Basic Briefing on Civil Law -Tort

Basic Briefing on Civil Law -tort

The term civil law derives from the notion of duties and responsibilities owed between citizens (Latin “civilis, civis” = citizen). In its turn civil law has developed through court judgements based on the “common law”. Common law is that part of the law of England formulated, developed and administered by the old common law courts, based originally on the common customs of the country, and unwritten. It is the “commonsense of the community, crystallised and formulated by our forefathers”. There is a separate system of courts for civil litigation, as distinct from criminal litigation (or prosecution) (see basic briefing on the courts). The concept of “a civil wrong” is known in law as “tort” (another archaic term from Old French). A tort is an act or omission that causes harm to someone, whether intentionally or not, being a breach of a duty arising out of a personal relation or contract. Action under civil law allows an aggrieved party to sue for compensation from another citizen who is alleged to have “wronged” him.

Types of civil wrongs or torts Some types of tort are now rarely seen in courts; breach of promise, for example. Libel and slander actions will be rare but familiar to most people. Trespass is actually a civil wrong (those signs are all wrong – trespassers cannot be prosecuted, but they can be sued if they cause damage). In healthcare practice, the most likely actions might be breach of confidence, defamation and negligence. Most cases will be brought under negligence although battery is also a possible tort if a patient is treated without consent.

How civil law is made In a civil case, the complainant (plaintiff) makes an allegation that the actions of another person (the respondent) has caused them damage or injury. The plaintiff has to prove their case “on the balance of probabilities” in other words, it’s more likely than not that the respondent did cause them harm. Civil or common law is referred to as judge-made law as opposed to that made through Parliament. A strict hierarchical system of courts means that the lowest possible tier of the court system will first make a judgement on the particular facts of that case. This judgement becomes a precedent – or case law – for dealing with any similar cases, unless there are some significant facts that distinguish them from the first case. However, a higher court can disagree with the findings of a lower court and over-turn them. See also basic briefing on the courts.

“Medical Negligence” Action for negligence can of course be brought against the whole range of healthcare professionals and their staff, not just doctors. For all, three things have to be proved in the course of the case. • That there was a duty of care between the health professional and the patient or service user • That there was a breach of this duty of care • That this breach caused harm to the patient or service user APPLET carries three articles about negligence in relation to professional services from pharmacists. The first of these sets out the law relating to negligence. The second discusses the standards that might be applied to determine exactly what was the nature of the duty of care owed by the pharmacist. The third article explores ways to minimise the likelihood of being successfully sued for negligence

Examples of professional negligence in pharmacy Most cases involving a failure on the part of a pharmacist are settled out of court. However, three cases (at least) have been contested in court and these can be found in Dale and Appelbe’s Pharmacy Law and Ethics (7th Ed 2001 p233-5). In each case, both the dispensing pharmacist and the prescribing GP were held liable for their part in a mistaken supply of a medicine and each was required to pay an appropriate portion of the total compensation to the plaintiff.

Joy Wingfield November 2003