Clinical negligence, formerly known as 'medical negligence', is the process by which a patient takes his or her medical attendants to a civil court for compensation. It is not about professional conduct or terms of service.
- In order for negligence to be proven a Claimant (usually the patient) must show that the doctor owed a duty of care to the patient, that the doctor was negligent in his or her management, and also that the patient suffered harm as a result. The Claimant has to succeed on both liability and causation to obtain compensation:
- Liability to show that the doctor or nurse must have been found to have acted in a manner that no other similar professional would have done.
- Causation that harm has resulted which would not otherwise have occurred (on the balance of probability, ie the action of the doctor or nurse was more than 50% likely to have caused the harm).
- The Claimant's loss is then assessed in terms of quantum (loss of current and future earnings, reduced quality of life, mental anguish) and the recompense is money - nothing more and nothing less.
The tests of liability - Bolam and Bolitho
The Bolam Test
This was recognised in the classic direction of McNair J. to a jury in Bolam vs Friern Hospital Management Committee.
- A doctor is not guilty of negligence if he or she has acted in accordance with a practice accepted as proper and responsible by a responsible body of medical practitioners skilled in that particular art. Putting it the other way around, a doctor is not negligent if he or she is acting in accordance with such a practice merely because there is a body of opinion which takes the contrary view.
- The implications of this for those in primary care are that the standard against which one is judged is that of one's own peers - not that of the wisest and most prudent doctor who exists and not that of a hospital consultant who may carelessly venture opinion as to the management in general practice. By the same principle, the persons who give evidence to the Court about the standards in general practice can only be general practitioners who were practising at the time of the case.
- The standard to be applied is not that of a most astute doctor or necessarily that of a professor of general practice, but that of an ordinary and competent GP acting responsibly.
The Bolitho Test
In the case of Bolitho, the House of Lords decided in effect that, if the management by a body of responsible doctors was not demonstrably reasonable, it would not necessarily constitute a defence. If professional opinion, called in support of a defence case, was not capable of withstanding logical analysis then the court would be entitled to hold that the body of opinion was not reasonable or responsible. More simply put - you cannot defend a case on the basis of a current practice that is not reasonable or logical.
Loss of a chance
In the case of Gregg vs Scott brought to the House of Lords in 2002, it was established that a patient must prove that a doctor's action, or lack of it, caused the patient to suffer injury and not just the chance of avoiding an injury. In practical terms this means that a doctor failing to diagnose a case of cancer in which a patient has only a 25% chance of survival would not be found negligent. Only if the chance of survival was over 50%, ie a probability of a cure rather than a chance of a cure, would negligence be found.
Civil Procedure Rules
The rules by which civil cases are conducted are the Civil Procedure Rules (CPRs) and doctors giving evidence as expert witnesses have to follow Part 35 of those rules in the submission of medical evidence.
The most important rule here is that 'experts' have to understand that they are there to advise the court and not to take the side of the party who is paying their fees. They have to remain impartial and should not, for instance, enter into fees being paid conditional to the outcome of a case.
These rules apply strictly in England and Wales but not in Scotland or Northern Ireland.
Reports in legal matters
Any doctor submitting opinion that might be used in a court would be advised to end the opinion with the statement:
"I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer."
The process of litigation
The CPRs have to be adhered to by the lawyers:
- Once a claim is being made, a 'letter of claim' has to be sent. The letter of claim must be acknowledged within 14 days and a detailed response must be provided within four months.
- If the Claimant wishes to proceed further, they then need to issue proceedings stating 'particulars of claim' and 'particulars of negligence'.
- The Defence then issues a formal defence and any statements to support that defence.
- Experts from both sides will have prepared reports and at some stage the information will be exchanged. If the case continues, the Court will order a meeting of experts to try to define the areas of disagreement. Finally, only as a last resort, will it come to trial.
The process is prolonged and painful for all parties so is best avoided.
A case must be brought within three years of knowledge of harm suffered - so, if a patient thinks they have received negligent treatment today, they have 36 months in which to file a claim. Exceptions to this rule are:
- At the time of the injury the Claimant was a child (under the age of 18) - no time limit.
- At the time of the injury the Claimant was mentally ill - limitation period starts from the time of their recovery.
- At the Court's discretion - the judge can decide that a case which is 'out of time' can proceed.
Good medical records are essential both for patient care and to provide a defence against any claim of alleged breach of duty. Records should be sufficient to enable any colleague to continue providing care for the patient.
The GMC guidance on Good Medical Practice states:
- Record your work clearly, accurately and legibly.
- Documents you make (including clinical records) to formally record your work must be clear, accurate and legible. You should make records at the same time as the events you are recording or as soon as possible afterwards.
- You must keep records that contain personal information about patients, colleagues or others securely, and in line with any data protection requirements.
- Clinical records should include:
- Relevant clinical findings.
- The decisions made and actions agreed, and who is making the decisions and agreeing the actions.
- The information given to patients.
- Any drugs prescribed or other investigation or treatment.
- Who is making the record and when.
When applicable, the record should also include:
- Comment on the patient's progress.
- Any findings on examination.
- A management plan (including monitoring, referrals and follow-up).
- Details about chaperones offered and whether present when considered appropriate.
- A record of any consent (such as for a joint injection or minor surgical procedure).
- Any situation when the patient has refused to be examined or comply with treatment.
- Comment with regard to opinion, including the diagnosis/differential diagnosis.
Details of any telephone consultations or any other instances of care should also be recorded.
Twelve tips to avoid litigation
- Make good contemporaneous notes.
- Record all patient contacts.
- Record all DNAs.
- Always give and record follow-up advice.
- Detect and act upon abnormal results.
- Choose computer software that encourages good records.
- Stay safe - always consider the possibility of a serious diagnosis.
- Some patients just want an apology, which can go a long way.
- Response letters to complaints need to be written extremely carefully.
- Consult your medical insurance company - they are the experts.
Further reading and references
Good Medical Practice - Explanatory Guidance; General Medical Council
Civil Procedure Rules; Ministry of Justice
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