Clinical Negligence


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Clinical Negligence

  2. 2. <ul><li>Delict of negligence </li></ul><ul><li>Where A has suffered wrongful loss at the hands of B (generally where B was negligent) B is under a legal obligation to make reparation. </li></ul>
  3. 3. <ul><li>Duty Of Care </li></ul><ul><li>Breech of duty </li></ul><ul><li>Resultant harm </li></ul>
  4. 4. Duty of care A neighbour is a person so closely connected with and directly affected by (proximate to) my act (or omission) that I should have had them in mind when I committed the act (or omission).
  5. 5. <ul><li>In an emergency, wherever it arises, you must offer assistance, taking account of your own safety, your competence, and the availability of other options for care. </li></ul>In an emergency, in or outside the work setting, nurses and midwives have a professional duty to provide care. When considering providing care in an emergency situation nurses and midwives need to remember that they are personally accountable for any actions and omissions in their practice and must always be able to justify their decisions. Therefore, if a nurse or midwife chooses to walk away from an emergency situation they could be called to account for this.
  6. 6. BREACH OF DUTY <ul><li>General law of negligence – the standard of care is that of the reasonable person </li></ul><ul><li>Clinical negligence – the standard of care is that of the reasonable healthcare professional at the same level and with the same qualifications </li></ul>
  7. 7. <ul><li>The Bolam Test/Defence </li></ul><ul><li>“ A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion ….A doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view” </li></ul>
  8. 8. Criticisms of Bolam Test <ul><li>Too protective of clinical staff </li></ul><ul><li>Judges not permitted to choose between competing expert views </li></ul><ul><li>“ Responsible body” not defined </li></ul>
  9. 9. THE BOLITHO TEST <ul><li>The judge is permitted to choose between two conflicting expert opinions and can reject one of those opinions if it is not </li></ul><ul><li>“ logically defensible”. </li></ul>
  10. 10. Reasonable & Responsible
  11. 11. Reasonable body of opinion <ul><li>“ If guidelines have been produced by a respected body and have been accepted by a large part of the profession, a doctor would have to have strong reasons for not following that guidance” </li></ul><ul><li>Dr Graham Burt of the MDU </li></ul>
  12. 12. Scottish Office Advice <ul><li>“ With the increasing use of guidelines in clinical practice, they will probably be used to an increasing extent to resolve questions of liability. Those who draft, use and monitor guidelines should be aware of these legal implications”. </li></ul>
  13. 13. Sir Michael Rawlins <ul><li>“ I always urge doctors when they depart from a NICE guideline to record in the patient’s notes at the time why they did so, because there is a general legal view that NICE guidelines will replace the Bolam test in medical negligence” </li></ul><ul><li>MedEconomics </li></ul>
  14. 14. Reasonable in circumstances <ul><li>Whitehouse v Jordan 1980 </li></ul><ul><li>Maynard v West Midlands RHA 1984 </li></ul>
  15. 15. CAUSATION <ul><li>The claimant must prove that the breach of duty caused or substantially contributed to the damage suffered. </li></ul>
  16. 17. CAUSATION <ul><li>Positive Act </li></ul><ul><li>Omission </li></ul><ul><li>Statement </li></ul>
  17. 18. Factual issues <ul><li>“ Cause in fact” is a question of fact to establish a causal link between the incident and the injury </li></ul>
  18. 19. Remoteness of damage <ul><li>“ Cause in law” </li></ul><ul><li>The extent of the defendant’s liability is determined by the boundaries set by the judges </li></ul>
  19. 20. Tests to establish causation <ul><li>“ But for” test </li></ul><ul><li>The chain of causation test </li></ul><ul><li>Was there a novus actus interveniens? </li></ul><ul><li>The material contribution test </li></ul><ul><li>Bolitho test for omissions </li></ul>
  20. 21. Remoteness of damage <ul><li>The defendant is only liable for damage that is of a kind which is reasonably foreseeable. </li></ul><ul><li>The thin skull rule </li></ul>
  21. 22. Causation issues in clinical negligence claims <ul><li>Patients often already sick </li></ul><ul><li>Several different possible causes of illness </li></ul><ul><li>Recollections of staff and patients seldom coincide </li></ul><ul><li>Staff may be in conflict </li></ul><ul><li>Medical records often incomplete </li></ul><ul><li>Dependence on medical experts </li></ul>
  22. 23. Staff nurse Smith was under considerable pressure on a children's ward. A spate of very seriously ill patients being admitted and a few absences of staff had increased her workload and put strain on the ward. A junior doctor wrote up a four year old with suspected meningitis for a high dose of antibiotics and told the staff nurse he was prescribing a higher dose than was usual due to the severity of the condition. Normally Staff nurse Smith would have checked the dose in the BNF, but since they were so busy she took the doctors word for it and gave the higher than normal dose. The child went in to renal failure and died. Post mortem reveled the child had been given one thousand fold the normal dose.
  23. 24. <ul><li>Nurse Smith was working on a medical ward and was concerned that the kitchens had not sent up lunches. She telephoned the kitchens and was told that she would have to wait as there were no porters available. Rather than wait she decided to fetch them herself. She went into the kitchen passing a notice that said “no entry Kitchen staff only”. She went across to the serving bay. In doing so knocked into a cook who was removing a pan of gravy from the stove. The hot gravy splashed over the cook and Nurse Smith. </li></ul><ul><li>Is Staff Nurse Smith liable and if so to whom ? </li></ul><ul><li>Is the trust liable and if so to whom ? </li></ul><ul><li>Can Nurse Smith sue her employer ? </li></ul>
  24. 25. Any Questions