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COMMANDMENTS, SETBACKS AND RECTIFICATION
MEDICAL NEGLIGENCE
CHAPTER 1“MEDICAL NEGLIGENCE”
WHAT IS “NEGLIGENC
E” ??
Negligence as a tort is the breach of legal
duty to take care, which results in
damage, undesired by the defendant ( doctors), to the plaintiff ( patient).
OH…OK…I GET IT…
THEN WHAT IS “MEDICAL
NEGLIGENCE”?
Medical negligence is the breach of duty by
the doctors to take reasonable care
towards the patient , which inflict damages
or injuries to the patient.
CHAPTER 2“RESPONSIBILITIES OF MEDICAL PRACTITIONER
ACCORDING TO THE LAW”
WHAT IS “THE
STANDARD OF
CARE”??
Standard of care is that care in which a
reasonable man would take in the
circumstances.
As a general rule , persons who are engaged in professions requiring special skills or
expertise are required not only to exercise reasonable care but
must also exercise the standard of care expected from persons of
such profession , where in this case, doctors.
Standard of Care of Doctors
Practice within the scope of
their training & capabilities
Maintain confidentiality
Use the professional
title equally with your education
Use appropriate legal & ethical
guidelines when releasing
information.
Document accurately
Prepare and maintain health
records
Continued…Follow an
employer’s established
policies dealing with health care
contract.
Maintain & dispose of regulated
substances in compliance with
government guidelines
Follow established
safety procedures
Help to develop & maintain personnel, policy and procedure manuals
Meet the requirements
for professional credentialing
Follow legal guidelines &
maintain awareness of health care legislations
Basically, there are four elements to
establish a case of negligence
1Duty Of Care
2Breach Of Duty
3Damage and Injury
4Causation; Proximity and
Relationship between defendant (doctor)’s conduct and plaintiff
(patient)’s injury
Duty of Care
Duty of care is a legal obligation imposed on an
individual requiring that they adhere to a standard of reasonable care while
performing any acts that could foreseeably harm others
COURT CASE 101Davis vs Weiskopf, 1982
DUTY OF CARE IS ESTABLISHED BY
MEDICAL APPOINTMENT.
COURT CASE 101Ranier vs Grossman, 1973
CONSULTATION DID NOT ESTABLISH A DUTY OF
CARE
Breach Of DutyThe second element that the
patient has to prove isthat the doctor was careless. (or in legal terms, the doctor has breached his or her legal
duty of care towards the patient). He must show that
thedoctor fell below the required
standard of care. Thisis the Bolam test.
We’ll discuss about the Bolam test later in
chapter 3.
Damage & Injury
There must be a legally recognizable injury to the patient. When a patient
sues a doctor for negligence, the burden of
proof is on the patient.
Proximity and Relationship between defendant (doctor)’s conduct and plaintiff
(patient)’s injury
The patient must prove that the breach of duty by
the doctor was the proximate cause or direct
cause for the injury inflicted upon the patient.
CHAPTER 3“SUBSTANTIVE LAWS REGARDING
MEDICAL NELIGENCE”
So now, we know that, in
order to establish a case
of medical negligence, the four elements
must be present.
1A duty of care is owed by the doctor to the patient.
2The doctor was in breach of the appropriate standard of care imposed by the law
3Breach of duty caused the patient harm or
injury recognized by the law as meriting compensation.
4There is a proximity and Relationship between defendant (doctor)’s conduct and plaintiff
(patient)’s injury
I’m back..Now..WHO IS LIABLE FOR MEDICAL
NEGLIGENCE ??
However, if the doctor is employed or appointed by the
patients themselves, the
hospital authority is not liable.
1A hospital authority
is liable for the negligence of any one of its staffs.
2A private clinic is
liable for the negligence of its
resident staff.
3A general
practitioner (GP) is liable for his own
negligence and also the acts of anyone he or she employs.
COURT CASE 101Hillyer vs St Bartholomew’s
Hosp, 1909
A HOSPITAL IS HELD RESPONSIBLE ONLY
FOR DUE CARE & SKILL IN SELECTING THEIR
MEDICAL STAFFS.
COURT CASE 101Cassidy vs Ministry of Health,
1951
A HOSPITAL IS HELD LIABLE FOR THE
NEGLIGENCE OF ITS PERMANENT STAFFS.
WHAT ARE THE LAWS CONCERNING MEDICAL
NEGLIGENCE ??
Well, we have two substantial principles
regarding medical negligence…
…THE TORT PRINCIPLE…
…THE BOLAM PRINCIPLE…
…and some other principles..
THE TORT PRINCIPLE
What’s the history for the TORT OF NEGLIGENCE ???
It all started with a
SNAIL…No, I’m not kidding.
Tort law is a body of law that addresses and provides
remedies for civil wrongs not arising out of contractual
obligations. A person who suffers legal damages may be able to
use tort law to receive compensation from someone who legally responsible , or
liable, for those injuries.
Generally speaking, tort law defines what
constitutes a legal injury and establishes the
circumstances under which one person may be held liable for another's injury. Tort law spans intentional
and negligent acts.
The unintentional tort of negligence is the basis for medical negligence
claim & is the most common liability in
medicine.
The Tort Principle is only viable for medical negligence claim ONLY
IF THE FOUR ELEMENTS MENTIONED
EARLIER ARE FULLY ESTABLISHED.
You can still remember the four elements, right?
Tell me something I don’t know about this
tort thingy.
Sure..There are basically THREE classifications in
medical negligence claims.
1
Malfeasance
The performance of a totally wrongful &
unlawful act.
3
Nonfeasance
The failure to act when one should
2
Misfeasance
The performance of a lawful act in
an illegal or improper manner
THE BOLAM PRINCIPLE
What’s the history of BOLAM PRINCIPLE ???
COURT CASE 101Bolam v Friern Hospital
Management Committee [1957]
Mr Bolam – voluntary patient at a mental health institution -
undergo electro convulsive therapy -
suffered injuries - claimed a case of
medical negligence.
So, what happened in that case ??
Bolam argued that the doctors were negligent, for
1. not issuing relaxants
2. not restraining him
3 . not warning him about the risks involved.
…And, what was the outcome??..McNair J , the judge, at the first
instance noted that expert
witnesses had confirmed,
much medical opinion was
opposed to the use of relaxant
drugs,
manual restraints could
sometimes increase the risk of
fracture.
It was the common practice of
the profession to not warn
patients of the risk of treatment
(when it is small) unless they
are asked……
……He held that what was common practice in a particular profession
was highly relevant to the standard of care required. A person falls below the appropriate standard, and is negligent, If he fails to do
what a reasonable person would in the circumstances. But when a
person professes to have professional skills, as doctors do,
the standard of care must be higher. "It is just a question of
expression," said McNair J.
The conclusion of the case was quoted by the judge himself, McNair
J.
So, what was the conclusion ??..
“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 medical act …… Putting it the other way
round, a doctor is not negligent, if he is acting in
accordance with such practice, merely because there is a
body of opinion that takes a contrary view.”
Okay..so, WHAT ARE THE ELEMENTS OF THE BOLAM
PRINCIPLE ??
As usual, the four elements
mentioned must be established first.
In order for the plaintiff to prove
that the defendant has breached his
or her duty of care, the Bolam Principle
is applied.
A doctor can only be held negligent if the medical procedures
taken are not accepted as proper by a
responsible body of medical experts
(referred as expert witness).
The expert witness need not to be the smartest doctor &
prudent doctor in the world, but just by their
peers; normal and competent doctor in
the same area of expertise.
And the standard of care applied is not that of a professor of general practice, but that an
ordinary and competent doctor, given that the
standard of care is used during the time of the
case.
Under the Bolam Principle, medical expert witness’ opinion
plays the decisive role in the cases of medical negligence,
As what Mc Nair J said…“But where you get a
situation which involves the use of some special skill or competence, then the test
whether there has been negligence or not is not the the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the
standard of the ordinary skilled man exercising and
professing to have that special skill.”
COURT CASE 101Sidaway vs Bethlem Royal Hospital Governors , 1985
BOLAM PRINCIPLE ACCEPTS THAT
CONSENT DID NOT REQUIRE AN ELABORATE
EXPLANATION OF REMOTE SIDE EFFECTS
“RES IPSA LOQUITUR”
What’s that??
It’s the Latin word for
“THE THING SPEAKS FOR ITSELF”
Res ipsa loquitor is the doctrine of common
knowledge.
It is viable when the mistake done by the
doctor is TOO OBVIOUS and NOT DEBATABLE.
Thus , no expert witness is required
Cases that fall under res ipsa loquitur
Unintentionally leaving foreign
objects (sponges,
instruments , etc) inside the patient’s body.
Causing an infection by the use of
unsterilized instruments
Damaging healthy tissue
during an operation
Accidently burning or
injuring anaesthetized
patient
For this doctrine to apply, three conditions
must exist. 1The act of
negligence must obviously under the defendant’s
control
2The patient must not contributed to
the act
3It must be
apparent that the patient would not
been injured if reasonable care is
used.
BOLITHO PRINCIPLE
What in the world is Bolitho Principle ?
Lets just say Bolitho Principle is a departure
from the Bolam Principle.
COURT CASE 101Bolitho vs City & Hackney
Health Authority, 1997
PATRICK BOLITHO – 2 YEAR OLD BOY – HAS HISTORY OF HEART
SURGERY AND CROUP-LIKE SYMPTOMS.
One particular day, Bolitho suffered 3 episodes of
acute shortness of breath.
So, what happened??1st Episode
Ward sister, Sister Sallabank, made an
urgent summon to the senior paediatric
registrar, Dr. Horn. However, she failed to
attend but Bolitho recovered from this
episode.2nd Episode
The second episode occurred 2 hours later
and Sis Sallabank contacted Dr Horn again. She could not come and
sent Dr Rodgers, the senior house officer in paediatrics. However,
she also failed to attend as her bleeper ran out of
battery. Fortunately, Bolitho recovered.
3rd Episode Bolitho collapsed & suffered respiratory and cardiac arrest.
Although the medical staffs managed to resuscitate him, he
suffered severe brain damage and
subsequently died.
1It was agreed that if
the doctor attended the patient, the only
treatment to prevent the brain damage was
intubation
2However, the
defendant argued that even if Dr Horn
attended the patient, she would not have
intubated the plaintiff.
3There was evidence from one expert
witness that he would not have intubated whereas five other experts said that they would have done so.
As what Mc Nair J said;….Putting it the other way
round, a doctor is not negligent, if he is acting in
accordance with such practice, merely because there is a body of opinion
that takes a contrary view.”
To decide on this issue, the Bolam Principle ought to be
applied. There were two conflicting medical expert
evidences and HOWEVER, with accordance to the Bolam
Principle, the defendant would not be negligent because A reasonable body of medical
opinion agreed not to intubate,.
So what was the conclusion??
It is submitted that by using Bolam Principle, the Court confused the issue
of breach of duty and causation.
The House of Lords held that there would have to be a logical basis for the opinion not to intubate. This
would involve a weighing of risks
against benefit in order to achieve a defensible
conclusion
Lord Browne-Wilkinson delivering judgment in the
House of Lords in Bolitho held that the court is not bound to hold that a defendant doctorescapes liability for negligent treatment or diagnosis just because he leads evidence
from anumber of medical experts
who are genuinely of opinion that the defendant’s
treatment anddiagnosis accorded with sound
medical practice
His Lordship held that the word
“responsible” used by McNair J. in Bolam “show[s]
that the court has to be satisfied that
the exponents of the body of opinion relied on can
demonstrate that such opinion has a
logical basis.” This means that merely by showing that the defendant’s action was
supported by expert medical opinion will not automatically
exculpate him. The expertmedical opinion in question
has to have a sufficient logical basis.
“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 medical act …… Putting it the other way
round, a doctor is not negligent, if he is acting in
accordance with such practice, merely because there is a
body of opinion that takes a contrary view.”
Lets re-quote…
HisLordship further held that “if it can be demonstrated that the expert medical opinion is not
capable of withstanding logical analysis, the judge is entitled
to hold that the body ofopinion is not responsible.”
Thus, this would mean that even though there exists a body
of professional opinion sanctioning the defendant’s
conduct, the defendant can still be held
negligent if it cannot be demonstrated to the judge’s satisfaction that the opinion
relied onis reasonable or responsible.
This means that a judge will be entitled to choose
between two bodies of expert opinion and to reject an opinion which is 'logically
indefensible'.
This has been interpreted as being a situation where the Court sets the law not the
profession.
CHAPTER 4“PROBLEMS AND IMPLICATIONS
AROUSED BY MEDICAL NEGLIGENCE”
WHAT ARE THE PROBLEMS WITH
THE TORT LAWON MEDICAL NEGLIGENCE
CLAIMS ??
1ADVERSARIAL IN
NATURE
The tort system, being adversarial in nature
requires the litigating parties to determine the
subject matter of the controversy between them and supply the court with
the evidence onwhich they wish the court to decide. The task of the court is to do justice based on theavailable evidence and the
law.
In reality, it sometimes happens that litigation fails to achieve real
justice between the opposing parties as a result of inherent
weaknesses in theadversarial system and practical
disadvantages, which obstruct the proper functioning of
such a system
These weaknesses are equally applicable to medical negligence
litigation in much the same way as other types of litigation, which
include issues of judicial impartiality and competencies, disadvantages of the tactical
manoeuvring, partisanship and unreliability of witnesses and the unfairness that can result in such hearings when there is inequality
of legal representation.
2LENGTHY PERIOD OF LAWSUIT
Medical negligence claim takes a lot of time as delay occurs
before the plaintiff seeks legal advice
while waiting for information from the opposing side,
while the partieswait for experts to investigate and
produce their report, while the parties seek and
exchange documentary evidence while waiting for the trial date.
The case started on 23 December 1981 and the judgement was
delivered 7 November 1997.
IT TOOK 16 YEARS
For example, in the case of
Dr Chin Yoon Hiap v Ng Eu Khoon & Ors
For the caseFoo Fio Na v Hospital
Assunta & Anor
It started on 19 July 1982 and the final judgement
was on 29th December 2006.
IT TOOK 24 YEARS
OKAY…NOW WHAT ABOUT THE
PROBLEMS WITH BOLAM
PRINCIPLE ??
1Reluctance in making findings of negligence
against members of any honourableprofession
Generally, standards of behaviour within all professions were high.
The reluctance was not confined to medical profession as they were
understandably not comfortable in secondguessing the conduct and
opinions of respected professionals practising in their field of
expertise.
2Difficulties in setting the
standard, breach of duty to be judged by his
peers.
Judges have difficulties in dealing with cases shrouded with
intricacies and technicalities, which may be beyond the
comprehension of the judge who has not undergone the rigours of medical training. Medicine being an inexact science may at times produce outcomes that are not predictable. To reach a just and accurate decision, the matter is
best left in the hands of the medical experts who are more
capable of analysing such complex issues. Thus, the
question of whether the doctor is in breach of his duty is to be
judged by his peers.
Abandonment of the Bolam Principle in Australia…
COURT CASE 101Rogers vs Whitaker,1992
MS MAREE LYNETTE WHITAKER,47 LOST THE
SIGHT OF HER RIGHT EYE DUE TO INJURY SINCE CHILDHOOD. AFTER A
SURGICAL OPERATION BY MR CHRISTOPHER
ROGERS, AN OPHTALMIC SURGEON SHE LOST
BOTH HER EYES
Ms Whitaker suffered ‘sympathetic ophtalmia’. She filed a case of
negligence against Rogers for not informing her of the risk for
getting sympathetic ophtalmia.
Experts at the trial gave evidence that the condition would occur with a ratio of 1:14000. Thus,
even if Bolam Principle was applied, Rogers was not negligent as his actions were in accordance with a responsible body of medical
opinion.
However, the court rejected Bolam and stated that Rogers
breached his duty of care by not informing Whitakers of ALL the
relevant information she required. ~IT WAS DECIDED THAT THE RISK
OF SYMPATHTETIC OPHTALMIA, THOUGH IT WAS REMOTE, IS A
MATERIAL RISK.
Rogers vs Whitaker only abandoned the Bolam
Principle to doctor’s duty to disclose risks, it would seem that Bolam will still
apply to doctor’s duty to treat and diagnose in medical
negligence cases.
Same thing happened in Malaysia too..
Same thing happened in Malaysia too..
COURT CASE 101Foo Fio Na v Hospital Assunta & Anor, 1999
FOO FIO NA INVOLVED IN CAR ACCIDENT ON 1ST
JULY1982. SHE SUFFERED PARALYSIS.
WHAT ARE THE REPERCUSSIONS OF MEDICAL NEGLIGENCE TOWARDS
THE PATIENTS ??
Pain & Sufferin
g
DeathEconomic Loss
Incapacitating Injuries
Higher Insurance Premiums
HOW ABOUT THE IMPLICATIONS ON HEALTHCARE PROVIDERS ??
Note that doctors are only effected
when lawsuits are filed against them.
Defensive Medical
Treatment
Rising Insurance Premiums and Health Care Costs
Denial of Access to
Health Care
Stress for DoctorsErosion of Trust
in the Patient-
PhysicianRelationship
CHAPTER 5“MEDICAL NEGLIGENCE BASED
ON ISLAMIC VIEW”
How to relate the medical negligence
with the law in Islam?
There are three aspects in Islamic law of medicine
THREE ASPECTS1.Purposes of Medicine2. Principle of Medicine
3. Regulation of Medicine
Purposes of MedicineMaqasid Al Shari’at
Protection Of Ddiin, Hifdh Al-Ddiin:
Protection of ddiin essentially involves
‘ibadat in the wide sense that every human effort
is a form of ‘ibadat
Protection Of Life, Hifdh Al Nafs:
Medicine cannot prevent or postpone death since such matters are in the hands of
Allah alone
Protection Of Progeny, Hifdh Al Nasl. It ensures that children are cared for well so that they
grow into healthy adults who can bear children
Protection Of Wealth, Hifdh Al Maal
Medicine contributes to wealth generation by prevention of disease,
promotion of health, and treatment of any diseases
and their continuation
Principles of MedicineQawai’d Al Shari’at
PRINCIPLE OF INTENTIONEach action is judged by the
intention behind it, al umuur bi maqasidiha’ calls upon the physician to ask his inner
conscience
PRINCIPLE OF CERTAINTY (Qaidat Al Yaqeen.) In both the diagnosis of disease and
choice of treatment, modern medicine does not reach the standards of certainty demanded by the Law.
PRINCIPLE OF INJURY (qa’idat al dharar. )
Medical intervention is justified on the basic principle that
injury, if it occurs, should be relieved. The physician should however cause no harm in the
course of his work
PRINCIPLE OF HARDSHIP (qa’idat al mashaqqat)
In the medical setting a hardship is defined as any condition that
will seriously impair physical and mental health if not relieved
promptly
PRINCIPLE OF CUSTOM The generally accepted standard of medical care is defined by custom
Regulations of Medicine Dhawaabit Al Fiqh
OMNIBUS REGULATIONSThe physician must have
technical capability, and aim at excellence and quality work. He
must have balance in actions and attitudes, realize that he is carrying a great trust, and must
continuously undertake self-criticism
PHYSICIAN’S OBLIGATIONA sole medical practitioner is a
community is individually obliged to provide medical benefit and
relief as fard ‘ain
RESPECT FOR PATIENT AUTONOMY
It is for this reason that all decisions must be referred to the patient.He or she is best able to make decisions in the best interests of his or her life
VERACITY AND DISCLOSUREThe physician must tell the whole truth. Patients have the right to know the risks
and benefits of medical procedure
CONFIDENTIALITYRevealing patient secrets
violates loyalty which is the private and privileged
relationship of trust between the patient and the doctor
FIDELITYThe principle of fidelity
requires that physicians be faithful to their patients
CHAPTER 6“IDEAS FOR REFORMATION”
Moving to a “No-fault” SystemA radical solution to the problem is to move away from the current tort or
fault-basedsystem towards a “no-fault” based
system of liability for medical negligence
REFORMING THE EXISTING SYSTEM
Channels for Complaints in
Malaysia’s Health Sector
Setting up effective patient
complaint mechanisms
Legislating the principles of
law
The Malaysian Medical Council
(MMC)
Introducing pre-action protocols Setting up a
Medical Review Bureau
THAT’S ALL FOLKS.THANK YOU
