Medical Negligence and Its Basic Characteristics Essay

Medical negligence may be regarded as substandard health care provided by a clinician that directly causes a patient’s physical, emotional, or financial damages. It involves various unprofessionally handled activities that lead to tortious claims and even criminal liabilities. Incorrect treatment, wrongful diagnosis, and surgical mistakes are among the most common types of medical negligence. At the same time, in order to sue the defendant, the pursuer should prove that medical negligence has occurred. There are the following essential characteristics of medical negligence that will be examined and analyzed in this paper:

• The defendant owed the duty of care to the plaintiff;
• The duty of care should be breached;
• The breach directly caused the plaintiff’s damage.

Duty of Care

Regarded as a noble occupation, the medical profession helps in maintaining health and preserving life. In general, a patient approaches a particular medical setting or a health care provider on the basis of its/his reputation. Attending a hospital, an individual traditionally has two-fold expectations – first of all, doctors and other clinical staff are expected to deliver the most appropriate health care with all their experience and competency. Moreover, they are responsible for non-maleficence: any patient should not be harmed in any manner because of carelessness, reckless attitude, or negligence. It goes without saying that a medical professional cannot be physically ready all the time to save patients/ However, he should use all specific skills and knowledge in the most suitable manner considering the interest of every person entrusted his life.

When the law mandates the duty of care and carefulness, carelessness may lead to the breach of this duty, or medical negligence. It is based on the tortious principle of general negligence and was propounded by Lord Atkin in the case of Donoghue V. Stevenson in 1932.¹ According to the case’s materials, Mrs May Donoghue met her friend at the Wellmeadow Café on August 26, 1928, who bought her an ice cream and a bottle of ginger beer for an iced drink. The bottle was dark opaque – thus, its content was invisible. After Mrs Donoghue had drunk and poured over an ice cream most of the beer, she noticed a part of a decomposed snail that was in a bottle.² After several days, the pursuer became sick and was diagnosed with shock and severe gastroenteritis.

Later, Mrs Donoghue decided to take legal action against the beer manufacturer Mr Stevenson even if her chances to succeed were considerably limited. She did not have any legal contract with Mr Stevenson to sue him for its breach, did not buy the drink by herself, and could not prove that the manufacturer knew that the beer was defective. Thus, the argument of Mrs Donoghue was dismissed by the Scottish Court of Session, Second Division that stated that the manufacturer did not owe a duty of care to his consumers. However, the pursuer has managed to address the House of Lord with an appeal, and in 1932, Lord Atkin established a decision that may be regarded as the foundation of modern negligence law. According to it, a manufacturer owes a duty of care to customers and is responsible for the quality of his products.

At the same time, the characteristics of negligence in relation to the duty of care were later updated through the Caparo Industries v Dickman [1990] 2 AC 605 case. It has established the Caparo test in order to identify negligence.³ It includes three parts: if the pursuer’s harm is caused by the defender’s actions it should be reasonably foreseeable, imposing liability should be just and fair, and there should be proximity between parties. The unforeseeable responsibility was also reflected in the Goodwill v BPAS [1996] 2 All ER 161 case. The claimant could not prove the defendant’s negligence after being pregnant from a man with a vasectomy arranged by the defendant as a direct impact on the pursuer’s state was not proved.⁴

In turn, medical negligence may be defined as “the breach of a legal duty to take care of a person who is suffering from illness and results in damage, undesired by the defendant to the plaintiff”.⁵ In other words, it constitutes a medical practitioner’s omission or failure to act that falls below the standards of health care delivery and leads to the patient’s considerable injury or even death. Although such incidents should never happen, they remain prevalent – according to the Press Association, more than 1000 patients in England have suffered from medical negligence and related mistakes in the past four years.⁶ In general, when the defender fails to perform in a way a similarly trained health care provider would do, the pursuer may become a victim of negligence.

At the same time, medical negligence differs from general negligence in relation to the law regardless of similarities in their basic structures. Thus, in general negligence, the breach of duty occurs when a defender does not achieve a particular standard on the basis of the actions of a “reasonable person.” The concept of reasonableness is an artificial objective standard adopted by the law to determine the breach of a duty that involves the ignorance of the defendant’s realities in a specific situation. In turn, medical negligence implies the breach of a duty of care when a medical specialist acts not like a reasonable health care provider taking into consideration the situation’s realities.

In addition, medical negligence differs from medical malpractice even if these terms are frequently used as synonyms. Medical negligence does not include any element of intent – instead, it involves an omission or mistake made by a medical provider that results in a patient’s harm. In the case of negligence, a health care specialist does not commit his actions knowing that it may cause harm or with an intention to injure a patient. In turn, medical malpractice always involves intent, however, in a slightly different meaning in comparison with commonly accepted one. In the case of medical malpractice, the intent is an act or omission known by a health care provider as potentially harmful.⁷

In other words, a clinician is aware that his actions are not related to the health care delivery of the most appropriate quality and he may fail causing harm to a patient. It goes without saying that he does not want to harm the patient intentionally but he acts realizing the risk of the patient’s injury or even death.

However, in order to form a legal claim and establish the occurrence of medical negligence, it should be approved that a medical professional owed a duty of care to a patient, a breach of this duty has occurred, and the patient’s injury directly results from the practitioner’s actions. As a matter of fact, all health care specialists who provide treatment to patients entering a specific doctor-patient relationship owe an obligation or a duty of care to them.⁸ When patients are registered in a hospital for receiving treatment, a duty of care should be necessarily implied. Moreover, it is a civil right of any patient to receive full information concerning treatment from health care providers.⁹ Thus, a doctor-patient relationship may be regarded as a contract due to payment of fee, informed consent, and providing treatment.

As previously mentioned, all medical professionals who are responsible for the diagnosis and treatment of a particular patient are covered by the duty of care to him or her. On the one hand, senior health care providers may be vicariously liable for the negligence of junior health carers. At the same time, if a mistake was made by any specialist who was not directly involved in health care delivery, he or she still owes the patient a duty of care and will be legally responsible for negligence. On the basis of a considerably extreme view, medical practitioners’ duty of care “ought not to be limited only to the patients under their direct management but to be extended to any patient whom they come across in their professional environment”.¹⁰ In this way, health care providers are responsible for the appropriate treatment of all patients within clinical premises. For instance, ambulance services owe patients the duty of care and are legally responsible for the breach if it results in the patient’s harm.¹¹ This approach helps minimize both direct and vicarious liability of clinicians.

Finally, for a legal claim, the pursuer should prove the case’s aspects on the balance of probability. In fact, the tort of the negligence of the common law is based on a rule of causation.¹² In other words, in the case of medical negligence, the fact that the patient’s harm is a direct consequence of a health care provider’s actions should be proved. An exception exists for ambiguous causation which means that harm may be caused by multiple reasons.

Breach of the Duty of Care

Proving a health care provider breached his duty of care may be regarded as one of the most resource-intensive and difficult parts of the case related to medical negligence.¹³ To be precise, the pursuer should prove that the defendant failed to act according to the most appropriate practices for his field, and any reasonable medical specialist of the same field would have acted differently in the same situation.¹⁴ For instance, in order to prove the breach, an injury lawyer may consult with another expert in the same field of medicine and get testimony that the standards of care were not followed. In other words, the fact that a competent health care provider would not have done the same and the mistake occurred should be proved.

The main challenge of proving the breach is in subjectivity that cannot be regarded as negligence even if a patient’s outcome is not ideal. For example, in the case of a rare disorder, several physicians may determine different diagnoses trying to identify the reason for a patient’s condition. In general, the most typical breaches of duty that presuppose the defendant’s liability include:

• Prescribing the wrong medication or giving dangerous doses even if the medication is right;
• Making the wrongful conception or determining the wrong diagnosis that a competent and reasonable doctor would not have made;
• Performing unnecessary procedures deliberately;
• Making surgical mistakes that a competent health care provider could avoid following the best practices and the standards of care.

Harm Resulted from the Breach

In the case of medical negligence, it is not enough to prove that a medical professional has breached the duty of care and made a mistake. It is essential to prove that the patient suffered legally-recognized harm directly caused by the doctor’s actions. Although the pursuer tends to determine the likelihood of causation in his favor, the direct impact of the breach should be proved.¹⁵ At the same time – the plea of res ipsa loquitur should be also available – in other words, it is not necessary to prove negligence when damages caused by this negligence are obvious and may be easily observed. These damages may be physical, such as reduced quality or quantity of life or disfigurement, emotional, and financial in nature. When medical negligence is proved in accordance with its basic characteristics, a remedy for a pursuer should be available.

As previously mentioned, a health care provider owes the duty of care to all patients in a medical setting regardless of the absence of direct interaction. At the same time, the duty may be owed to non-patients if they are affected by the clinician’s mistake that caused harm. In MacFarlane and Another v Tayside Health Board: HL 21 Oct 1999, the McFarlanes sued the medical facility responsible for negligence.¹⁶ After a vasectomy operation determined by the couple’s unwillingness to have more than four children they have already had, Mr McFarlane was negligently advised by the health board that contraceptives were not necessary anymore. Relied on this wrongful recommendation, Mr and Mrs McFarlane became the parents of their fifth child. Although the child was loved, welcomed, and accepted, parents claimed damages connected with pregnancy and birth and financial costs related to her raising.

The Lord Ordinary of the Outer House initially rejected both claims stating that pregnancy could not be regarded as physical injury and the benefits of parenthood were more substantial than financial losses. However, his decision was dismissed by the Court of Appeal that relied on conventional negligence principles and did not find any reason on the basis of which the liability of the board could be denied. Wrongful conception was defined as negligence and an infringement of the McFarlanes’ family planning right, and both claims were approved.

Medical negligence occurs only when the plaintiff’s harm is directly caused by the defendant’s actions. In the case of non-patients that may emotionally suffer from medical negligence, there should be several rules followed. First of all, if the defender’s breach causes a traumatic event, it should be observed by the plaintiff immediately. In addition, the condition of the plaintiff should differ from shock caused by the observance of a traumatic event. Thus, in the Taylor v Somerset Area Health Authority (1993) 16 BMLR 63 case, the pursuer’s claim was not approved.¹⁷ Mrs Taylor was distressed and shocked after knowing that her husband died as a result of a medical specialist’s negligence. However, her emotional damages cannot be classified as the consequence of the defendant’s actions. In addition, a hospital owes the duty of care to non-patients only if they are in an identifiable at-risk group.¹⁸

In the Sion v Hampstead Health Authority [1994] EWCA Civ 26 case, the claimant sued the hospital for a psychiatric injury he had received while remaining at his heavily injured son’s bed whose condition was wrongfully diagnosed.¹⁹ The claim was not approved and the appeal was subsequently dismissed as well – the direct impact of clinicians’ actions on the claimant’s state was not proved. In other words, he was injured by his son’s deterioration that was generally expected. In addition, this case cannot pass the Caparo test – the pursuer’s harm was not reasonably foreseeable and there was no proximity between parties. At the same time, the pursuer’s claim was approved in the Page v Smith [1996] AC 155 case.²⁰ The claimant’s physical injury was reasonably foreseeable and was caused by the defender’s negligence.

Reference List

Adejumo O A and Adejumo O A, ‘Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria’ (2020) 34(44) The Pan African Medical Journal 1.

Bryden D and Storey I, ‘Duty of Care and Medical Negligence’ (2011) 11(4) Continuing Education in Anaesthesia, Critical Care & Pain 124.

Byrne P, ‘NHS ‘Never Events’ a Disgrace, Says Patients Association’ (BBC News, 2016). Web.

Caparo Industries v Dickman [1990] 2 AC 605.

Cheluvappa R and Selvendran S, ‘Medical Negligence – Key Cases and Application of Legislation’ (2020) 57 Annals of Medicine Surgery 205.

Donoghue v Stevenson [1932] AC 562.

Goodwill v BPAS [1996] 2 All ER 161.

Kent v Griffiths (No 3) [2001] QB 36.

MacFarlane and Another v Tayside Health Board: HL 1999.

Nilegaonkar S and Kulkarni P, ‘Medical Negligence’ (2019) 40 Indian Journal of Medical and Paediatric Oncology 552.

Oyebode F, ‘Clinical Errors and Medical Negligence’ (2013) 22(4) Medical Principles and Practice 323.

Page v Smith [1996] AC 155.

Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351 CA.

Shali S, ‘Medical Negligence in India: Current Issues and Ethics’ (2017) 3(6) International Journal of Advance Research, Ideas and Innovations in Technology 798.

Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871.

Sion v Hampstead Health Authority [1994] EWCA Civ 26.

Steel S and Ibbetson D, ‘More Grief on Uncertain Causation in Tort’ (2011) 70(2) The Cambridge Law Journal 451.

Taylor v Somerset Area Health Authority (1993) 16 BMLR 63.

Wilsher v Essex Area Health Authority [1987] QB 730.

Footnotes

1. Oludamilola Adebola Adejumo and Oluseyi Ademola Adejumo, ‘Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria’ (2020) 34(44) The Pan African Medical Journal 1.
2. Donoghue v Stevenson [1932] AC 562.
3. Caparo Industries v Dickman [1990] 2 AC 605.
4. Goodwill v BPAS [1996] 2 All ER 161.
5. Sonia Shali, ‘Medical Negligence in India: Current Issues and Ethics’ (2017) 3(6) International Journal of Advance Research, Ideas and Innovations in Technology 798.
6. Peter Byrne, ‘NHS ‘Never Events’ a Disgrace, Says Patients Association’ (BBC News, 2016).
7. Sujit Nilegaonkar and Padmaj Kulkarni, ‘Medical Negligence’ (2019) 40 Indian Journal of Medical and Paediatric Oncology 552.
8. Rajkumar Cheluvappa and Selwyn Selvendran, ‘Medical Negligence – Key Cases and Application of Legislation’ (2020) 57 Annals of Medicine Surgery 205.
9. Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871.
10. Oludamilola Adebola Adejumo and Oluseyi Ademola Adejumo, ‘Legal Perspectives on Liability for Medical Negligence and Malpractices in Nigeria’ (2020) 34(44) The Pan African Medical Journal 2.
11. Kent v Griffiths (No 3) [2001] QB 36.
12. Sandy Steel and David Ibbetson, ‘More Grief on Uncertain Causation in Tort’ (2011) 70(2) The Cambridge Law Journal 451.
13. Daniele Bryden and Ian Storey, ‘Duty of Care and Medical Negligence’ (2011) 11(4) Continuing Education in Anaesthesia, Critical Care & Pain 124.
14. Femi Oyebode, ‘Clinical Errors and Medical Negligence’ (2013) 22(4) Medical Principles and Practice 323.
15. Wilsher v Essex Area Health Authority [1987] QB 730.
16. MacFarlane and Another v Tayside Health Board: HL 1999.
17. Taylor v Somerset Area Health Authority (1993) 16 BMLR 63.
18. Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351 CA.
19. Sion v Hampstead Health Authority [1994] EWCA Civ 26.
20. Page v Smith [1996] AC 155.