Advice on the Case of Clinical Negligence

Introduction

In the healthcare setting, clinical negligence is referred to as a malpractice, mistakes, neglect, and error in judgments made by the healthcare professionals and results in lack or poor standards of care and treatment. Considering this, the purpose of the following assessment is to provide an advice to the NHS Trust against on the case of clinical negligence claimed by Patrick, a patient received treatment from the Trust for knee surgery. The advice will be based on critical depth of knowledge about legal issues with reference to the relevant judgements and case laws.

Duty of Care and Standard of Care

In English common law, the clinical negligence is considered as a tort and claim can be made by a patient or service user against the doctor or hospital for personal injury, damage to health and wellbeing and financial loss. A patient claiming compensation against clinical negligence is required to establish three points, including the accused doctor owed the patient a duty of care; accused doctor was found in breach of duty; and the breach of duty caused harm to the patient.

In the case of Patrick, it is observed that Mr Hunter does not provide sufficient information to the patient regarding the possible side effects associated with knee surgery for repairing ligaments. Despite asking about the risks and side effects of the treatment, Patrick does not receive information from the doctor and doctor dismissed concerns of the Patrick. The case law of SC v. University Hospital Southampton NHS Foundation Trust [2020] exemplified that doctors in hospital found to be negligent in this case for failing to identify whether a child was suffering from meningitis.

Breach of Duty

In this case, doctors missed the actual diagnosis and the child was diagnosed with tonsillitis and negligence were made while following actions to explore the concerns of referring GP and did not consider that the antibiotics administered to the child can counteract with the meningitis’ symptoms. Similarly, in the case of Patrick, Mr Hunter found negligent and guilty of breach of duty of care. However, Patrick needs to prove that his limited movement is a result of

Treatment by Mr Hunter

Mr Hunter’s negligence or might cause by a treatment provided by Dr White on the football pitch. It is advised to Trust that they should ask Patrick to prove or establish strong evidence that his severely limited movement has resulted due to side effects associated with knee ligaments surgery. In support, the findings of a study demonstrates that two area are often challenging to prove that the doctors breached his duty of care and the breach of duty of care results in the clear cause of injury or harm.

Causation

For instance, surgery may have complications even performed up to the standards. In spite of the doctor has performed the surgery appropriately, if a patient experiences a complication after surgery then patient cannot be able to make claim for clinical negligence successfully. In this regard, a Bolam legal test is required to be conducted to evaluate whether a healthcare practitioner has found guilty of clinical negligence.

Bolam lega test is referred to as a peer review approach to evaluate the actions of medical professionals. This test should be applied where the actions of practitioners may have exacerbated the conditions of individuals or caused them to become infected or ill. It is thus advised to Trust that they can ask for Bolam test through which they can prove that they have performed the surgical treatment of knee ligaments in an appropriate way. Nevertheless, there is a possibility that Trust can experience legal claim due to not providing sufficient information to the patient regarding side effects of the surgical treatment.

A case law of Bolam v. Friern Hospital Management Committee exemplified that a claimant has to prove that the defendant was negligent and perform below the required standard of care. In this case, a physician not found guilty of clinical negligence as he has performed in accordance with an acceptable practice and there is a medical opinion that could provide a contrasting view. Hence, where medical opinion is categorised, the test of Bolam evaluates that a physician is not negligent as he comply with one body of opinion instead of another. This is confirmed by the case law of Bolitho v. City and Hackney HA, in which the House of Lords that court body of opinion should evaluate that such an opinion had a logical basis and evaluation required to be conducted on the basis of risk-benefit framework.

Defenses

It is further held by House of Lord in this case that if each medical opinion is able to support logical analysis, then there would be no finding of medical negligence against the healthcare practitioner in selecting one treatment opinion instead of another one. In the case law of Penney, Palmer and Cannon v. East Kent HA, the Court of Appeal proceeded in order to evaluate risks and benefits for determining whether the opinions of doctors had a logical basis. It was held that there was no clinical negligence made by the doctor and performed operation as one of the option of the care treatment. It is thus advised to Trust that Patrick has no legal right to claim for medical negligence against doctor for treating knee ligaments with surgery instead of hydrotherapy.

Nevertheless, it is identified from the judgment made in the Montgomery v Lanarkshire case that patient should be considered as material risk and informed consent should be considered while making decision regarding the treatment. In this case, it was held that a duty to adopt the accepted practice in order to ensure that the patient is sufficiently informed and aware of any material risks associated with any recommended or alternative treatment. With regard to it, the claimant also has to proof that the breach of duty of care made by the defendant has caused the damage to the claimant and damage cause is the solely the outcome of the defendant breach of duty of care. These requirements collectively support causation and are usually referred to as cause in remoteness or law and cause in fact.

Additional Considerations

In the case of Patrick, he has no legal proof or evidence which shows that his limited movement is a result of Mr Hunter’s negligence or might cause by a treatment provided by Dr White on the football pitch. Patrick has to establish a law between breach of duty of care and damage to the health. In support, a study highlighted that in all aspects of clinical litigation within the context of clinical negligence, the burden of proof is on the patient or claimant who must prove causation that should be established on a probabilities’ balance.

It is advised to Trust that they can ask to Patrick for causation under the law of tort by the test of but for. The but for test is applied in both criminal and tort law in order to determine the reason or actual causation of an injury. In the case of Tabet v Gett [2010], the court held that the plaintiff is required to prove that the loss of the better outcome’s chance was due to the negligence of physician for not performing a CT scan before during the diagnosis. The but for test should be positive in order to show a negligence of defendant. Thus, this test would help to determine whether the damage suffered by the Patrick is due to the breach of duty of Mr Hunter.

Conclusion

On the conclusive remarks, the following assessment has evaluated that a patient claiming compensation against clinical negligence is required to establish three points, including the accused doctor owed the patient a duty of care; accused doctor was found in breach of duty; and the breach of duty caused harm to the patient.

Patrick needs to prove that his limited movement is a result of Mr Hunter’s negligence or might cause by a treatment provided by Dr White on the football pitch. It is advised to Trust that they should ask Patrick to prove or establish strong evidence that his severely limited movement has resulted due to side effects associated with knee ligaments surgery in accordance with the applications of Bolam test and but for test.

References

Journal Articles

Beuermann, Christine. "Do Hospitals Owe a So-Called ‘Non-Delegable’Duty of Care to their Patients?." Medical Law Review 26, no. 1 (2018): 1-26.

Cek, Nina. "The Standards of Proof in Medical Malpractice Cases." Medicine, Law & Society 13, no. 2 (2020): 173-196.

Heywood, Rob. "Systemic negligence and NHS hospitals: An underutilised argument." King's Law Journal 32, no. 3 (2021): 437-465.

Kulkarni, Atharva. "An Analysis of the Bolam Test for Identifying Medical Negligence and Its Waning Importance in the Medico-Legal Sphere." Jus Corpus LJ 3 (2022): 845.

Miziara, Ivan Dieb, and Carmen Silvia Molleis Galego Miziara. "Medical errors, medical negligence and defensive medicine: A narrative review." Clinics 77 (2022).

Peters, Sara M. "Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden." Journal of Tort Law 13, no. 2 (2020): 237-257.

Samanta, Ash, Jo Samanta, and Joanne Beswick. "Responsible practice or restricted practice? An empirical study of the use of clinical guidelines in medical negligence litigation." Medical Law Review 29, no. 2 (2021): 205-232.

Tumelty, Mary-Elizabeth. "Exploring the emotional burdens and impact of medical negligence litigation on the plaintiff and medical practitioner: insights from Ireland." Legal Studies 41, no. 4 (2021): 633-656.

Winfield, Percy H. "Duty in tortious negligence." Columbia Law Review 34, no. 1 (1934): 41-66.

Case Laws

Bolam v. Friern Hospital, 1 W.L.R. 583 (1957).

Bolitho v. City and Hackney HA, 1996 All E.R.4 771 (1996).

Penney, Palmer and Cannon v. East Kent Health Authority, 2000 Lloyd (2000).

SC v University Hospital Southampton NHS Foundation Trust [2020] EWHC 1610 (QB)

Montgomery v Lanarkshire Health Board [2015] SC 11 [2015] 1 AC 1430

Tabet v. Gett, 240 C.L.R. 537, 2010 H.C.A. 12 (2010).

Legislation

Common Law

Important Notes:

The purpose of this medical law coursework assignment is to provide advice to the NHS Trust on the case of clinical negligence claimed by Patrick, a patient who received treatment from the Trust for knee surgery. The advice will be based on critical depth of knowledge about legal issues with reference to the relevant judgments and case laws.

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