malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice.
Medical law is the branch of law which concerns the prerogatives and responsibilities of medical professionals and the rights of the patient. It should not be
confused with medical jurisprudence, which is a branch of medicine, rather than a branch of law.
The main branches of medical law are the law on confidentiality, negligence and torts in relation to medical treatment (most notably medical malpractice), and criminal law in the field of medical practice and treatment. Ethics and medical practice is a growing field.
The only outcome for a claimant that brings a successful clinical negligence claim is an award of damages. The Court cannot force a hospital to change its working practices or improve standards, it cannot discipline a health professional nor can it make a health professional apologise.
Negligence is the breach of a legal duty of care owed to one person by another which results in damage being caused to that person. Clinical negligence (often called medical negligence) is concerned with claims against doctors and other healthcare professionals and their employers. In order to succeed in a claim for negligence, the claimant needs to prove that:
- The doctor or other healthcare professional owed a duty to take care of the claimant and not cause injury;
- There was a breach of that duty to take care;
- That breach of duty has caused harm to the claimant; and
- Damage or other losses have resulted from that harm.
Duty of care
Breach of duty
Causation
Damage
Burden of proof
Examples of clinical negligence
Liability of hospitals and doctors
These four elements will be analysed in turn.
Generally speaking there is little difficulty in proving that the doctor or medical team who are responsible for treating a patient owe the patient a duty to take care of him or her. This also applies to other healthcare professionals such as nurses, therapists, laboratory workers, physiotherapists, mental health care teams and the ambulance service - this list is not exhaustive.
It is necessary to show that whatever the doctor did or did not do fell below the standard of a reasonably competent doctor in that particular field of medicine. The test of whether a doctor breached the duty of care owed to a patient is whether he or she has failed to come up to the standard of a reasonable body of other practitioners also skilled in that field. This is known as the "Bolam test". [1] More recently, the court has stated that where a body of medical opinion is relied on to show that a particular doctor was not negligent it is also necessary to show that such medical opinion itself is logical and reasonable. In other words, it is not enough that there is a body of opinion supporting the doctor; the body of opinion itself must be reasonable.
The duty on the doctor to act in a way that is reasonable applies whether the matter concerns treatment, diagnosis or advice.
In some cases, particularly in private healthcare, a patient may have a contract with a doctor in respect of his or her treatment. In the absence of any specific provisions, the standard of care is the same as that described above. However, it should be noted that if a doctor guarantees a particular result then, if the doctor fails to produce that result, the doctor may be in breach of contract even if he or she has not in fact been negligent.
Sometimes the only explanation is that there has been negligence. An example would be where a surgeon amputated the wrong leg. In these sorts of cases there is a presumption that the doctor was negligent and it is then up to him or her to prove otherwise.
In addition to proving that the doctor has failed to come up to the relevant standard of care, the claimant also has to establish that this failure either directly caused the injuries alleged or significantly contributed to them. This element of the claim is very often difficult to demonstrate; it may be easy to prove that the doctor did something wrong but this failure cannot be shown to have caused the patient's injuries. For example, a patient may be able to show that a psychiatrist's diagnosis was wrong, but it is much harder to show that this has contributed to his or her existing mental distress. In some cases there has been a clear breach of duty, but no damage has resulted at all. Again, in this case, no compensation would be payable.
It may sometimes be the case that the treating medical professional or their employer will admit that there has been a breach of duty. However this is not enough to say that that person or employer is liable for any damages. In order to establish liability it must be shown that the breach of duty caused the damage.
A claimant who is able to prove breach of duty and causation then needs to establish that he or she has suffered damage for which a claim can be made. Damage includes physical injury and psychiatric injury, as well as financial loss such as loss of earnings and future healthcare provision. Psychiatric injury is the legal term used by the court. It must be a recognised psychiatric injury, such as post-traumatic stress disorder (nervous shock), anxiety disorder or adjustment disorder. Grief or emotional upset are not injuries for which damages can be awarded.
The court tries to put the claimant into the position he or she would have been in if the negligent act had not occurred. Where physical injury or psychiatric injury has occurred, the court will determine the pecuniary value to be given to the injuries in accordance with previously decided cases.
However, not all losses are recoverable. A court will only award damages for losses which are not too "remote", in other words, which are reasonably foreseeable. For example, if someone is wrongly diagnosed as suffering from schizophrenia and, as a result, is refused a visa for a particular country, he may not be allowed to claim damages for the loss of any business he was hoping to do in that country.
Compensation for any psychiatric or physical injury will include an award for the pain and suffering and "loss of amenity" (or the benefit and enjoyment of life which the claimant has lost). These are known as "general damages". The court will also award a sum for any past and future financial losses that have been caused by the negligence. This will include lost earnings and the costs of care, aids and equipment ("special damages").
It should be noted that awards of general damages can be very low. Where damages are very high most of the money will usually have been awarded for future loss rather than for the actual injury itself. For example, where a serious brain injury has occurred, the costs of future care and lost earnings will make up most of the award.
Thf is a "be burden of proving negligence is on the claimant. The standard of prooalance of probabilities", in other words is it more likely than not that the defendant was negligent.
Clinical negligence includes negligence in relation to surgery, medication, diagnosis, delay in treatment, psychiatric care, psychotherapy, counselling, dentistry and childbirth (including damage to the unborn child). It can also include things that have not been done that should have been done, such as not giving a person the treatment they need, or failing to warn about the risks of a proposed treatment.
It does not matter what kind of treatment is undertaken; if all the elements set out above are present, there is a potential claim for damages.
Doctors and other healthcare professionals may be liable directly for their own negligent treatment. In addition, their employers, usually NHS Trusts, Primary Care Trusts or private hospitals, may be "vicariously" liable for the negligence of their staff.
A GP is liable for his or her own acts, for the acts of his or her employees and, arguably, for anyone else s/he employs to look after patients such as nurses. The General Medical Council requires that all doctors have adequate insurance cover.
If the negligent healthcare professional was a health service employee, such as a hospital doctor, then it would be the Health Authority or Trust that would be liable. If a claim is successful it will be the hospital that pays the damages. Doctors, nurses and other health care staff in the NHS are covered by the NHS Indemnity, which means their employer is responsible for any clinical negligence claims.
Hospitals may also be directly liable where, for example, they have failed to adequately supervise or train their doctors and nurses or where hygiene standards have not been maintained properly.
A clinic or private hospital will take out its own insurance. It will employ staff such as doctors, nurses and administrative staff. The medical staff using the facilities of the clinic will be independent contractors, and therefore, any claim should be against them as individuals. In almost all cases it will be the individual doctor that is sued. As stated above, insurance will be required by the relevant professional organisation.
Often, at the beginning of the investigations it will not be clear who was negligent. However, by the end of the investigations it should be apparent which person or persons were negligent, and therefore, who should be sued. However, sometimes this can be difficult to establish. This may be due to a lack of time to investigate fully the claim, or if it appears that there has been negligence by more than one individual. If this situation arises then a claim should be brought against all those involved to protect the claimant's position.
It is troubling enough that such a small proportion of reported rapes make it to court, worse still that so few victims come forward in the first place. But most disturbing of all is the reason why so many people keep their suffering to themselves: because they do not think they will be believed. That rape is still a dirty secret, hedged about with so much blame and shame that victims feel they cannot come forward, is testament to how far we still have to go.
There are, of course, great legal difficulties in rape trials. Sexual assault is one of the few crimes where proof lies not in the physical facts of the matter, but in the subjective intentions of those involved. One person's word against another's, with no corroborating witnesses, is highly problematic for a legal system predicated on the concepts of innocent until proven guilty and proof beyond reasonable doubt.This is no call for the wholesale abandonment of basic tenets of justice. But simply to shrug our collective shoulders, blame intractable issues of principle, and thereby leave a swathe of victims of violent assault with insufficient legal protection cannot be acceptable in what purports to be a civilized society.The latest statistics make gruelling reading. More than a tenth of Indian women have been subjected to some kind of sexual assault, and 1 in 30 has been raped, Barely a third of victims go to the police, and another third tell no one at all, not even close friends.
In fairness, there has been significant progress in terms of institutional procedures. In many areas of the country, for example, there are now specially trained police officers and court prosecutors for cases of sexual assault. But uneven regional conviction rates only underline the extent to which such practices remain an optional extra rather than standard.
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