Medical Negligence - Case Study Example

Medical Negligence The application of tort law has been largely guided by the application of case precedents rather than sta y law. The salient principles of tort law establishing injury and harm to plaintiffs have been derived on the basis of judgments which have been set out in various cases such as Donaghue v Stevenson1, Anns v Merton Borough London Council2, Murphy v Brentwood DC3 and Caparo v Dickman4, which form the basis for the duty of care that forms the foundation of tort law. The case of Hedley Byrne v Heller5 had further expanded the law of negligence to include misrepresentation in contracts. Medical negligence has however, been a controversial area in tort law, because of the predominance of the legal precedent established in the case of Bolam, which allowed standards to be set by the medical profession. This precedent has been increasingly questioned in the UK itself as well as in other countries, as being violative of fundamental individual rights. The issue of establishment of medical negligence is still changing and no clear cut principle has as yet emerged that could fully replace the Bolam principle. This study proposes to examine the rationale behind the Bolam principle and offers a comparison with other countries that have adopted differing principles of tort law on the issue of negligence by doctors and medical personnel. This study will aim to analyze the differing positions that have been adopted, primarily in the U.K. via the changes to the Bolam principle as compared to the United States and Australia. Literature Review: Medical negligence is the mainly concerned with arriving at a determination of whether the defendant who would be a medical practitioner of some sort, has come up to the standard of care that is owed to the patient6. If it may be determined that there has been a failure to achieve that standard, then the doctor could be held to be guilty of negligence, in much the same way as a failure to maintain the required standard of duty of care would find a defendant guilty under tort law. Medical Negligence in the United Kingdom was governed by the Bolam test, set forth in the case of Bolam v Friern Hospital, which stated that 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....”7 On the basis of this judgement, the question of whether or not a doctor is negligent is determined by whether or not his peers are of the view that s/he has acted within the parameters of standard practice. This principle changed in subsequent cases, where the Courts held that while the professional opinion of the medical experts was to be taken into account, they had “to be examined by the court” to see if they “stand up to analysis”.8 In a recent landmark medical decision, a nineteen month old child known as Baby M, with a severe medical condition was being kept alive on a ventilator and the High Court ruled that doctors could not switch off the ventilator keeping it alive.9 This case has highlighted the ethical issues surrounding the question of life sustaining treatment when it is based upon the standards deemed appropriate by medical personnel, especially in the case of patients who are not able to express their autonomy in medical decision making, such as babies and mentally incapacitated individuals. As a result, the Bolam principle has been increasingly challenged in the establishment of medical negligence on the grounds that individual autonomy of patients may be neglected. In the United States, the Bolam principle did not find easy acceptability because the core belief is that the patient always has a fundamental right to make informed decisions about the procedures affecting his or her own body.10 This also draws in the associated principle of informed consent of the patient, such that when tests or procedures are performed on the patient with his or her express consent, they will be deemed to be unlawful. According to Justice Cardozo, an American judge, “Every human being of adult years and sound mind has a right to determine what should be done with his own body.”11 On this basis, it would be the violation of fundamental individual rights by medical personnel which would be the criterion based on which negligence would be determined, rather than the parameters of what would be considered appropriate medical action according to the experts. Keown points out that when the establishment of medical negligence is dependent upon judicial deference to medical opinion, it becomes especially objectionable where the clinical competence is a questionable issue.12 He highlights the example of the ruling in the case of Re F, where medical opinion was the basis upon which it was deemed legal to sterilise an incompetent adult, in his own best interests although it infringed on his autonomy. The Australian courts have rejected the Bolam principle set out in the United Kingdom that the standards set by the medical profession was an acceptable way to determine what the entitlements of a patient were13. It has been argued in Australia that the principle is derived on the basis of class distinctions in English society, because the Courts representing a higher class, are unwilling to support the demands of the common population against another profession, i.e., medicine. In a case in South Australia, the deficiencies in the reasons for adopting such an approach were pointed out and the Court stated that the criteria on which negligence should be determined should not be based upon standard medical practice, because such standards may develop to further the best interests of the profession rather than to further the interests of the patients. Kirby further argues that the issue of medical negligence has assumed different proportions since the standard was set through the case precedent in Bolam, because public knowledge about medical issues is more widespread and the former awe of the medical profession has declined, so that patients tend to question court and medical decisions to a higher degree.14 McK Norrie argues that the standards for determining medical negligence that were established in Bolam are bad in principle. He cites the case of Cavanagh v Ulster Weaving Co Ltd15 where employers were held to be liable for not taking good care of their employees and argues that there is no reason for not extending the same principle to doctors who fail to take good care of their patients as well. The failure to disclose information on the risks associated with medical procedures would entail a level of negligence that would be subject to the same stringent standards required under the law in other areas of tort. This may be seen in the case of Hunter v Hanley16, wherein it was held that assessing and categorizing all doctor actions within the scope of the normal accepted medical practice would be disastrous, since all inducement to progress in medical science would be destroyed. Some incidents might require a deviation from normal practice, hence Courts should not be bound by the standards of appropriate medical conduct in determining whether or not negligence has occurred.17 Medical arbitration is another method of dealing with medical negligence claims. Doctors may retain an arbitrator to tackle disputes out of court, where a neutral third party serves as the mediator of the dispute. The incidence of use of binding arbitration rather than the court system to resolve disputes has become more common and many doctors now require patients to sign such binding arbitration agreements (www.medicalnewstoday.com). The advantages of such arbitration agreements are that it can avoid expensive litigation, but according to opponents, the secrecy involved in such agreements can mean that it is weighted against consumers and it can be harder to track complaints and build legal precedents through this process. Arbitration can provide a significant advantage in the resolution of disputes arising out of claims on medical negligence because it preserves the secrecy and confidentiality of medical information, and such agreements are signed before the commencement of the medical procedure. Arbitration agreements are very attractive for both patients and doctors because they cost less money and take less time as compared to a trial (www.24/7pressrelease.com). But they also have some disadvantages; for instance, arbitrator decisions are final and are not open to appeal unless there are allegations of unfairness or misconduct. Secondly, mediation agreements do not conform to a prescribed set of guidelines, while court trials are more straightforward in terms of expectations from the defendants and plaintiffs. Methodology: The proposed methodology for this study is a purely qualitative, library based analysis. Since the issue under study is tort law, focusing primarily on medical negligence, a quantitative or a case study based approach may not be relevant. While the focus of the quantitative approach is mainly on numerical data, qualitative analysis emphasizes process and meanings. The quantitative paradigm views reality as objective and singular, reality is subjective and multiple under the qualitative paradigm (Hussey and Hussey, 1997:48). It is based upon constructivism and multiple truths are assumed under this approach (Sale et al, 2002). Reality could assume various shapes and forms, because reality is viewed as being socially constructed rather than one objective reality. This would be especially relevant in examining medical negligence and the point at which it should become actionable. An assessment of the viewpoints and justifications offered by judges in different cases in different countries could help to shed new light into the salient weaknesses of the Bolam standard and shed some insight into the important issues to be considered if medical negligence is to be assessed on the same basis and standards which are applied to other areas of tort. Conclusions: This study aims to assess the merits of the precedent established in the Bolam case and to arrive at a conclusion as to why it is not relevant. This would also involve an examination into the standards that have been accepted in other countries on medical negligence in general and the grounds that have been posed in those countries for the non applicability of the Bolam principle. It appears that restricting assessment of medical negligence within the parameters of expert medical opinion may not necessarily be adequate. It may also be necessary to take individual rights into consideration as well. References: BBC News Report, 2006. “Reaction to right-to-life ruling”, http://news.bbc.co.uk/1/hi/health/4809614.stm; Keown, John, 1994. “Burying Bolam: Informed consent down under”, The Cambridge Law Journal, 53(1):16-19 Kirby, Michael, 1995. “Patients Rights: why Australian courts have rejected “Bolam”, Journal of Medical Ethics, 21(1):5-8 McK Norrie, Kenneth, 1985. “Medical negligence: who sets the standard?”, Journal of Medical Ethics, 11(3): 135-137 “Medical arbitration agreements: Pros, cons and causes for dismissal”, Retrieved July 31, 2010 from: http://www.24-7pressrelease.com/press-release/medical-arbitration-agreements-pros-cons-and-causes-for-dismissal-143844.php Teff, Harvey, 1998. “The standard of care in medical negligence – moving on from Bolam?” Oxford Journal of Legal Studies, 18(3): 473-484 “Use of binding arbitration to resolve medical malpractice claims”, Retrieved July 31, 2010 from: http://www.google.co.uk/#hl=en&source=hp&q=medical+arbitration&aq=f&aqi=&aql=&oq=&gs_rfai=&fp=94dc2184ded5623c Cases cited: Anns v Merton London (1978) AC 728 Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 at 587 Caparo Industries plc v Dickman and others [1990] 2 AC 605 Cavanagh v Ulster Weaving Co Ltd (1960) AC 145 Donaghue v Stevenson (1932) AC 562 Hunter v Hanley (1955) SLT 213 Hedley Byrne v Heller (1963) 2 All ER 575 Knight v the Home Office (1990) 3All ER 237 Loveday v Renton (1990) 1 Med LR 117 Murphy v Brentwood DC (1991) 1 AC 398 HL Schloendorff v Society of New York Hospital, 211 NY 125 Read More