What is Medical Negligence?

The term negligence means the act or the failure to take care of something or someone, and as a result of the acts or omissions, injury happens to another person. There are two types of negligence the first one is civil negligence and the second is malpractice negligence (Manson 2006). Malpractice negligence relates to negligence done by professionals and usually filed in civil courts to get compensation for the wrong that was done.

In some cases, a person may lose an in a criminal case but win in the civil court an example of this is the L.J Simpson case. L.J Simpson got acquitted of all charges in the criminal trial but lost civil court (CNN 1994). It is important to note that negligence in civil law does not always lead to criminal negligence; civil case negligence does not require the imprisonment of the perpetrator if found guilty.

There are three essential principles of tort law that an individual has to prove to claim damages. The first one is the plaintiff has to determine that duty of care was owed. Secondly, the plaintiff has to show that was a breach of the burden of responsibility and finally as a result of the defendant acts or omission the plaintiff suffered severe harm.  In medicine, a critical part of negligence proceedings is determining what the standard of care was at the time the incident happened.

Duty of care

To determine the duty of care the courts use the neighbour’s test, in law, a neighbour is not limited to your family and the people who live close to you. It is anyone who will be affected by your acts and omissions, examples of duty of care are: employers to employees, teachers to students, parents to children, the government to its people and health caregivers to their patients and manufactures to it, customers.

The case that changed the meaning of the “neighbours test” principle to determine the duty of care is the Donoghue v Stevenson case in 1932.  “Mrs Donoghue the plaintiff took the manufacture of ginger beer to court because she suffered loss as result of drinking one of the products that had a decomposing snail it, the product was bought and opened by a friend”. The first time the case went to the court, the judges ruled in favour of the manufactures because according to the law at that time duty of care was only owed to your immediate neighbour and this case the retailer.

They further stated that the plaintiff should have sued the retailer and the not the manufacturer, after several appeals in the high court the case was taken to the House of Lords that ruled in favour of the plaintiff. This case set a precedent on how the courts applied the neighbour’s test principle in Tort law. The House Lords extended the duty of care to anyone that is affected by one’s action or omissions and not just the ones close to you (Erika Chamberlain 2010).

Breach of duty of care

After the plaintiff has determined that Duty of care was owed the next step is to prove whether a duty of care was breached. This is based on the concept of reasonable foreseeability. Reasonable foreseeability is applied to determine what a person of a sound mind would have done in a similar situation to prevent injury. In professional malpractice cases, the courts bring other professionals in the same field to find out what they would have done in a similar situation, this is what sets the law or the standard of care (Meg Wallace 1995).

In a medical setting, this changes from time to time depending on the currently existing knowledge in the field. An excellent example of this principle is the case between Roe V ministry of health in 1954. This was a case that led to the plaintiff being quadriplegic due to the anaesthesia that was used during surgery. When the case was taken to the courts, the judges ruled in favour of the doctor because based on the information that was known that time there was no way the doctor could have understood the ramification of the procedure (Maltby, Hutter et al. 2000).

Another example is the case between MR Spivey and ST Thomas hospital, “MR Spivey who was admitted in St Thomas hospital with pneumonia and fibril, died as a result of head wounds he suffered after falling from the window in the hospital during the night when he was confused and delirious”.

Mr Spivey’s family later sued the hospital for damages alleging that the hospital did not do much to prevent harm from happening. The court ruled in favour of the plaintiff because the plaintiff was able to provide the court with an alternative of what a reasonable person would have done to ensure that harm did not happen (Meg Wallace 1995).

In cases like these, the court factors in time, that is how long it took from the time the risk was reported and what time the plaintiff suffered injury. If say an individual goes in a shop slips and suffers severe harm, and the plaintiff decides to Sue the shop owner. The court would consider how long it took from the time the risk was reported and the time it took for the staff to remove the danger. If the injury happened seconds after the threat was made aware. Then even if the plaintiff is able to prove negligence and as a result of the defendant’s failure to remove the risk the plaintiff suffered harm, it would be hard to provide an alternative of what a reasonable shop owner would have done in similar situation.

After proving that duty of care is owed and breached the plaintiff has to also show that as a result of the defendant’s carelessness the plaintiff suffered loss or injury. To explain this let’s look at the case between Hamilton and Nuroof Company. “Nuroof was a company that repaired roofs in houses. It was standard practice in the company for any employee when fixing the roof to pass a bucket full of bitumen to a man above him. One day he spilt the bucket full of bitumen and suffered bad burns”.

Mr Hamilton sued the company alleging unsafe working environment, the judge ruled in favour of the plaintiff stating that the company had a duty of care to ensure that no harm happens it its employees. In this case, the plaintiff was able to prove the three elements that constitute negligence (Ridley 2006). Sometimes it could the other way where nothing could have been done to prevent injury even though the plaintiff is able to prove to all the three major elements that constitute negligence (Christoffel 1982).

For example, Barnett V Chelsea Kensington hospital, “Mr Barnett worked as a security guard at night, one night he drunk tea and soon after that he started vomiting and fail violently sick. When he went to the hospital, he was dismissed and was advised by the care staff that he will be fine by the next morning. Mr Barnett later died in the morning, and when the autopsy was done the medical examiner found that Mr Barnett died of arsenic poison he consumed probably in the tea”.  Mr Barnett’s family later sued the hospital for negligence because they were liable for by law for the action of their staff. However, in this case, the courts ruled in favour of the hospital in that there was nothing that could have done to prevent harm because there was no cure for arsenic poisoning (e-lawresources 1969).

Consent

The word consent as it relates to medicine is the act of deliberation that an individual with good mental capacity has, to make a well-informed decision based on a recommendation made by another person. Consent takes up the physical, reflective and determined power to act on these recommendations.

Touching and caring for people is part of work in the medicine and care work and according to the law, caregivers are not to touch a patient without their consent. A large part of medical consent is the principle of informed consent; this is the ability of a patient to make an informed decision regarding their care. Consent is also based on the law of trespass and in this case trespass to individual’s autonomy.

Three main principles constitute consent, the first one is Consent has to be voluntary, meaning that in every agreement either verbal or written consent is agreed. Therefore consent that is given under the influence of alcohol and rungs does not stand in court.

Secondly,  consent has to be specific meaning that the agreement should state precisely what an individual agrees to. For example, consent to abort a baby or amputation of a limb are all specific procedures.

Finally, Consent has to come from a competent person, meaning that consent given by an individual suffering from mental end illnesses like dementia and bipolar would only stand depending on the psychological state the individual was in. In such cases that a power of attorney is made on behalf of them by either the family or the Supreme Court (Wallace 1995).

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