitute a heart attack for the accident. The patient is not entitled to any compensation for injuries arising naturally, but only for those injuries directly attributable to the negligent treatment. The post mortem shows that the patient was going to die no matter what the medical practitioner did but, in this instance, the negligence probably accelerated the inevitable death.

Background of Bolam Principle

It can be seen that before the establishment of the Bolam principle, the courts found it difficult to set a standard for the medical profession and majority of them opined that such matter should be left to medical judgments.

In Mahon v Osbourne, the plaintiff, Thomas Mahon, was operated on for a perforated duodenal ulcer by the defendant.

During the operation, swabs were used to pack off the adjacent areas in the patient’s abdomen.

At the end of the operation, the defendant. Removed all the swabs of which he was aware.

He asked the theatre sister to count the swabs and after she confirmed that the number was correct, the plaintiff was sewn up.

In June 1937, the plaintiff was acutely ill & a further operation was necessary.

During this operation, a packing swab from the first operation was found lying just under the part of the liver, which is close to the stomach

It had caused an abscess, which led to the plaintiff’s death.

His mother sued as executrix for damages for negligence in the performance of the operation.

Misfeasance Where it can be shown that the decision-

maker was not merely negligent, but acted with "malice", the tort of "misfeasance in public office" may give rise to a remedy.

An example might be a prison doctor refusing to treat a prisoner because he or she had previously been difficult or abusive.

Although proof of spite or ill-will may make a decision-maker's act unlawful, actual malice in the sense of an act intended to do harm to a particular individual, is not necessary

It will be enough that the decision-maker knew that he or she was acting unlawfully and that this would cause injury to some person, or was recklessly indifferent to that result.

Palmer v. Tees Health Authority [1998] A psychiatric out-patient, who was known to be

dangerous, murdered a four year old child. The claim was that the defendant had failed to

diagnose that there was a real, substantial, and foreseeable risk of the patient committing serious sexual offences against children and that, as a result, it had failed to provide any adequate treatment for him to reduce the risk of him committing such offences and/or to prevent him from being released from the hospital while he was at risk of committing such offences.

But the court struck out the claim on the grounds that there was no duty of care towards the child, as any child, at any time, was in the same danger. Furthermore, as the patient did not suffer from a treatable mental illness, there was no legal right to either treat or detain the person.

Conclusions

Overall the question of professional negligence is problematic because, to a certain degree, each profession sets its own standards and may to that extent be considered "self-regulating". There is a form of legal pendulum that can swing either way depending on the policy issues involved but this is sometimes of little comfort to those who feel that they have not found justice in the legal system.

In cases such as Whitehouse v Jordan The court holds that the doctor was not at

fault because he did what other doctors might have done in the same circumstances.

Thus, the claimant was brain damaged and that damage was caused by what the doctor did, but the doctor was not legally at fault.

In one sense, this may be considered fair to the doctor who did exactly what many other doctors would have done.

But the baby's brain damage is just as bad no matter what the cause of it, and it seems unfair that the difference between obtaining damage and being denied any remedy should depend on the court's application of negligence.

References

Dr. Puteri Nemie Jahn, Medical Negligence law in Malaysia, 2003, Kuala Lumpur.

http://en.wikipedia.org/wiki/Bolam_Test, last modified on 2 January 2009,

Thank you

DR. AB.HALIM MANSAR