Clinical Negligence

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Clinical Negligence

• ..The Bare Bones

Ben Troke Elizabeth Clayton
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Negligence

• Legal Term
• Judge made
• Purposive
• To ensure a minimum standard of conduct
• Not to punish
• To compensate the victim

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Essential Elements of Negligence

• Duty of Care
• Breach of Duty
• Causation of loss or damage
• Negligence
• Quantification of that loss

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Duty of Care

• Duty is owed to anyone who is in the reasonable
  contemplation of the person causing harm
• Doctor / Patient clearly meets this
• Contract?

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Breach of Duty (1)
What Standard of Care?

• A professional is required to exercise the
  ordinary skill of a competent medical
  practitioner in his field. A doctor will not be
  adjudged to have failed to come up to the
  required standard if a responsible body of
  medical opinion, albeit a minority one, would
  find his actions acceptable.
• The Bolam Test Bolam v Friern Barnet Hospital
  Management Committee (1957)
• Body of opinion must be responsible
  "reasonable and respectable

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Judged by your Peers?

• Importance of expert medical evidence
• BUT Bolitho
• The court has to be satisfied that the exponents
  of the body of opinion relied on can demonstrate
  that such opinion has a logical basis. In
  particular, in the weighing of risks against
  benefits, the Judge before accepting a body of
  opinion as being responsible, reasonable or
  respectable, will need to be satisfied that, in
  forming their views, the experts have directed
  their minds to the question of comparative risks
  and benefits and have reached a defensible
  conclusion on the matter.
• Bolitho v City and Hackney Health Authority (1997)

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Causation

• Damage must be caused by the breach of duty
• But for test
• Barnett (1969)
• OR Material contribution to risk
• Fairchild (2002)
• BUT too remote?
• McFarlane (1999)

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Burden of proof

• Usually on the Claimant
• Standard of proof is the balance of probabilities

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Quantification of Loss

• Compensation
• - General Damages Pain Suffering and Loss of
  Amenity
• - Special Damages Actual loss until date of
  trial.
• - Future Loss Predicted future loss
• - Bereavement award

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Case study

• Male
• 40 yrs
• Occupation bricklayer
• Semi-professional badminton player
• Fracture of right wrist
• 2 week delay in diagnosis
• Surgery
• 6 months to heal rather than 3
• Residual pain and minor deformity

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Time Limits

• Limitation Act 1980
• 3 years
• Date of knowledge
• Children
• Mental Disability
• Discretion under s33

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Vicarious Liability

• Employers are responsible for acts of employees.
• In the course of employment
• Trust stands behind hospital employees
• NHS Litigation Authority

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Compensation in Practice

• Litigation
• Pre-Action Protocol for Clinical Negligence
• Civil Procedure Rules
• Legal Costs

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Pressure for reform

• - Cost
• Annual cost of clinical negligence expenditure
  rose from 1 million in 1974/75 to 446 million
  in 2001/02
• Outstanding potential liabilities of 5.2
  billion at March 2001
• - Time
• On average a clinical negligence claim takes 5
  years to resolve

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Making Amends - CMOs Proposals

• Investigation
• Explanation Why it happened / Future prevention
• Care package remedial treatment and therapy
• Capped Compensation for PSLA
• Monthly payments for brain damaged children

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The future of litigation
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Questions ???

• Ben Troke
• btroke_at_brownejacobson.com
• 0115 976 6263
• Elizabeth Clayton
• eclayton_at_brownejacobson.com
• 0115 976 6577