Health Law & Ethics (SAHS 203)
Medical Negligence
Learning objectives
Upon completion of this session;
Ø Medical negligence
Ø Laws of Tort
Ø What constitutes medical negligence
Ø Duty of care
Ø Breach of the duty of care
Ø Causation of harm
Ø Damage 2
What is medical negligence?
ØMedical or clinical negligence is;
– the deviation from medical professional duty of care
– a failure to exercise an acceptable standard of care
ØArises from medical mistakes and/or poor
healthcare
ØPatient or claimant must suffer;
– an injury
– an illness
– death
Medical negligence (cont.)
ØMedical mistakes arise when health professionals
deliver incorrect;
– diagnosis
– treatment
– medical advice
ØFailure to provide appropriate care and attention
ØClaim for compensation can be made against the;
– individual (i.e. health professional)
– health institution
Medical negligence (cont.)
ØMedical negligence comes under the laws of Tort
ØA Tort is a civil wrong that causes someone to
suffer loss or harm
ØUsually results in legal liability for the person who
commits the tortious act.
ØTorts may be;
– Intentional; when the professional intends to violate
legal duty
– Negligent; when the professional fails to exercise the
proper standard of care
Medical negligence (cont.)
ØTort system in medical protection has three main
purposes;
– provides compensation for injuries
– creates accountability for actions
– promotes patients’ safety and quality of healthcare
ØUnfortunately, the litigation process is adversarial;
– pitting health professionals against patients
– destroys the trust required for an effective care
– impedes the objectives of patient safety
What constitutes medical negligence?
ØDuty of care
– the plaintiff must show that the professional or
hospital owes him a duty of care as a patient
ØBreach of the duty of care
– the care provided falls below the legal standard
ØCausation
– injury was caused by the breach of care
ØDamage
– the patient suffered damage as a result
Duty of care
ØDuty of care arises when a patient seeks
the services of a health professional
and/or institution
ØDuty of care can be established
between;
–patient vs. health professional
–patient vs. health professional +
health institution
Duty of care (cont.)
ØDuty of care can easily be determined if a
health professional is directly involved in a
professional relationship with a patient
ØSometimes a duty of care is difficult to
establish;
– For e.g. suing the owner of a diagnostic center for
the negligence of one of his radiographers
ØThe duty of care starts with the beginning of
the health professional-patient relationship
Duty of care (cont.)
ØThe patient may terminate the
relationship unilaterally
ØHealth professionals have to transfer
patients to a qualified professional
–Failure to do so may mean
abandonment
–Legally and ethically wrong
What is the scope of the duty of care?
ØAppropriate response when called to attend
ØObtaining consent of patients at all times
ØTimely and appropriate investigations
ØAccurate assessment and diagnosis
ØGiving accurate information on disease and
medication
ØSafe and effective treatment
ØAppropriate and timely referral
ØMaintaining medical confidentiality
Breach of the duty of care
ØThe plaintiff must prove that there was a
breach of duty of care;
–i.e. healthcare provided was below legal
standard
ØThe standard of care must be current
ØInterpretation of the standard of care is
conducted by;
–panel of experts (in-house)
–court of law
Breach of the duty of care (cont.)
ØAt the court of law, the standard of care is
decided by applying the Bolam test;
– the standard of care determined by a group
of respected and eminent professionals
– the standard of care is articulated by
experts in a report and under cross-
examination in court
– divergence of medical opinion does not
negate the standard of care
Breach of the duty of care (cont.)
ØThe court also applies the Bolitho test;
–critically examines the opinion to see if it
can stand the test of logic and reason
–the opinion must include the process of
reasoning
–conclusion reached
–taking all facts into consideration
–must be defensible
Causation
ØThe patient must show proof of injury or harm
ØCausation must be proven on a balance of
probabilities
– greater than 50%
ØThe court often uses the “but for” test;
– “would the patient have suffered the injury but for
the negligent act of the professional?”
ØIf yes, the defendant is not liable
ØIf no, defendant is liable
Damage
ØDamage is the harm caused by negligent act
ØDamages refer to the monetary compensation to
one who suffered a loss;
– punitive damages
– nominal damages
ØDamages could also be awarded to compensate
for;
– monetary loss (loss of wages, medical expenses)
– non-economic loss (like pain and suffering)
Conclusion
Ø Health professionals owe a duty of care to patients
– responsible judgment at all times
Ø Personal integrity
Ø Professional integrity
– to preserve and promote healthcare
professionalism
Ø Negligent actions can be destructive to;
– the health professional-patient relationship
– the trust between society and the health
professions
QUESTIONS
