Negligence Overview
Negligence within healthcare is an increasingly relevant topic due to the increasingly litigious environment in which we, as healthcare practitioners, operate. In 2017/18 negligence claims cost the NHS £2.2 billion.
In this post we will look at what counts as negligence and begin to look at how this relates to the law and in particular healthcare. In the following posts we will look at two landmark cases in English Law - Bolam v Friern Hospital Management Committee (1957) and Bolitho v City and Hackney AHA (1997).
In England, negligent conduct can result in:
1. Criminal Prosecution
One instance in which this is applicable is the event of a patient dying as a result of negligent conduct. This could result in a charge of manslaughter.
Criminal prosecution also relates to incidents which fall under the Sexual Offences Act 2003.
It is rare that a case of negligence results in criminal prosecution but could occur in examples such as those above.
2. A Civil Action
The claimant could sue for damages on the grounds that a contract has been breached (especially in cases of private practice) or they could rely on the tort of negligence.
3. Professional Disciplinary proceedings or NHS complaints procedure
A complaint can be investigated by a professional body, such as a healthcare regulator, or by the NHS itself - in some cases it could be both.
This could result in disciplinary action and recommendations made about the shortcomings of the practitioner in that particular case if relevant.
In these cases the patient will not receive compensation.
Who can be guilty of negligence?
Let’s begin by looking who can be guilty of negligence under criminal law. In healthcare, any practitioner can be considered negligent and guilty of a criminal offence - however, in practice this rarely occurs.
For negligence to be claimed it needs to be shown that:
(i) The professional was negligent; but also
(ii) That they were so grossly negligent that a criminal conviction is advocated - as we have seen this could be due to gross negligence that resulted in the death of a patient (manslaughter) or offences which fall under the Sexual Offences Act 2003.
Furthermore, Section 20 of the Criminal Justice and Criminal Courts Act 2015 (http://www.legislation.gov.uk/ukpga/2015/2/section/20) created a new offence of ill-treatment and wilful neglect and states that it is a crime for:
“An individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual.”
It goes onto define what it counts as care worker:
“20(3): “Care worker” means an individual who, as paid work, provides—
(a) health care for an adult or child, other than excluded health care, or
(b) social care for an adult,including an individual who, as paid work, supervises or manages individuals providing such care or is a director or similar officer of an organisation which provides such care.”
It continues, defining what is meant by ‘health care’:
“20(5)“Health care” includes—
(a)all forms of health care provided for individuals, including health care relating to physical health or mental health and health care provided for or in connection with the protection or improvement of public health, and
(b)procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition”
In addition to an individual being guilty of negligence, this charge can also apply to NHS trusts under the Corporate Manslaughter and Corporate Homicide Act 2007. This can be seen in the Mid-Staffordshire case which showed sustained negligence in the quality of care from 2005-2008 - you can read more about this and the Francis Report which identified key recommendations of what other NHS trusts can learn from this case by clicking the link below:
The Law of Negligence
Healthcare is a complex field and it is accepted that things will not always go according to plan. The law acknowledges this and this can be seen in English contract law - Thake v Maurice (1986):
Lord Justice Neill stated:
“I do not consider that a reasonable person would have expected a reasonable man to be intending to give a lifetime guarantee. Medicine, though a highly skilled profession, is not, and is not generally considered as being, an exact science. The reasonable man would have expected the defendant to exercise all the proper skill and care of a surgeon in that speciality, he would not in my view be expected the defendant to give 100% guarantee of success.”
In order for a claimant to succeed in a negligence claim three conditions must be met:
1. She is owed a duty of care by the defendant; and
2. That defendant breached that duty by failing to exercise reasonable care; and
3. The breach of duty caused the claimant’s injuries, and that those injuries are not too remote.
We will now consider each of these conditions.
1. The Claimant is owed a duty of care by the defendant
Healthcare clinicians owe a duty of care to their patients. As such they have a duty to provide a reasonable standard of care for their patients.
This also applies to healthcare trusts as we have seen in the above case of the Mid Staffordshire Trust.
2. The defendant breached that duty by failing to exercise reasonable care
The claimant once they can show that they were owed a duty of care, has to establish what standard of care can reasonably be expected and show that the expected standard of care has been breached.
The ‘reasonable [person]’ test - This claims that a doctor must meet a standard of care that a reasonable man can expect from a doctor in that position. This relates to their capacity as a doctor “skilled in that particular art”. So for example, a GP must act like a reasonable GP - substandard care or operating outside of their competencies are examples of what could count as negligence.
The Bolam Test - The Bolam test is based on the case Bolam v Friern Hospital Management Committee (1957) which you can read more about by clicking the button below. This case introduced the standard of care being set by expert witnesses (ie the healthcare profession as opposed to the court).
McNair J:
“ [One] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical [individuals] skilled in that particular art.”
Bolam and Bolitho - Again you can read about the Bolitho v City and Hackney AHA (1997) case by clicking the link below. This case introduced a modification of the Bolam test to add that in some cases a judge can rule that a clinician has been negligent even if they have acted in accordance with the standard of care as judged by a reasonable body of medical professionals. This is incredibly rare and would only arise if the standard of care appeared ‘logically’ incorrect or incoherent to the judge.
If there is any disagreement between expert witnesses - the judge will try to appeal to a ‘gold standard’ within the field.
Res Ipsa Loquitur - This translates to literally mean - “the thing speaks for itself”. This allows, that in certain circumstances, the case of negligence is so obvious that an expert witness is not required. For example, leaving an instrument in a patient following surgery.
3. The breach of duty caused the claimant’s injuries, and that those injuries are not too remote.
Finally, the claimant must establish that the doctor or clinician not only broke their duty to offer the appropriate standard of care, but that it was this that caused their injury. This can be problematic to prove if there are a number of different factors or causes of injury. A standard test used for causation is the ‘but for’ test:
‘But for’ test - ‘But of the clinicians negligence, would the claimant have suffered injury?’
In other words, the claimant must show that their injury was from the clinician’s substandard, or negligent care, and not from some other cause, or that it would not have happened, anyway. Once they have done this they also need to show that the damage was not so remote that it was unforeseeable for the clinician to predict.
The Limitation Process:
In most cases, personal injury claims must be brought by the patient, or the patient's family if they have died as a result of suspected negligence. This is three years from when the patient realised they had been injured.
This is in accordance with Section 14 of the Limitation Act:
“(1)[F1Subject to subsection (1A) below,] in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—
(a)that the injury in question was significant; and
(b)that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c)the identity of the defendant; and
(d)if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”
Summary:
In summary the for a case of negligence to succeed the claimant must prove that the three conditions are met:
1. She is owed a duty of care by the defendant; and
2. That defendant breached that duty by failing to exercise reasonable care; and
3. The breach of duty caused the claimant’s injuries, and that those injuries are not too remote.
This post was based on the following text:
Jackson, E. Medical Law: Text, Cases, and Materials (5th edn). Aug 2019. Oxford University Press. 10.1093/he/9780198825845.001.0001