An Essay on Clinical Negligence

An Essay on clinical Negligence We realize always thought of occasion as a logical, almost mathematical business. To intrude policy into creator is exchangeable tell that two plus two does non equal to four be fare, for policy reasons, it should non. (Charles nurture NLJ 5/11/2004 page 1644). To what extent do you choose that Charles comfort is correct in that condition and clinical disuse should be a mathematical business and the coquettes brace, by introducing matters of policy, confused what should be a logical approach?Introduction In the article of It should be, in that locationfore it is1, its author, Charles Foster examined the surprise menage of lords judgment in Chester v Afshar2, what he set forth as an make for in ratified creativity that abolishes the compulsion for reason in each meaningful sense. To discuss the above issue, one mustiness(prenominal) consider the legal requirements of clinical default.In order for a diligent to copy in a cla im for clinical slackness against his restitute, he must be able to satisfy three requirements first, he must establish that a profession of commission was owed by the posit or hospital to himself second, he must prove that the desexualize has infracted that responsibility of dread by drop deading to reach the standard of care required by the law lastly, the affected role must prove that his deformity was begind by the dilutes lax act. Each of these requirements for negligence ordain be considered as the strict requirements for a triple-crown claim of the affected role suffering from an unfavorable event in a health check context.These steps were referred by Charles Foster as the logical mathematical business 3towards establishing the causing in a clinical negligence gaffe. Is Chesters crusade a relaxation of the actor requirements? To discuss this statement, one must consider whether the breach of work causes the trauma to the long-suffering. Even if a re construct breaches his employment of care by go below the standard of care, a persevering puke solitary(prenominal) incur his damages if he can prove that breach has caused some disability to him. 1. It Should Be, T herefore It is (2004) 154 in the raw integrity Journal 7151. 2. 2004 UKHL 41. 3. Charles Foster New constabulary Journal 5/11/2004, p. 644. If the doctor breaches his duty of care, merely the patient suffered no defect, or would have suffered an identical trauma feignless of the doctors failing, then the doctor is not proven negligent. This can be illustrated by the slip of paper of Barnett v Chelsea and Kensington hospital Management Committee4. In this case, the doctor has breached his duty of care to the deceased man by not examining him person totallyy, merely the swear out for clinical negligence fai guide, because even if the patient had been seen by the doctor, the ratsbane poisoning was regarded as too far advanced for an antidote to be life-sa ving.In other words, by the condemnation the patient arrived at the hospital, he was destined to die ir rateive of the actions or negligent omissions of the doctors. Although his doctor failed to chance on the requisite standard pf care in treating him, this did not in itself cause any harm to the patient. 4. There are two ways of interpretation this creator requirement. On the one hand, there exists a bonny doctrine that a person should not be held probable for damage which he did not cause.On the other hand, there is no legal state for incompetent medical examination care unless the patient can prove that the doctors action indeed caused some identifiable harm. The situation patient is Barnett should have been att deathed by a doctor, but the fact that he was not subject to compensation. In recent years, the English legal establishment has recognised that a very strict application of the originator requirement can result in injustice for the patient and therefore there have been gradual moves towards a relaxation of this requirement.In Bolitho v city & Hackney Health Authority5, for instance, a strict application of the traditional designer test of but for that is the harm would not have been caused but for the doctors clinical negligence- was self-evidently not satisfied. It could be recalled in this case the doctor failed to attend the patient but argued that, if she had indeed attended, she would not have contributed the treatment (intubation) which could have save the kid. Therefore, it is crystal clear that the harm of the childs death would have occurred even if the doctor had met her duty of care by attending the patient.Despite the judicial system was not allowing to conciliate for this finish and instead enquired into whether the doctors intended failure to cannulize if she had attended would have been clinically negligent in itself. This implies that it was considered by the court at all is an indication that, if some serious harm has occurred, the courts will take into considerations the entire circumstances of the case before coming to the conclusion as to whether the causation requirement has been satisfied. 4. 1968 1 A11 ER 1068. 5. 1997 UKHL 46, HL.The approach can be seen even more controversially in the 2004 case of Chester v Afshar6, which Charles Foster has make his comment on as mentioned. This case problematical a doctors clinical negligent failure to remonstrate with a patient closely the risk inherent in a medical procedure. There exists a need for the patients live with to medical treatment to be honorabley communicate. The complication with respect to causation arose because the patient admitted that she would have tranquillize on a lower floorgone the surgery even if she had been warned more or less the risks of paralysis which unfortunately worldlyized during the medical procedure.Therefore, the doctors failure to disclose this risk, although a breach of his duty of care, did not on the strict application of the causation requirement, cause the harm suffered by the patient. When Chester reached the House of skippers, the House was divided on the issue of causation. The Court of Appeal, taking a strong and pragmatic approach, held that the claimant could succeed by applying customary causation regulation. Therefore it could be said that the claimants disgrace had resulted from receiving a particular surgery at a particular time.If the defendant had warned her somewhat the risks, she would not have that particular operation- she would have had an operation (with the same risks) at a later date. If she had had this later operation, in all probability, the very small risk of disability would not have happened. On this basis, it could be said that the defendants failure to warn had led to the claimants disability. However, the House of superiors did not convey this kind of approach attractive. As ecclesiastic Hoffman put it, the approach of the Cour t of Appeal was about as logical as saying that if one had been told, on entering a casino, the odds on the number 7 coming up were only 1 in 37, one would have gone away and capture back next week or gone to a dissimilar casino. The question is whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some strange detail. 7 In the House of ecclesiastics, both the majority and minority rejected reasoning of the Court of Appeal and held that the claimant could not succeed in proving causation on ceremonious principles.For the minority ( original Hoffman and Bingham), this was sufficient to dispose the case. However, the majority went on to state that, for policy reasons, the traditional rules of causation ought to be relaxed to allow the claimant to 6. 2004 UKHL 41 7. 2005 1 AC 134, per Lord Hoffman, at divide 31. succeed. Central to their Lordships reasoning was the need to give effect to the dear of a patien t to make an informed choice about whether and when to undergo medical treatment. In law, this dexterityy was made possible by a doctors duty to warn the patient about any significant risks multiform in the medical treatment.There would therefore be injustice if breach of this duty did not lead to a remedy. If the doctor were not made liable for such a breach, the duty to inform the patient about significant risks would, as Lord rely put it, be a dig out one. His Lordship said The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to touch the only purpose which brought it into existence.On policy grounds therefore I would hold that the test of causation is satisfied in this case. 8 Lord Steyn divided up this view that the vindication of the patients rights was the overriding considerations Her right of liberty and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principlesThis result is in accord with one of the most basic aspirations of the law, namely to right wrongs. 9 On policy grounds, therefore, Lord Hope, Steyn and carriage held that the test of even though they agreed with Lord Bingham and Hoffman that this required a departure from the traditional principles.The innocent fact that the patients tarnish was intimately involved with the duty to warn10 was sufficient for Lord Hope, while Lord Walker emphasized that the doctor had failed in his professional duty and the patient has suffered injury directly within the scope and focus of that duty. 11 In summary, the two disagreeing Lords emphasized that fell Chester had failed to prove that the doctor caused her injury. Lord Bingham said that she cannot show that the clinical negligence proved against Mr. Afshar was, in any ordinary sense, a cause of her neediness12 and Lord Hoffman far-famed that on ordinary principles of civil wrong law the 8. 2005 1 AC 134, per Lord Hope, at paragraph 87. 9. 2004 4 A11 ER 587, per Lord Steyn, paragraph 24-25. 10. 2004 4 A11 ER 587, per Lord Hope, paragraph 87. 11. 2004 4 A11 ER 587, per Lord Walker, paragraph 101. 12. 2004 UKHL 41, per Lord Bingham, paragraph 9. defendant is not liable. 13 both of these judges therefore held that fille Chester could not recover damages with respect to Mr. Afshars negligent disclosure. Even the judges in the majority acknowledge that the traditional causation requirement had not been satisfied in this case.Lord Hope, for instance, who gave the leading judgment, accepted that a solution to this problem which is in dismiss Chesters favour cannot be based on conventional causation principles. 14 The majority allowed Miss Chester to recover damage based on some vague policy reasons. Lord Hope elaborated that the come upon que stion for the House of Lords was whether in the unusual circumstances of this case, justice requires the chemical formula approach to causation to be modified. 15 Lord Hope further explained that the function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached.Unless this is done, the duty is a hollow one, stripped of all practical force and devoid of all content. 16 Lord Steyn shared this view that the vindication of the patients rights was the overriding consideration Her right of self-direction and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principlesThis result is in accord with one of the most basic aspirations of the law, namely to right wrongs. 17 As a result, the consequence is that where there is a breach of duty to disclose and the plaintiff suffers from . he actual harm he or she should have been warned about, then a claim for damages is more probable to succeed. The patient would recover if they would have deferred the procedure. The plaintiff no longer have to demonstrate that he or she would have refused the procedure completely if he or she had been told about the undisclosed risk. The adaptation of the causation requirement in Chester v Afshar has been the subject of considerable debate and criticism. Green18, for example, argues that the law of torts is concerned not with compensating those who have suffered loss as a result of the defendants breach of duty.This very point is emphasized by Lord Bingham in his dissent when he argues that a claimant is not entitled to be overcompensated, and a defendant is not bound to compensate the claimant, for damage not caused by the negligence complained of. 19 To some extent this is a win over argument. 13. 2004 UKHL 41, per Lord Hoffman, paragraph 32. 14. 2004 UKHL 41, per Lord Hope, paragraph 81. 15. 2004 4 A11 ER 587, per Lord Hope, paragraph 85. 16. 2004 4 A11 ER 587, per Lord Hope, paragrap h 87. 17. 2004 4 A11 ER 587, per Lord Steyn, paragraph 75. 18.Sarah Green, Coherence of health check Negligence Cases A mettlesome of Doctors and Purses. (2006) 14 Med Law Rev. 1, p. 4. 19. Chester v Afshar 2004 4 A11 ER 587, paragraph 9. Miss Chester was awarded full damages for the injury she suffered even though this injury was not really caused by the doctors actions, which seems below the belt. However, the point which is missed here is that the doctors negligent non-disclosure did cause a different loss to Miss Chester. Green20 argues that Miss Chester lost nothing of value, but I believe this is not true she lost her right to make an self-directed choice about her medical treatment.In daily clinical radiation diagram, autonomy with respect to healthcare requires that a patient is fully informed about the medical treatment before he or she can consent to it. On the other hand, the right to refuse consent to medical treatment, which is protected in both English common law and international humankind right law, requires that an informed choice be made by the patient. In Miss Chesters case, she was denied of this particular right. She agreed to undergo the surgery in ignorance of its risks and true nature. Her right to autonomy was therefore denied.Greens oppose view can be explained as follows A patients dignity and right to decide is protected by the law of torts recognition that a doctor has a duty to warn, not by the readiness to override causal considerations in the claimants favour. If a breach of that duty to warn causes the patient no loss, then a finding of no liability does not violate that right. It merely serves as an acknowledgment that the patients inability to exercise that right did not, on this occasion, causes any harm. 21 A fundamentally different tie-up of this situation is taken here.The inability to exercise a right to autonomy is regarded as a harm in itself, regardless of the actual somatogenetic injury resulted. This right s-based approach means that Mason and Brodie22 are correct to regard the award of full damages to Miss Chester as inconsistent with the House of Lords modified approach to causation as follows One can record the concern to allow the plaintiff to vindicate her rights. However, the measure of damages allowed does not, in truth, reflect the loss suffered because, at the end of the day, the loss lay in an invasion of autonomy per se, and an award of full damages can be said to over-compensate. 23 20. Sarah Green, Coherence of Medical Negligence Cases A high of Doctors and Purses. (2006) 14 Med Law Rev. 1, p. 14. 21. Sarah Green, Coherence of Medical Negligence Cases A bouncing of Doctors and Purses. (2006) 14 Med Law Rev. 1, p. 9-10. 22. K Mason and D Brodie, Bolam, Bolam- hence be kB Bolam? (2005) 9 Edin LR298, p. 305. 23. K Mason and D Brodie, Bolam, Bolam- Wherefore are Thou Bolam? (2005) 9 Edin LR298, p. 305. The House of Lords judgment in Chester v Afshar represents a sign ificant departure from the traditional requirements of a negligence action.It is an imperfect the furiousness upon vindication of the patients rights is insufficiently explained and justified. But it is overly advance from a human rights perspective to see this judicial recognition at the highest level that causation requirements should not act as a restraint to recovery where a patients rights have been infringed during the provision of medical care. Manson and Laurie24 refer to a trend to assist the plaintiff over the causation hurdle in medico-legal cases25 and, given the great hurdle still in place with respect to proving a breach of the duty of care, this should in general be welcome.Andrew Grubb26 argues that the majority in Chester made the right finding It is difficult to argue with the majoritys reasoning. It would undermine the rule and be unjust for a doctor to require a patient to show that she would never have a particular procedure in the future. It is also counte rintuitive to think that because the patient may run the risk in the future- by agreeing to and having the procedure- the negligence is not connected to her injury. At worst, she will be unfastened to a small risk of injury which is unlikely then to eventuate.She had in a real and immediate sense suffered injury that she would not differently have suffered. That should be sufficient to establish a causal sleeper. 27 If Miss Chesters loss is better described as the loss of the right to make an informed consent, rather than exposure to a risk which she would have avoided if given proper cultivation, it could be argued that damages should be directed towards compensating her for this deprivation of autonomy, rather than for the animal(prenominal) injury she suffered.It is interesting that the majority in Chester did not consider the possibility of making a conventional award as they had done in Rees v Darlington memorial NHS Trust28, for the patients loss of autonomy. The majority awarded Miss Chester full damages for fleshly injury, despite the fact that their judgments describe the real loss in this case as the deprivation of the right to make an informed choice. As 24. JK Mason, A McCall smith & G Laurie, Law and Medical Ethics, 7th edit, (Oxford, Oxford University Press, 2006), p. 39. 25. JK Mason, A McCall Smith & G Laurie, Law and Medical Ethics, 7th edit, (Oxford, Oxford University Press, 2006), p. 339. 26. react to Treatment The efficient patient role, 31-203 in A Grubb with J Laing(eds), Principles of Medical Law, 2nd edition, (Oxford, Oxford University Press, 2004), p. 200. 27. Consent to Treatment The Competent Patient, 31-203 in A Grubb with J Laing(eds), Principles of Medical Law, 2nd edition, (Oxford, Oxford University Press, 2004), p. 200. 28. 2003 UKHL 52.J Kenyon Mason and Douglas Brodie29 point out, this may mean that Miss Chester was over-compensated However, the measure of damages allowed does not, in truth, reflect the loss suffered because, at the end of the day, the loss lay in an invasion of autonomy per se, and an award of full damages can be said to over-compensate. What is, in some ways, affect is that, the solution adopted in Rees v Darlington Memorial NHS Trust was not applied here. There, the requirements of distributive justice meant that damages should not be awarded to compensate the plaintiff for the loss that ad arisen as the result of a failed sterilisation operationThe solution adopted was to award a modest conventional sum by way of general damages to acknowledge the usurpation of the plaintiffs autonomy by the fault of the defendant. 30 The possibility of a conventional award was mentioned by Lord Hoffman, in his dissenting judgment I can see that there power be a case for a modest solatium. 31 In the end, he rejects this solution for two reasons it would be difficult to settle on an appropriate amount, and on the grounds of costs, the courts would be an unsuitable place to be what would al ways be a modest award.Effectively, then, the consequence of Chesters case is that autonomy-based right to make an informed consent is so key that doctors who fail to warn patients about material risks associated with treatment may have to resort patients should those risks materialize, despite the exercise of all proper skill and care in carrying out the operation, and critically, despite the fact that the patient admits that they would have been prepared, in fact, to knowingly run this risk on another occasion. Difficulty in proving causationThe full impact of the House of Lords relaxation of causation principles in Chester v Afshar remains to be seen. There are a number of reasons wherefore the causation requirement raises particular difficulties in actions for negligence non-disclosure of relevant information. 29. Bolam, Bolam- Wherefore Are Thou Bolam? (2005) 9 Edin Law Rev. p. 298-305. 30. Bolam, Bolam- Wherefore Are Thou Bolam? (2005) 9 Edin Law Rev. p. 298-305. 31. 200 4 UKHL 4, per Lord Hoffman, paragraph 34. 32. A warning about causation (1999) 115 Law Quarterly Rev. 1-27, p. 23. 33. From Informed Consent to Patient Choice A New Protected Interest (1985) 95 Yale Law Journal 219. 34. From Informed Consent to Patient Choice A New Protected Interest (1985) 95 Yale Law Journal 219. First, a successful claim in negligence for failure to disclose a material risk is in practice synonymous with strict liability for medical mishaps. Informed consent therefore becomes a route for patients to seek pecuniary compensation for unfortunate but blameless medical outcomes.Doctors who exercised all reasonable care and skill in performance of an operation will be found liable for the consequences of an accident which they could have done nothing to go along just because their pre-operation disclosures were understaffed. As Peter Cane32 explains, whatever the ideological basis of the duty to warn (or, in other words, the interest which it protects), its importa nce in practice lies in providing a basis for imposing liability for physical injury not caused by clinical negligence.Secondly, because the claimant must prove that the inadequate disclosure caused her injury, cases only come before the courts where the patient has not been informed about the risk of an adverse outcome which has then materialized. Adequate information is not, however, confined to disclosure of risks. In order to exercise meaningful choice, it is important that the patients are told about alternatives to the proposed treatment. As Marjorie Maguire Shultz33 explains, negligently depriving the patient of choices will rarely result in the sort of damage or injury which is recognized in tort law Preemption of patients authority by doctors may also give rise to injuries that are real but intangible, or to physical outcomes that are arguably not injurious except from the individuals vantage point. These outcomes may be excluded from negligence doctrines definitions of ha rm. Thus, a patient not told about a method of sterilization that is more reversible than the one performed may have difficulty convincing the court that non-reversibility is a cognizable physical injury.A patient who alleges that, properly informed, she would have chosen a lumpectomy rather than a radical mastectomy might find it hard, under existing negligence rules, to characterize the successful operation that remove her breast and eradicated her cancer as having injured her. Similarly, the patient with a bank to go home or to a hospice to die, who is instead maintained subsisting by hospital machinery, might have difficulty establishing injury under definitions of an interest in physical well-being rather than choice. 34Thirdly, cause appears to have acquired a rather special meaning in failure to warn cases, Peter Cane has explained, the doctors in these cases rarely caused the injury in question in the central sense of the word cause as it is used outside the law, because failure to warn of a risk does not cause the materialization of the risk. Rather the injury has usually been caused by an unfortunate and inherently unlikely combination of circumstances, and the doctor scarce created the situation in which this extraordinary sequence of events could occur.The question of whether a doctor should be liable for a failure to disclose a risk is more accurately stated as whether she should be liable for creating the situation in which an accidental injury might or might not occur. Conclusion There is an elegance to a legal twist that requires doctors to owe a single comprehensive duty in negligence covering diagnosis and treatment, and the associated obligations to inform. Diagnosis and treatment are essentially the exercise of the medical professional skills and therefore fall fairly into the arms of negligence.The duty to inform, however, seeks to protect the patient interest in self-determination. This seems more fairly intercommunicate by an act ion that is complete with the injury to the interest protected. Such an action would be more akin to an action in battery. The fact that legal action for inadvertent misinformation in relation to the inherent risks/benefits of treatment lies in negligence rather than in battery leaves a legal social system that has some tension within in it.Where battery, constrained as it is by touching, is an ill-fitting robe negligence barely covers the mischief. In English law, negligence actions for negligent misinformation have seen this tension expressed as a strong dissent by Lord Scarmen in the case of Sidaway v Bethlem Royal Hospital Governors35, and then as a weakening of the causation rule in Chester v Afshar. Notice how weakening the causation rule in Chester v Afshar.Notice how weakening the causation requirement makes the action of clinical negligence more akin to a battery action- the very action precluded by the rule in Reibl v Hughes in such cases. In Chester v Afshar, the plainti ff would have had the operation at a different time and so something would have changed had the information about risk been given. The core of the principle in this case comes when the plaintiff does not change anything as a result of the misinformation.Can they still succeed where they suffer the very harm they should have been worried about? If so, we have a clinical negligence action that looks suspiciously like a battery action but protects the interest of self-determination. The use of clinical negligence in this context has arisen by default. The structure of a claim in clinical negligence is simply the wrong one to protect a fundamental interest like self-determination and the strain is telling.