INTRODUCTION TO CLINICAL NEGLIGENCE

Anthony Barton

Introduction

Clinical negligence law has recently undergone many developments, both substantive and procedural. There have been increases in the value and cost of litigation; there is widespread concern about the legal process and access to justice.

Tort

Tort means a civil wrong which is actionable in private law for damages. The law of tort is largely derived from the common law. Negligence is one type of tort; other torts include: battery, trespass, nuisance, defamation, interference with goods and wrongful imprisonment.

Negligence

To succeed in an action in negligence, a claimant must demonstrate the following elements:

• Duty: that the defendant owed the claimant a duty of care in law.
• Breach: that the defendant breached the duty of care.
• Injury: that the claimant suffered an injury.
• Causation: that the defendant’s breach of duty caused the injury.
• Recoverability: that the type of injury was foreseeable.

The burden of proof is on the claimant. The standard of proof is the balance of probability (more likely than not).

The classic statement on the duty of care was provided in a famous case where a manufacturer of ginger beer was found to owe a duty of care to a consumer. The case involved the presence of a decomposed snail in a bottle of drink which had been bought for the claimant in a café. The claimant alleged that she suffered ill effects. There was no contract between the claimant and the café owner so the action was brought in negligence:

   “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” Who, then, is my neighbour? The answer seems to be - persons who are so closely and directly affected by act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” (Donoghue v Stevenson [1932] AC 562)

This statement possesses sufficient flexibility to be of general application to form the basis of the “neighbour principle”. The concept of neighbour is not concerned with physical proximity but rather with legal proximity which depends on the nature of the relationship between the parties. The relationship between a doctor and a patient gives rise to a duty of care.

Breach of the duty of care

The duty of care is not absolute. The duty is discharged by doing what is reasonable in all the circumstances of the case. Reasonableness is the standard set by law. What then is reasonable? How is it determined? The court needs to hear expert evidence on what is and is not acceptable practice. In prefessional negligence cases the court is assisted by application of the Bolam test:

   “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent...it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art...”

And:

   “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... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.” (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118)

The ultimate determination of what is or is not acceptable lies with the court; the expert evidence as to what is acceptable practice is not conclusive and the court is not bound to accept it even if there is no evidence condemning the practice as unacceptable. There is a requirement that any expert opinion relied upon must be “responsible, reasonable and respectable” (Bolitho v City and Hackney Health Authority [1997] 4 All ER 771).

The Bolam test is, in effect, a rule of evidence and not a rule of law. Furthermore, the principle underlying it is applicable to all skilled professions and not just the medical profession.

Injury

In negligence the claimant must prove that he suffered an injury.

Identifying the injury and separating it from the underlying pre-existing condition can sometimes be difficult, and the definition of injury then merges with the issue of causation.

Causation

Causation is a question of fact. The test by which causation is determined is a question of law. There are traditionally two tests: the “but for” test and the doctrine of material contribution.

(1) The “but for” test

According to the “but for” test, but for the negligence of the defendant the claimant would not have suffered the injury. There are two limbs to the “but for” test: a question of historical fact - what actually did happen; and a question of hypothetical fact - what would have happened if the defendant had not been negligent. The negligence is a causative if there is a material difference in the two outcomes.

Consider this illustration. A night watchman attended casualty one morning with a history of vomiting. The duty nurse summoned the doctor by telephone but he refused to attend. The man left casualty but died a few hours later. It was found that the death was due to arsenical poisoning. There was no reasonable prospect of an effective antidote being delivered before death. The doctor was found to be negligent, but the man’s death was inevitable and would have occurred even if he had received appropriate treatment. The claim failed because the claimant had failed to establish causation (see Barnet v Chelsea and Kensington Hospital Management Committee [1969] QB 428).

The question of causation in medical negligence can sometimes be difficult - one is considering the effect of a medical intervention on an underlying disease process which may itself be changing. The alleged injuries may be indistinguishable from the underlying condition. There may be several concurrent or consecutive agents contributing to the patient’s condition of which only one is the defendant’s alleged negligence.

(2) The doctrine of material contribution

There may be several factors responsible for an injury, including the defendant’s fault; the injury may have occurred without the defendant’s fault, and the defendant’s fault by itself might not have been sufficient to cause injury. Where a breach of duty has caused or materially contributed to the injury complained of, the tortious factor may be considered the cause of the injury (see Bonnington Castings v Wardlaw [1956] AC 613; McGhee c National Coal Board [1972] 3 All ER 1008). This test of causation provides some relaxation of the logical rigour imposed by the “but for” test. The doctrine of material contribution has evolved from cases involving negligent exposure to noxious agents such as industrial dusts. The courts have applied this test in situations involving discrete clinical events (see Bailey v Ministry of Defence and Portsmouth Hospitals NHS Trust [2008] EWCA Civ 883).

(3) The Fairchild exception

The application of the “but for” test and the doctrine of material contribution may mean that a claimant cannot succeed where the case required a just solution. In certain very limited defined circumstances the court may consider that the causal requirements for liability have been satisfied where the defendant has negligently increased the claimant’s risk of injury. Consider where the claimant has developed mesothelioma as a result of having been negligently exposed to asbestos by a number of defendants and the medical evidence does not enable the defendant responsible to be identified (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22). The creation of a material risk satisfied the causal the causal requirements for liability; the exposure to risk was equivalent to making a material contribution. On either view causation was taken to be proven.

(4) Failure to warn cases

The duty to warn is part of a doctor's duty of care to his patient. It arises especially in the context of consent to treatment and the decision of a patient whether or not to undergo treatment. Ordinarily the "but for" test of causation applies: what would the patient have decided if properly advised. It is a hypthetical question determined on a case-by-case basis. However, the courts have decided that where a patient was inadequately warned but unable to state that she would have declined the operation at all, the court considered that the test of causation was satisfied (see Chester v Afshar [2004] UKHL 41).

(5) Loss of chance claims in negligence

Where the evidence on causation is insufficient is satisfy the tradional tests of causality, the claim may be formulated in terms of the loss of a chance in an attempt to obtain compensation. Such claims are well established in contract law (breach of contract is actionable per se without proof of injury, whereas damage is the gist of negligence). In negligence the allegation of injury is formulated as the loss of chance of a cure or better prognosis. However, the courts have rejected such claims in clinical negligence (see Hotson v East Berkshire AHA [1987] AC 750, Gregg v Scott [2005] UKHL 2). Liability in negligence depends on proof a worse outcome, not the loss of chance of a better outcome; liability depends on probability of cause, not possibility of cause. If there was liability for loss of chance in negligence, then any breach of duty would be actionable by reformulating a claim for loss of an outcome as a claim for the loss of chance of that outome. Importing contractual notions of loss of chance into clinical negligence conflates questions of causation , damage, and quantifiction.

Recoverability

As a matter of policy the law imposes some limit on what is compensatable damage. In negligence, a plaintiff can only recover for injuries which are reasonably foreseeable. In practice, what is foreseeable refers to the kind of damage; neither the extent nor the manner of infliction need be foreseeable. There is also the principle that the defendant must take his victim as he finds him (the “egg-shell skull” principle).

Damages

Damages for negligence awarded are compensatory; they are intended to put the victim in the position he would have been in if the tort had not been committed ("damages" refers to compensation; "damage", "loss", and "injury" may be regarded as synonymous and refer to what has been suffered by the victim). Typically the victim suffers a personal injury from which consequential loss flows. Damages include compensation for (1) pain, suffering, and loss of amenity; (2) financial loss, typically expenses and loss of income. Damages may be for past loss and future loss. Damages are also classified as (1) general damages: assessed by the court for pain, suffering and loss of amenity both past and future, and future financial loss; (2) special damages: past financial loss which are specifically claimed.

For policy reasons, mere grief and distress of themselves are not compensatable in negligence; only recognised psychiatric illness is compensatable (the so-called “nervous shock”, a legal term which has little meaning for doctors) and then only when certain legal and factual conditions are satisfied. Compensation for bereavement is regulated by statute.

Limitation

The law imposes time limits within which a claimant must commence proceedings. This is for policy reasons to avoid the undesirability of actions being brought after many years when the evidence is likely to be less cogent. It is also unfair for defendants to have potential actions hanging over them indefinitely.

The acts of limitation reflect the compromise in balancing the conflicting interests of the claimant and the defendant (see Limitation Act 1980). A potential claimant in a medical negligence claim has 3 years from the date of accrual of a cause of action to commence proceedings. Alternatively, he has 3 years from the date of knowledge, whether actual or constructive, of the following facts:

• That the injury was “significant” (sufficiently serious to justify commencing proceedings)
• That the injury was attributable to the act or omission which is alleged to constitute negligence
• The identity of the defendant.

It is knowledge of the facts of the act or omission which constitute the allegation of negligence; knowledge of negligence is irrelevant. The court has discretion to disapply the 3-year time limit; the court performs a balancing exercise in weighing the injustice done to each party.

Time does not run against those who are under a disability (children and those suffering from mental incapacity). Children must commence proceeding within 3 years of attaining majority; persons suffering from irreversible mental incapacity have no time limit (but are subject to the court’s discretion to strike out claims not pursued expeditiously).

Conclusion

To succeed in a claim the claimant must succeed on each of the elements discussed. Some will be in issue (for example, breach of duty, causation), some will not be in issue (for example, the existence of a duty of care) and on some the defendant will put the claimant to proof (the existence and extent of injury). The claimant must also commence his action within the limitation period (or seek to persuade the court to exercise its discretion to disapply the limitation period). In general, the defendant needs only to succeed on one issue to defeat the claimant’s claim.

 

this version 3 October 2009

 

 

 

 
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