A Medical Negligence Problem Question

Question 1 – Part 1

The situation concerning Bea raises a number of queries in relation to medical negligence. It may be that the hospital has been negligent in administering treatment to Bea. The doctors owe a high duty of care to the patient. Whether a duty of care exists will be decided by established legal principles. It has been said of the existence of this duty that “[a] patient claiming against his doctor…usually has little difficulty in establishing that the defendant owes him a duty of care^[1].” The test for breach of duty is determined by reference to the judgements of ‘responsible bod[ies] of medical opinion. This test arose out of the case of Bolam v Friern Barnet HMC [1957] 2 ALL ER 118 and is known as the Bolam test. The test is as follows:

“When you get a situation that involves the use of some special skill or competence, then the test as to whether there has been negligence or not is… the standard of the ordinary skilled man exercising and professing to have that special skill. If a surgeon failed to measure up to that in any respect (Clinical Judgement or otherwise), he had been negligent and should be so adjudged” (Whitehouse v Jordan [1981] 1 ALL ER 267)

The standard of care that Bea can expect to receive from a doctor is a professional standard which must accord with a “responsible body of medical opinion.^[2]” The standard is that of professional colleagues. Therefore the legal test becomes a matter of medical professional opinion.

“[ 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 men skilled in that particular art”.

Under the “bolam” test there is no negligence where the doctor complies with practices that a competent body of colleagues would regard as correct. Therefore on first glance it would appear Bea was treated correctly by Mr X and that no culpability arises however in relation to the treatment that she has received from Mr Y this is a different matter.

It may be argued by Mr Y that this was an error of clinical judgement and therefore was not negligent, however it has been held that an error of clinical judgement can be negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Lord Edmund Davies declared:

“To say that a surgeon committed an error of clinical judgement is wholly ambiguous, for, some whole errors may be completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising “clinical judgement” may be so glaringly below proper standards as to make a finding of negligence inevitable…[d]octors and surgeons fall into no special category…. If a surgeon fails to measure up to that standard in any respect he has been negligent and should be so adjudged^[3].”

Before discussing the issue of causation it is important to point out that any claim that will be brought should be brought against the NHS trust. There is an NHS indemnity if the health care professional (i) was working under a contract of employment and the negligence occurred in the course of that employment (ii) was not working under a contract of employment but was contracted by an NHS body to provide services to persons to whom that NHS body owes a duty of care; or (iii) neither of these but where the NHS owed a duty of care to the persons injured.

To establish culpability Bea must show that Mrs Y’s negligence caused the injuries from which Bea is now suffering. There are essentially two questions that will need to be answered : Could the breach cause the injury? A question of factual causation; did the breach cause the injury? A question of fact and law

As a matter of general law of negligence, it will be for Bea (or her mother as her litigation friend) to demonstrate that the breach of duty caused or materially contributed to the legally recognised injury on the balance of probabilities^[4]. Thus Bea must show “but for” Mr Y’s negligence she would not be suffering from the brain damage that she now is therefore she must prove that on the balance of probabilities Mr Y caused this injury^[5]. This will of course be a matter for a medical expert to determine. The claim will fail unless this can be proven. Causation must be proved on a balance of probabilities which means that it has to be shown that it is more probable than not that the negligence caused the injury or damage which is the subject of the complaint. Bea will have to prove the defendant caused her injury in fact and in law and the injury that she has suffered must not be too remote.

In this instance there is likely to have been multiple causes and may be that Bea would have suffered brain damage in any event. The House of Lords held that if the defendant’s conduct materially contributed to the harm suffered, the court could find that negligence had been proved.^[6]

If she is unable to show this there is a doctrine known as re ipsa loquitur which applies in cases where the only inference on the evidence before the court was that there was no other possible explanation for the Claimants injuries^[7]. This can be appropriately invoked if the facts of the case strongly suggest that there is at least an inference of negligence on the defendant’s part. The essentials of the doctrine are that there is no evidence of how the accident occurred, the injury is of a kind that does not normally happen in the circumstances unless there was negligence and that the defendant is proven to have been in control of or linked to the situation either personally or vicariously. Therefore even if Negligence is not established it would seem that there is a good argument for invoking this document. However it would seem on the information that is available there has been negligence and that Bea will be able to bring a claim against Mr Y for damages that he has suffered as a result of her negligence.

Therefore in conclusion it is likely that a claim will be able to be brought against Mr Y, or rather as discussed above on the Health Trust, for negligence treatment received. The claim will succeeded only if it can be demonstrated on the balance of probabilities that the failure of Mr Y to examine the Bea/and or the leaving of the notes by Mr X led to the failure to examine Bea which led to her being sent home erroneously which led to the brain damage from which she now suffers. She will be able to recover damages for her pain suffering and loss of amenity. She will also be able to claim for any out of pocket expenses she has incurred and any future losses that she is likely to occur. As a final point actions for personal injuries must be brought within three years from the date of the claimant‘s knowledge of the right of action, whichever is the later, these rules are contained within s11 of the Limitation Act 1980.

Part 1 – Question 2

It is a cardinal principle of medical law that a patient should always, wherever possible be provided with informed consent for any treatment that is given to him.

“Successful relationships between doctors and patients depend on trust. To establish that trust you must respect patients’ autonomy – their right to decide whether or not to undergo any medical intervention even where a refusal may result in harm to themselves or in their own death. Patients must be given sufficient information, in a way that they can understand, to enable them to exercise their right to make informed decisions about their care”. (GMC:2005)

Any adult, mentally competent person has the right in law to consent to any touching of the person. If he is touched without consent or other lawful justification, then the person has the right of action in the civil courts of suing for trespass to the person – battery where the person it actually touched, assault where he fears that he will be touched. The fact that consent has been given will normally prevents a successful claim for trespass. However, it may not prevent an action for negligence arising on the grounds that there was a breach of duty to care and inform the patient. To be valid, consent must be given voluntarily by a mentally competent patient without any duress or fraud ‘Informed consent’ is therefore an essential legal, ethical and profession duty and refers to all the elements of a ‘valid’ consent-be it for a legal or an ethical purpose. Issues of capacity to consent, or of undue pressure to consent, are aspects of ‘informed consent’.

If a child is under 16 and is not Gillick competent, then consent to treatment should be obtained from a person with parental responsibility. It is essential that a person giving consent for treatment has all the necessary information about the proposed procedure in order to act in the child’s best interest.

If more than one person has parental responsibility, the consent of one of them is sufficient authority to go ahead with the treatment. This freedom has been restricted partly by Dame Butler-Sloss P in Re J (specific issue orders: child’s religious upbringing and circumcision) [2000] 1 FLR 571, who said that there are a small number of important decisions that should not be consented to by only one person with parental responsibility. In the event of a dispute between those with parental responsibility, issues involving sterilisation, circumcision, change of surname and immunisations must be referred to the court. In the case of Re C (welfare of child: immunisation) [2003] 2 FLR 1054, the court recognised that parents who are no longer the principal carers still have equal rights in relation to the major decisions in a child’s life. On the other hand, the bond between the child and the principal carer is significant, and it is in the child’s best interests to safeguard that bond. Any issue will therefore have to be balanced carefully. The Family Division decision in Portsmouth NHS Trust vWyatt on whether an NHS Trust, in the event of a disagreement with a child’s parents, could withhold further aggressive treatment including artificial ventilation to prolong the life of a one year old girl with irreparable respiratory and kidney problems and profound brain damage. There are some circumstances where nurses may treat patients without their consent. One of these is the principle of necessity. The principle of necessity is very limited. In order to establish that it was necessary to treat it must be shown that “not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person^[8].

If both parents with parental responsibility withhold their consent to treatment, it is advisable for the healthcare team to obtain a court order to consent to treatment in the best interests of the child. If there is a conflict between parents and medical opinion, the court will determine the best interests. In the recent case involving the baby^[9], the court ruled against her parents’ wishes by determining that any further aggressive treatment would not be in Charlotte’s best interests, even if necessary to prolong her life. The court held in the case of Re Winston-Jones^[10] that in proceedings that concerned a dispute between the applicant NHS Trusts and the mother of a baby with a genetic disorder, it was not in the child’s best interests to be provided with mechanical ventilation.

Part 2 – Abortion

The entrenched views polarising abortion are well rehearsed, with the pro-choice and pro-life lobbies putting forward moral, ethical and religious arguments. The legal framework of the Abortion Act 1967 gives two doctors the responsibility of making the decision regarding a termination of pregnancy. However, there is a widespread perception of abortion on demand.

Termination of pregnancy for foetal abnormality constituted only 0.97 per cent of all registered terminations during 2001 in England and Wales.^[11] While the medical profession seeks guidance from the law, the law is manifestly reluctant to limit a doctor’s discretion in the morally and ethically ambiguous arena of foetal medicine. Thus, although the criminal law declares all terminations of pregnancy to be illegal, broad defences are provided in the Abortion Act 1967 which are dependent upon a finding by two doctors, acting in good faith, that certain circumstances exist. The relevant provision, as amended by the later Human Fertilisation and Embryology Act 1990, is section 1 which is as follows:

if two registered medical practitioners are of the opinion, formed in good faith:

(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. n5

It is immediately apparent that these grounds for a legal termination of pregnancy are extremely broad.

The Offences against the Person Act 1861 makes it a criminal offence punishable by imprisonment to procure or perform an abortion. A termination of pregnancy can be legally performed, however, since the 1967 Abortion Act provides a defence against the prosecution of a doctor who does so. Abortion is legal under this act where two registered medical practitioners form the opinion ‘in good faith’ that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family. An abortion can also be performed at any gestational stage where there is risk of grave permanent injury to the physical or mental health of the pregnant woman; where continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or where there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. British law thus requires certification by two doctors that one of these conditions applies, if an abortion is to be legally performed to a woman of any age. The defining characteristic of the British legal regime, it has therefore been argued, is its ‘medicalised’ approach to abortion provision. The 1967 Abortion Act does not so much liberalise the regulation of abortion than ‘medicalise’ it^[12]

The statutory provision for abortion has been subject to a great deal of criticism. It relies upon a diminished version of reproductive autonomy because, ‘… women have no right to terminate an unwanted pregnancy, and must instead rely upon the beneficent exercise of medical discretion’. It vests ‘remarkable authority’ in medical practitioners, because it ‘enshrines deference to medical opinion, and legitimises the doctor’s decision that an abortion would be lawful^[13]‘ Possible reasons for abortion (for example, the fact that continuing a pregnancy may have negative health effects) are turned into legal stipulations, giving medical practitioners, rather than the pregnant woman, ultimate control in deciding whether an abortion can be performed.

Those who oppose abortion, the intense level of protest that legalised abortion elicits from pro-life campaigners intimates that at issue is a core belief regarding human life. Because some individuals equate abortion with an act of murder, pro-life campaigners might resort to radical action to attain a meaningful level of protection for all life, including the unborn^[14]. They argue that the law as it stands produces a grand anomaly in so far as a foetus enjoys patrimonial rights and rights to sue for damages only if she is born alive. If she suffers injuries which are not merely debilitating but fatal, no “rights” arise. The greater wrong secures freedom from liability for the wrongdoer and obliterates protection for the foetus. Can this result be just? Dworkin^[15] says that the objection to abortion is widely believed to be derived from the foetus’s status as a “person” and its “right to life”, which gives rise to a corresponding duty on the state to protect that right. But many people who condemn abortion as murder do not support its blanket prohibition by the criminal law which shows, he claims, that their objection is “detached”, that is, that abortion “wastes the intrinsic value–the sanctity, the inviolability–of a human life and is therefore a grave moral wrong unless the intrinsic value of other human lives would be wasted in a decision against abortion”.

The protests of the anti-abortion camp however do not solely involve a compulsion to manifest a belief. While there are social considerations that surround the assertions of the belief, such as an underlying acceptance in taking a life, the protests are also a form of civil disobedience to persuade the state or individuals performing or receiving an abortion to change their ways or policies. One can interpret the underlying goal of the pro-life campaigners’ opposition to abortion as an attempt to alter a state’s policy towards abortion, particularly as the protests derive from actions being carried out on individuals other than the protesters. Therefore the pro-life protests tend to raise issues involving other rights such as free speech^[16] or the boundaries of the right to privacy.

Similarly, individuals who believe in the necessity of abortion might also resort to extreme assertions of their views. An individual might believe that abortion is vital in an underdeveloped state where people are starving, even if abortion is illegal. A woman might feel compelled to undergo a life-threatening, yet illegal, abortion procedure because she believes in asserting her personal autonomy over her body. Alternatively, a state might impose its pro-abortion views to address its social ills, such as overpopulation or dire poverty.

Nonetheless, the pro-abortion stance is fraught with considerations that go beyond manifestation of a belief. These broader factors include social issues, such as the desire to address population expansion and poverty, the need to resolve conflicts between competing rights, and the fundamental status of certain rights. Additionally, there is the underlying issue of culture and economics that places the pro-abortion stance within the context of a larger debate^[17].

Protests regarding abortion usually involve an abortion being performed, or not being performed, on other consenting adults. A general protest action against abortion differs from a refusal to submit to a state-imposed method of population control, such as China’s coercive abortion or sterilisation policy for all couples with one child. It should be possible to rely on a particular belief to prevent an abortion occurring to yourself or at the very least be provided with asylum in such circumstances^[18]. In such instances the abortion objection is against a coercive state policy being imposed on an individual with a contrary belief system. This differs from the actions of an abortion protester who blockades abortion clinics in an attempt to deter other individuals from seeking an abortion or engaging in a march in support of a woman’s right to choose. These campaigners generally maintain a broader agenda to alter the law or dissuade individuals from undergoing the procedure.

As much of the argument as to whether or not Abortion is right or wrong is concerned with the status afforded to the fetus it is important to look at the legal analysis of that status. In the case of Vo v France (App No 53924/00) the status of the foetus was considered. Mrs Vo was a Vietnamese woman living in France. She was expecting a baby. She went to her local maternity clinic for an antenatal check-up on 27 November 1991, when six months’ pregnant. By coincidence, another woman with the same surname was also visiting the clinic to have a contraceptive coil removed. A doctor who meant to attend the second Mrs Vo, called out the name of his patient in the waiting room. But it was the pregnant Mrs Vo who answered. The doctor noted that she had little command of French. He consulted the medical file and attempted unsuccessfully to remove a non-existent coil. In doing so, he ruptured the amniotic sac surrounding Mrs Vo’s foetus. A large amount of amniotic fluid was lost. Belatedly, he then performed a clinical examination and discovered that her uterus was enlarged. He ordered a scan. He discovered that Mrs Vo had just had a scan, and realised this was a case of mistaken identity.

The pregnant Mrs Vo left hospital the next day. She returned a few days later. She was advised that her amniotic fluid had not been replaced, so her pregnancy could not continue. She then had a termination on health grounds on 5 December 1991. After a series of interlocutory hearings, the doctor stood trial in 1995 charged with two offences under Art 319 and r 40 of the then-Criminal Code (which has since been amended): causing unintentional homicide (to the foetus), and causing inadvertent injury to Mrs Vo. Unfortunately, following a recent amnesty on certain offences, the court found that the second charge was now time-barred. It acquitted the doctor of the first charge, ruling that a foetus was not a “person” within the relevant provisions of the Criminal Code dealing with unintentional homicide. Mrs Vo appealed in 1996. The Lyons Court of Appeal allowed her appeal in 1997, in relation to the homicide issue. It concluded that “subject to the law on the voluntary termination of pregnancies and therapeutic abortions, the right to respect for every human being from the beginning of life is guaranteed by law, without any requirement that the child be born as a viable human being, provided it was alive when the injury occurred.”

The doctor appealed to the Court of Cassation, which overturned the Court of Appeal’s ruling. It held that criminal law provisions must be strictly construed. It concluded that the appellate court below had misinterpreted the applicable criminal provision, and that the matters of which the doctor was accused did not come within the definition of homicide in the Criminal Code. Mrs Vo complained to the European Court of Human Rights, which heard oral argument on the admissibility and merits of her case on 9 December 2003.

Mrs Vo argued that life began at fertilisation, and that the term “everyone” in Art 2 (in French, toute personne) should be taken to mean human beings rather than individuals with the attributes of legal personality. She said that all forms of abortion, with the exception of therapeutic abortion, were incompatible with Art 2, on account of the interference with the right to life of the conceived child. The contracting states were not at liberty to exclude the unborn child from the protection of Art 2. Therapeutic abortion could be justified as an exception on grounds of necessity, provided it was performed under the conditions laid down by law.

The court unanimously declared the complaint admissible. By a majority of 14 to 3, it held that there had been no violation of Art 2. It expressed its reasoning fairly shortly. It examined its previous case law on abortion, mainly Commission decisions on admissibility^[19]:

In Vo the court said: “In the circumstances examined to date by the Convention institutions-that is, in the various laws on abortion-the unborn child is not regarded as a ‘person’ directly protected by Art 2 of the Convention, and that if the unborn do have a ‘right’ to ‘life’, it is implicitly limited by the mother’s rights and interests.” The issue of when the right to life begins was within individual states’ margin of appreciation. This is because, first, the issue of such protection has not been resolved within the majority of contracting states themselves and, second, there is no European consensus on the scientific and legal definition of when life begins^[20].

Termination of pregnancy, particularly for reason of foetal abnormality, is a morally and ethically complex issue. It is for this reason that a clear legal framework is needed, and yet proves extremely difficult to create. Medical professionals working in this area are vulnerable to legal liability in a number of contexts. the law remains somewhat ambiguous, leaving doctors without the certainty and confidence of clear legal guidance. The law is ambiguous for a reason, however. In this ethically ambiguous area, Parliament has decided, rightly or wrongly, to leave a wide discretion to the medical experts. This is seen in the terms of the Abortion Act and its subsequent amendment. Given this, perhaps understandable, abdication of responsibility, it seems more likely that professional bodies, such as the Royal Colleges, will provide a more fruitful source of well constructed constraints within which doctors can practice safely, and they must be encouraged to do so. If professional ethics are required to fill the gap left by the absence of clear legal rules, those ethical rules must be unambiguous, authoritative and of genuine practical application in order to protect doctors whilst also giving regard to legitimate interests of pregnant women and their unborn children.

Bibliography

Legislation

Abortion Act 1967

Offences against the Person Act 1861

Human Fertilisation and Embryology Act 1990

Limitation Act 1980

Cases

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.

Bolam v Friern Barnet HMC [1957] 2 ALL ER 118

Bruggemann and Scheuten v Federal Republic of Germany no 6959/75, 12 July 1977, DR 10

Boso v Italy no 50490/99, ECHR 2002-VI

H v Norway no 17004/90, 19 May 1992, DR 73,

Madsen v. Women’s Health Centre 114 S.Ct. 2516 (1994)

McGhee v National Coal Board [1973] 1 WLR 1

Portsmouth NHS Trust (Applicant) v (1) Derek Wyatt (2) Charlotte Wyatt (by her guardian Cafcass) (respondents) and Southampton NHS Trust (intervener) [2004] EWHC 2247 (Fam)

Re C (welfare of child: immunisation) [2003] 2 FLR 1054

Re F (Mental Patient: Sterilisation) [1990] AC 1)

Re J (specific issue orders: child’s religious upbringing and circumcision) [2000] 1 FLR 571

Re Winston-Jones (a child) (medical treatment: parent’s consent) [2004] All ER (D) 313 (Oct)

Whitehouse v Jordan [1981] 1 ALL ER 267)

Van Den Dungen v. Netherlands (Application No. 22838/93) (1995) 80 D. R. 147

Vo v France (App No 53924/00)

X v the United Kingdom, no 8416/79, 13 May 1980, Decisions and Reports (DR) 19,

Journal Articles

Abrams (1996), “Reservations About Women: Population Policy and Reproductive Rights” 29 Cornell International Law Journal 1

Gomez (1996), “The New INS Guidelines on Gender Persecution: Their Effect on Asylum in the United States for Women Fleeing the Forced Sterilisation and Abortion Policies of the People’s Republic of China” 21 N.C.J. Intl. L. & Com. Reg. 621.

Smolin (1995) “The Religious Root and Branch of Anti-Abortion Lawlessness” 47 Baylor Law Review 119

Hewson B, (2004) “Foetal Rights and Obstetric Malpractice” New Law Journal 154.7142(1278)

Books

Brazier M, (1992), Medicine Patients and the Law, 2^nd Edition

Dworkin R, (1994) “Life’s Dominion: An Argument About Abortion and Euthanasia”, Sweet and Maxwell

Grubb A & Kennedy I, (2000) “Medical Law”, Butterworths, Third Edition

Jackson, E. (2003) Regulating Reproduction, Oxford: Hart Publishing

Mason J K, Mc-Call Smith A, and Smith R, (2002), “Law and Medical Ethics”, Oxford University Press

Montgomery J, (2001) “HealthCare Law”, Oxford University Press,

Stauch M, Tingle J, Wheat K, (2002) “Sourcebook on Medical Law”, Cavendish Publishing

Sheldon, S. (1997) Beyond Control: Medical Power and Abortion Law, London: Pluto Press

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Footnotes

^[1] Brazier M, (1992), Medicine Patients and the Law, 2^nd Edition

^[2] Bolam v Friern Hospital Management Committee [1957] 1 WLR 852

^[3] Whitehouse v Jordan [1981] 1 ALL ER 267)

^[4] McGhee v National Coal Board [1973] 1 WLR 1

^[5] Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.

^[6] See McGhee v National Coal Board [1973] 1 WLR 1

^[7] Cassidy v Ministry of Health [1951] 2 KB 343

^[8] (Lord Goff in Re F (Mental Patient: Sterilisation) [1990] AC 1)

^[9] Charlotte Wyatt Portsmouth NHS Trust (Applicant) v (1) Derek Wyatt (2) Charlotte Wyatt (by her guardian Cafcass) (respondents) and Southampton NHS Trust (intervener) [2004] EWHC 2247 (Fam)

^[10] (a child) (medical treatment: parent’s consent) [2004] All ER (D) 313 (Oct)

^[11] National Statistics Series AB No. 28: Abortion Statistics 2001 (HMSO Crown Copyright 2002).

^[12] Sheldon, S. (1997) Beyond Control: Medical Power and Ab