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Clinical Negligence A brief overview CLINICAL NEGLIGENCE LEN D’CRUZ A “tort” is a civil (as opposed to a criminal) wrong for which the law provides a remedy TORT LAW Tort Latin word “tortus” meaning crooked or twisted A cyclist is knocked down and killed by a speeding car A junior doctor mistakenly injects their patient with the wrong antibiotic causing permanent paralysis An elderly woman breaks her hip tripping over a raised paving outside her local shop A young child falls down a manhole left uncovered by post office employees earlier in the day and seriously injures his leg Trespass to Clinical land and negligence nuisance Product Defamation liability Vicarious Employers liability liability • A neighbour discovers that you are a dentist, and rings you one evening to ask your advice about appropriate mouthwashes. You recommend a product and the neighbour subsequently purchases it. However, it transpires that she has an allergy to one of the components of this mouthwash and develops multiple painful mouth ulcers. Does she have a claim in negligence against you? Whilst polishing a patient’s teeth after scaling , the end cap of the handpiece drops off and lands on the patients tongue. The hygienist sits him up but he swallows it. He is not distressed, he is given an explanation and he leaves after paying. Has the hygienist been negligent? If the patient sues who will be liable? In the case of swallowed foreign bodies, the complications of intestinal obstruction, perforation with subsequent abscess formation, haemorrhage, or fistula and failure of objects to progress, may occur.9 The majority of foreign bodies that cause obstruction lodge in the upper oesophagus. This can lead to oesophageal perforation with secondary mediastinitis and oesophageal obstruction with the risk of aspiration. Thus, swallowed foreign bodies retained in the oesophagus should be urgently removed using fibre-optic endoscopy. Once a foreign body has reached the stomach however, there is a greater than 90% chance of the object being passed from the gastrointestinal tract Ingested foreign bodies associated with orthodontic treatment: report of three cases and review of ingestion/aspiration incident management T M Milton1, S D Hearing2 & A J Ireland3 British Dental Journal 190, 592 - 596 (2001) PROBLEM COMPLAINT HA/PCT CLAIM PERFORMANCE REVIEW GDC What is negligence In everyday language it means “carelessness” or lack of proper care Loosely used by patients when something has occurred accidentally or a dentist has made a mistake “Negligence” has a very specific meaning in law What is the legal purpose of suing a dentist? Criminal law purpose is to punish the offender because they have broken a public law and the State prosecutes the defendant Civil law compensation (quantum) is paid to the claimant who has suffered harm -the intention of the compensation is put the patient (Claimant) in the same position as they would have been if the negligence had never occurred What is negligence To prove negligence a patient must demonstrate, on the balance of probability that: a) the dentist owed a duty of care to the patient b) there was a breach of that duty by not exercising reasonable skill and care and c) damage flowed from that breach either directly or indirectly Duty of care Breach of Damages standard of care Duty of care Breach of Damages standard of care Donoghue v Stevenson (1932) • Mrs Donoghue drank from a bottle of ginger beer which contained the decomposing remains of a dead snail. • The defendant , Stevenson who manufactured the ginger beer, argued that the claimant had not purchased the drink (for it had been supplied to her by a friend) and that there was therefore no duty of care in contract law. • The Court, however, dismissed this argument, holding that a duty of care is owed to anybody who is affected by another’s actions or inactions. When does a duty of care exist After drinking tea, three night watchmen started vomiting and attended the casualty department. The nurse telephoned the on call casualty doctor Dr Banerjee who told her to tell them to go home and call their own doctors. He did not examine the men who later died from arsenic poisoning. One of the men's wife's sued the hospital Decision in Barnett v Chelsea and Kensington Hospital Management Committee [1969] It was held that Dr Banerjee had undertaken to exercise reasonable care and owed the men a duty of care which he had breached by failing to examine them himself. “It is unfortunate that Dr Banerjee was himself at the time tired and unwell, but there was no none else to do that which it was his duty to do” Foreseeability of harm Duty of care Fair, just Proximity of and relationship reasonable A duty arises when: • It is foreseeable that the claimant would be affected by the acts or omissions of the defendant • There is sufficient proximity between the Caparo Industries v parties Dickman [1990]1 All ER 568 • The court considers that it would be fair, just and reasonable to impose a duty in all circumstances of the case • Pregnant woman who was asthmatic called a GP to her home as she was very wheezy • The GP called an ambulance asking them to come “immediately please”. • Despite a second call the ambulance took 35 minutes to travel the 6 miles • In the ambulance the woman was given intermittent oxygen but shortly after arriving in hospital she suffered respiratory arrest that resulted in serious brain damage and a miscarriage Decision in Kent v Griffiths and the London Ambulance Service[2000] Court of Appeal held that the London Ambulance service had a duty to attend within a reasonable time once it had accepted the call The delay in attending which was unreasonable and unexplained and led to further injuries The mother was awarded damages Duty of care Patient Mr MacKinlay had vasectomy operation in 1985 and was advised that he no longer needed any form of contraception. In 1988 Mr MacKinlay began a new sexual relationship with claimant who subsequently became pregnant Gave birth to healthy daughter but sought damages three years later for the delivery and upbringing of the child on the basis that she had relied on the negligent advice given to by them to Mackinlay . Decision in Goodwill v British pregnancy Advisory Service [1996] Court of Appeal held that the BPAS had no duty of care to someone other than their patient Mr Mackinlay who was not his wife or current partner “Miss Goodwill was not an existing sexual partner of Mr Mackinlay but was merely .like any other woman in the world, a potential future sexual partner of his” What is a duty of care Quite extensive Covers obtaining consent,, confidentiality, record keeping, diagnosis, advice, treatment planning, execution of treatment, post operative instructions and management of the patient. When does a duty of care arise? • On your way to work, you pass a road accident and notice that a man is still trapped in a vehicle. Do you, as a healthcare professional, have an obligation to stop and render first aid? If you do stop and help and something goes wrong, would you be liable? Medical or dental practitioners owe no legal duty to offer assistance in an emergency outside of their own practice No Good Samaritan law in England but there is in many European jurisdictions with criminal and civil sanctions Richardson v LRC Products The claimant sought damages for Ltd loss of earnings, pain and suffering an the cost of bringing up her daughter after the condom worn by her boyfriend split during sexual intercourse. The claimant argues that the condom was damaged by ozone. The company argued she should have taken the morning after pill and that the ozone damage occurred whilst it was stored in the bathroom cabinet after it split. The case was brought under Consumer Protection Act 1987 consumer protection legislation but the judge held that the claimant had failed to prove that the condom was defective under the act Duty of care Breach of Damages standard of care The man on the Clapham omnibus is a hypothetical reasonable person, used by the courts in English law where it is necessary to decide whether a party has acted as a reasonable person would – for example, in a civil action for What standard is negligence. The man on the expected? Clapham omnibus is a reasonably educated and intelligent but nondescript person, against whom the defendant's conduct can be measured. How does one determine the standard of care? • A psychiatric patient,John Bolam was receiving electro-convulsive therapy (ECT), but the anaesthetist did not administer a muscle relaxant or warn about the 1-2% risk of fractures if not restrained. • As a result, his body went into severe spasm and he suffered hip fractures and dislocations. • The defendant argued that, although some anaesthetists did administer muscle relaxants, it was not common and universal practice amongst the profession. Bolam v Friern HMC (1957) The Bolam Test • “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.” (McNair, J) The Bolam Test • …putting it another way round a man is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion who would take a contrary view” (McNair, J) You are a dentist in general practice and you refer a 13 year old boy to the specialist orthodontist for an opinion on the patient’s developing malocclusion. The orthodontist works part time in the same practice.
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