How is negligence applied to health care law?

HEALTH CARE LAW & ETHICS FUNDEMENTAL CONCEPTS

HOW IS NEGLIGENCE APPLIED TO HEALTH CARE LAW?

Negligence is the most important field of medical law as it governs most activities of modern society but it was first established in tort law and the principles that govern it were later related to medical law. In a nutshell, to establish negligence, you have to show the "ABCs" of negligence: (a) a duty of care must exist between the person injured and the person responsible for that injury; (b) conduct of the defendant fell short of that duty of care; and (c) resultant damages.

The law of negligence is one aspect, indeed a very major aspect, of the law of tort. One way in which a person can become legally liable to another by breaking a contract. A contract is an agreement which the law is prepared to enforce, and this “enforcement” amounts at least to the consolation of getting damages-money-if the agreement is broken. The law of tort is concerned also with the award of damages; but here there has been no agreement between the people who find themselves legally entangled. Indeed, in the majority of tort cases there has been no relationship at all between the parties before the “wrong” is done. Instead the law creates a legal relationship between the person who does something wrong and the other person who suffers from it.

(Finch.J, 1981)

"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." (Donoghue vs. Stevenson, a 1932 English case.)

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done." (Blyth v. Birmingham Water Works (1856) 11 Ex. 781)

“The quality or state of being negligent; lack of due diligence or care; omission of duty; habitual neglect; heedlessness.” (Merriam-Webster Dictionary of Law)

Not only are people responsible for the intentional harm they cause, but their failure to act as a reasonable person would be expected to act in similar circumstances (i.e. "negligence") will also give rise to compensation. Negligence, if it causes injury to another, can give rise to a liability suit under . Negligence is always assessed having regards to the circumstances and to the standard of care which would reasonably be expected of a person in similar circumstances. Everybody has a duty to ensure that their actions do not cause harm to others. Between negligence and the intentional act there lies yet another, more serious type of negligence which is called . is any action or an omission in reckless disregard of the consequences to the safety or property of another.

“The breach of an obligation (duty) to act with care, or the failure to act as a reasonable and prudent person would under similar circumstances. For a claimant to recover , this action or failure must be the “proximate cause” of an injury, and actual loss must occur. Among possible defences to a negligence action are that the claimant assumed the risk of injury (e.g., of being hit by a batted ball at a baseball game), or that the claimant brought on the injury by his or her own negligence. Most negligent acts are inadvertent; between them and fully intentional acts lay forms of conduct variously termed willful, wanton, or reckless. Deliberate judgments that are dangerously careless (e.g., faulty building design) may, however, be considered acts of negligence. The obligation to act with care may arise out of a relationship established by , as in the duty assumed by a common carrier (e.g., a railroad) in preserving goods and passengers from damage or injury. But the law also supposes that all persons in the ordinary course of conduct have a duty to avoid inflicting injuries on others. In all no contractual situations this duty is to act as a “reasonable, prudent person” would act. Injury that results despite such conduct or from circumstances beyond human control (see, e.g., ) is not compensable,

although the doctrine of strict makes those engaged in certain trades and services liable despite non-negligent conduct.

(Columbia Encyclopaedia, Sixth Edition, Copyright, 2004.)

Kennedy and Grubb argue that ‘medical law’ is concerned with relationship between and patients however to a lesser extent hospitals and other institutions in relation to patients. The common issues that arise are respect for justice, respect for dignity, respect for autonomy, respect for personhood and persons, truth telling, confidentiality, respect for autonomy and consent.

(Kennedy and Grubb 2000)

Establishing a duty of care is not usually a major problem in health care cases. Where ...

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although the doctrine of strict makes those engaged in certain trades and services liable despite non-negligent conduct.

(Columbia Encyclopaedia, Sixth Edition, Copyright, 2004.)

(Kennedy and Grubb 2000)

Establishing a duty of care is not usually a major problem in health care cases. Where patients are in hospital, the staff are clearly responsible for their care. In general practice, it is obvious that doctors have a duty of care to those on their lists. Some times, however, things are less straightforward. It is more difficult to ascertain when professionals are responsible for people who are not already their patients. Candidates might be the victims of accidents, people who are placed at risk of infection when a patient is discharged from hospital, a woman who goes into labour in a public place. The legal test for the extent of duties of care in negligence is designed to answer this sort of question. The first step is to consider whether it is reasonably foreseeable that the victim could be affected by the defendant’s actions. Where health professionals could have foreseen that what they did would affect other people, then they may have a duty of care towards them. However, that does not mean that they are always bound to do what is best for everyone that they know maybe affected. That is an aspect of ‘standard of care’ issue.

(Montgomery .J, 2003)

The confusion caused by the application of the doctrine of privy of contract where physical injury is caused to the plaintiff by the defendant’s negligent act was dispelled by the House of Lords in Donoghue v Stevenson, 1932.

It will be seen, therefore, that the duty of care is established by putting in the defendant’s place a hypothetical ‘reasonable man’ and deciding whether the reasonable man would have foreseen the likelihood or probability of injury, not its mere possibility. The test is objective not subjective, and the effect of its application is that a person is not liable for every injury which results from his carelessness. There must be a duty of care.

(Keenen.D, 1995)

The standard of care was established in Bolam v Frien HMC (1957) it was held 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 body skilled in that particular act,” (Montgomery 2003) however, if defendant’s actions are within a range of acceptable practice no highest expert skilled practice.

The law does not impose liability just because an accident happens. It makes allowances for what it calls “mere inadvertence.” Thus, not everyone becomes legally liable just because they cause an accident. Events may simply have conspired against them; it is, as it were, their misadventure. Even if another person were to be harmed by an accident caused by mere inadvertence. It would be intolerable if the hapless person whose actions in fact led to the accident had to pay out damages on every such occasion. There has to be carelessness, and not just any carelessness but only that which the law will, in the event, brand as a “breach of duty” or a breach of the legal duty of care which it says was owed by the person who caused the injury or harm to the person who suffered it. While it is a common place that nurses, doctors and all those engaged in medical care in the health services owe their patients a legal duty of care, it is by no means every act which causes someone harm which will amount to a breach of this duty. True, a duty of care exists; and, also true, harm or injury may occur to someone such as a patient or perhaps a fellow employee. But merely because someone gets harmed or injured does not mean that the harm or injury amounts to the breach of the legal duty of care.

(Finch.J, 1981)

It is necessary for the claimant to show that he has suffered some loss, since negligence is not actionable in itself. A breach of contract with no loss will at least give an action for nominal damages but not so in tort law. Although the burden of proof in negligence normally lies on the claimant, there is a principle known as re ipsa loquitur (the thing speaks for itself), and where the principle applies the court is prepared to lighten his burden. The principle applies wherever it is so unlikely that such an accident would have happened without the negligence of the defendant that the court could find, without further evidence, that it was so caused. It seems also to be commonsense rule in that there is no point in asking the claimant to prove negligence because he has no view of what happened. However two conditions should be taken into consideration: a) the thing or activity causing the harm must be wholly under the control of the defendant or his servants, b) the accident must be one which would not have happened if proper care had been exercised. It should note that just because the principle res ipsa loquitur applies, it is not certain that the claimant will succeed; the court is not bound to find the defendant negligent. The defendant may be able to prove how the accident happened and that he was not negligent. He may not know how the accident happened but he may be able to prove that it could not have arisen from his negligence. Finally, he may suggest ways in which the accident could have happened without his negligence, and the court may find his explanations convincing.

(Keenen.D, 1995)

The case that is always brought up with negligence is Donoghue v Stevenson (1932). This case was based on; the appellant’s friend purchased a bottle of ginger beer from a retailer in Paisley and gave it to her. The respondents were the manufacturers of the ginger beer. The appellant consumed some of the ginger beer and her friend was replenishing the glass, when, according to the appellant, the decomposed remains of a snail came out of the bottle. The bottle was made of dark glass so that the snail came out of the bottle.

The bottle was made of dark glass so that the snail could not be seen until most of the contents had been consumed. The appellant became ill and served a writ on the manufacturer’s claiming damages. The question before the House of Lords was whether the facts outlined above constituted a cause of action in negligence. The House of Lords held by a majority of three to two that they did. It was stated that a manufacturer of products, which are sold in such a form that they are likely to reach the ultimate consumer in the form in which they left the manufacturer with no possibility of intermediate examination, owes a duty to the consumer to take reasonable care to prevent injury. This rule has been broadened in subsequent cases so that the manufacturer is liable more often where defective chattels cause injury. The following important points also arise out of the case.

(Keenen.D, 1995)

It was in this case that the House of Lords formulated the test that the duty of care in negligence is based on the foresight of the reasonable man.

As Lord Atkin said: the liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’ is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complaints and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law is my neighbour? The answer seems to be- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

(Keenen.D, 1995)

Lord Macmillan’s remark in his judgment that the categories of negligence are never closed suggests that the tort of negligence is capable of further expansion.

The duty of care with regard to chattels as laid down in the case relates to chattels not dangerous in themselves. The duty of care in respect of chattels dangerous in themselves.

The appellant had no cause of action against the retailer in contract because her friend bought the bottle, so that there was no privity of contract between the retailer and the appellant. Therefore terms relating to fitness for purpose and merchantable quality, now implied into such contracts by the Sale of Goods Act 1979, did not apply here.

(Keenen.D, 1995)

Five important points emerged from this case these were:

Negligence is a separate tort in its own right.
An action for negligence can exist whether or not there is a contract between the parties.
An action for negligence will succeed if the claimant can prove; a duty of care is owed by the defendant to the claimant; a breach of that duty by the defendant; resulting damage which is not too remote.
In order to establish the existence of a duty of care the ‘neighbour principle’, based on reasonable foresight, must be applied.
A manufacturer of drinks owes a duty of care to the consumer not to cause injury by negligently allowing foreign bodies to contaminate those products.
NB Donoghue v Stevenson only provides a remedy to consumers in the case of products which are likely to cause injury to health. It does not offer a remedy for shoddy or unmerchantable goods. That is the province of contract. (Harpwood.V, 1993)

Allegations of negligence in the medical context are more frequent and serious, a high standard of proof of negligence is required so that an error of clinical judgement does not of itself amount to negligence. Thus in Whitehouse v Jordan (1981) the claimant was born with severe brain damage following a difficult birth and sued the defendant, a senior hospital registrar, for damages. The defendant had used forceps to assist delivery of the claimant and it was alleged that he pulled too hard and too long. It was held by the Court of Appeal and later by the House of Lords that if the damage had indeed been caused by the defendants use of forceps the most that could be said with the benefit of hindsight was that he had made an error of clinical judgement which did not of itself amount to negligence, so that the claimant’s claim failed.

(Kenned, 1995)

A reasonable person is not expected to anticipate unknown risks. Unforeseeable risks cannot be anticipated and failing to guard against them will not be negligence. This is sometimes known as the ‘state of the art defence’. It is best illustrated by the case of Roe v Minister of Health (1954). The claimant was one of two patients who suffered pain and permanent paralysis from the waist down, after being injected with a spinal anaesthetic called nupercaine. The nupercaine had been stored in glass ampoules which had in turn been placed in phenol solution, a disinfectant. Evidence was produced at the trial to the effect that minute invisible cracks had formed in the class ampoules, which had allowed some of the nupercaine to be contaminated by phenol solution which had seeped through the cracks. Although this evidence has since been doubted, it was accepted at the trial, and on the grounds that such a phenomenon had not previously been discovered, and could not therefore be guarded against, the defendants escaped liability for negligence.