Medical Negligence. CUHK Med 5 Surgery Refresher Course 28 June Dr. LEE Wai Hung, Danny. MBChB, MD, FRCS, FHKAM(Surgery) LLM(Medical Law), JD

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1 Medical Negligence CUHK Med 5 Surgery Refresher Course 28 June 2013 Dr. LEE Wai Hung, Danny MBChB, MD, FRCS, FHKAM(Surgery) LLM(Medical Law), JD Are You Bothered?

2 Overview of Today s Talk Misconceptions Misconduct vs. Negligence Legal elements Special areas Clinical guidelines Informed consent Criminal negligence Risk management Misconceptions Adverse outcomes after treatments are always related to negligence Patients sue because they received negligent treatments Negligence claims always go to the court Professional misconduct equals to negligence Trainees are exempted from liability

3 Negligence = Litigation? Negligence = Litigation? Of cases opened worldwide in 2012, around onefifth were related to claims Among medical claims, 55% settled; another 44% were successfully resisted. Only 1 % went to trial Medical Protection Annual Report 2012 Society

4 Why Patients Sue? What Patients Want?

falling short of the standards expected among registered medical practitioners

5 Ethics vs. Law Misconduct vs. Negligence No definition in the MRO Interpreted by the Court of Appeal as conduct falling short of the standards expected among registered medical practitioners KKH v MCHK 1988 Disgraceful, Dishonourable, Unethical conducts How about mere inadvertence and carelessness? The tort law of negligence

MCHK Figures http://www.mchk.org.hk/annual/eng/2010/table.pdf What is Negligence?

6 MCHK Figures What is Negligence? Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do Blyth v Birmingham Waterworks 1856

7 Legal Elements Duty of care Breached the duty Fall below the standard expected of a medical practitioner The act / omission Caused Injury, physical and/or psychiatric Duty of Care Legal requirements Foreseeability of harm Proximity of relationship Fair, just and reasonable Established doctor-patient relationship

8 Duty of Care Things may not be that clear-cut Consider the following scenarios A passenger collapsed in a MTR train, you performed CPR for him and broke 4 ribs during the resuscitation A patient was admitted to your ward through AED, the nurse informed you, but you were engaged in another case. The patient died before you attended him A young patient died suddenly; when you told his mother about the bad news, she fainted and later developed major depression You performed vasectomy for a middle-aged man; however, his girlfriend became pregnant 2 years later Breach of the Duty Layman s term: NOT UP TO STANDARD What is the Standard in the eyes of the law? what a reasonable man would have done under the circumstances In the medical law context, the Bolam test applies: 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 Bolam v Friern Hospital Management Committee 1957

9 The Bolam Test: Criticisms Excessive deference to medical opinions Experts testimony plays determinative role Expert trial rather than judicial trial a responsible body means a single opinion? Too high a hurdle for claimants to sue successfully In the UK, between , all 6 medical negligence claims tried before the House of Lords were unsuccessful Jones M Tort Law Rev 1999 Bolitho the Court s role The Bolitho (logical analysis ) Test 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 Bolitho v City & Hackney HA 1997 the court takes a proactive role to scrutinize experts opinion the court is the final arbiter, not the expert

10 Lower Standard for Trainees? The English law position is: NO The Standard of care is judged by reference to the post of the defendant, not his / her personality or experience The law requires the trainee s standard of care to be measured against a reasonable consultant A junior, as part of the learning process, should be able to identify when to call for assistance from a more experienced colleague in order to discharge the duty of care Causation Legal causation NOT medical causation The but for test Materially contributed Difficult to prove causation in delayed in treatment, failure to attend cases e.g. Barnett v Chelesa & Kensington HMC 1968 Bolitho 1997

11 Expert Opinion Medical practice is complex, the court may not possess the ability to decide on some technical matters. In medical negligence claims, experts are usually required to give the court an idea of what constitutes a reasonable standard of care. (The Bolam test) Other areas: causation, quantum assessment,etc. Duty of Experts (The expert s) duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. Davie v Lord Provost 1953 Independent, impartial, overriding duty to the court NOT to the instructing party In reality

12 Clinical Guidelines (CG) Clinical Guidelines are systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances The Institute of Medicine 1992 The New Standard of Care? Will CG be used to set new Standards of Care in medical negligence claims? as a Sword or Shield in the MC or the courts? Do I need to know every new CG?

13 Sword or Shield? Comply with CG Bolam-defensible Zarb v Odetoyinbo 2006 Cowley v C & M Strategic HA 2007 Royal College s CG Local hospital s CG Deviate from CG fall below standard Penny & others v East Kent HA 2000 Deviate from CG exercise clinical judgment A v North East London Strategic HA 2005 Do I Need to Know Every CG? It would be too onerous for doctors to be aware of every new guidelines. Crawford v Charing Cross Hospital 1953 Doctors have a responsibility to keep abreast of their knowledge. Gascoine v I1an Sheridan & Co GMC: good medical practice required doctors to be aware of relevant guidelines and development in their own fields.

14 Informed Consent Ethics Respect patients right to autonomy Legal Requirement Civil law of tort (trespass to person) Criminal law of assault / battery Code of Professional Conduct Section 2 Consent to Medical Treatment Failure to Inform once the patient is informed in board terms of the nature of the procedure which is intended, and gives consent, that consent is real, and the cause of action on which to base a claim for failure to go into risks and implications is negligence, not trespass. Chatterton v Gerson 1981 There is no English Law doctrine of informed consent and a person. may succeed in a claim for failure to inform or warn only if the failure alleged amounts to negligence. The Creutzfeldt-Jakob Disease Litigation 1995

15 Case Illustration Mr. X consented and underwent a laparoscopic cholecystectomy. The surgeon inadvertently cut the CBD which required conversion to open surgery and further treatment. The surgeon did mention the possibility of conversion, but did not specifically mention the risk of CBD injury. Now the patient came back and said: Dr. you didn t inform me about that risk. If you had told me, I would not have consented to the operation. Questions Is the consent a valid one? Any possibilities on negligence claims? A Practical Question How much risks should I disclose to my patient? Inherent risks Serious risks Substantial risk of grave consequences Special risks Material risks Sidaway v Board of Governors of BRH & MH 1985 Did the Bolam test play a role here?

16 An English Case Ms Chester suffered from back pain, and was advised by Dr Afshar to undergo an elective spine surgery. The doctor did not explain to her that even if the operation conducted without negligence, there was a small risk (0.9-2%) that the patient would develop cauda equina syndrome. Ms Chester reluctantly received the surgery She developed the syndrome and sued Dr Afshar Patient s Right Approach Lord Steyn: A surgeon owes a legal duty to a patient to warn him or her in general terms of possible serious risks involved in the procedure. In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery. Chester v Afshar 2004

17 Practical Caveat Not only a duty to inform, but the patient properly understands the nature and implications of the proposed treatment (2.7.iii CPC) The doctor needs to take reasonable steps to present information in a way that i) is appropriate in the circumstances ii) patients will be able to understand Lybert v Warrington HA 1996 Criminal Negligence

18 Criminal Negligence It is possible to charge a doctor for manslaughter if the doctor s conduct amounts to gross negligence. How gross is gross? In an English House of Lords case having regard the risk of death involved, the conduct of the defendant was so bad in all circumstances as to amount in their judgment to a criminal act or omission A jury s decision R v Adomako 1995 Summary Most complaints are not related to negligence Only a small percentage patients who had adverse outcome due to negligence would sue Professional misconduct encompasses a wider (ethical) perspective than medical negligence Civil medical negligence claims involve complex legal elements Clinical guidelines may be used by the court or MCHK to assess clinical standard of care Failure to inform risks before procedures would be a ground to claim under negligence

19 Risk Management Develop good interpersonal communication skills Effective documentation Keep abreast of the medical developments and clinical guidelines Remember: obtaining consent is a process of disclosure and deliberation rather than just signing of a consent form. Learn how to deal with adverse outcomes including open disclosure and complaints handling Seek assistance from seniors and medical defense organizations early rather than late Further Information Useful websites (CPC & Judgments) (MPS case books) (HA Risk Alert) (NICE guidelines) (HK case laws) My dannywhlee@gmail.com

20 Enjoy Your Profession after all, medicine is about curing, not litigation Wilsher v Essex AHA 1987

Consent. Simon Britten. August 2016

Consent. Simon Britten. August 2016 Consent Simon Britten August 2016 Judge Cardozo 1914 every human being of adult years and sound mind has a right to determine what should be done with his body, and a surgeon who performs an operation