Understanding Clinical Negligence

By Dr Bib Vhadra / 11 Dec 2019

Lawyer Dr Bib Vhadra outlines the three main elements involved in a negligence claim and discusses the case law involved in them

One of the most common legal challenges that any clinician faces is an action in clinical negligence; this is no different for an aesthetic practitioner and the same basic legal rules and principles would apply. However, it is often misunderstood what a claim in clinical negligence involves and what a patient (or claimant) would need to prove in order to succeed in a claim of clinical negligence.

The law of negligence

The law of negligence has developed incrementally over time through legal precedents established by the courts and is a subset of a body of civil law known as tort.1,2 The law of tort involves the infringement of a legal right or a legal duty and governs what occurs when one party sues another party for an infringement of that right or duty. The party bringing the case (or the ‘claim’) is known as the ‘claimant’ and the party against whom the case is brought is known as the ‘defendant’.1

In simple terms, negligence can be defined as a breach by a defendant of a legal duty of care owed to a claimant that results in actionable damage or loss to the claimant unintended by the defendant. An analysis of this definition indicates that there are three main elements involved in a claim for negligence:1

  1. Duty of care
  2. Breach of duty
  3. Causation

These elements would also apply to a clinical negligence claim against an aesthetic practitioner and, as in all negligence claims, the burden falls on the claimant to prove all these elements, to a standard known as ‘the balance of probabilities’.2 This means that the claimant is required to prove to a court that it is more likely than not that the elements of negligence are satisfied. Or in other words, that there is a greater than 50% probability that these elements are satisfied.

Duty of care

The first element in a negligence claim involves proving that the defendant owed the claimant a duty of care. A duty of care can be defined as a legal obligation, which is imposed on a party, requiring adherence to a standard of reasonable care in situations that could foreseeably harm others.3

The principles of the imposition of a duty of care have had a protracted evolution in the courts. A milestone in the development of duty of care came with the well documented House of Lords’ decision in Donoghue v Stevenson in 1932.4 Although, up until that point, there existed contractual obligations regarding the performance of a contract with reasonable care and skill, there was no real test for a duty of care to individuals that may not be party to a contract.

The decision in Donoghue v Stevenson determined the principles upon which the law of negligence is based. The facts of the case involved the claimant (Mrs Donoghue) suffering gastroenteritis and shock as a result of drinking ginger beer that was contaminated with the remains of a decomposing snail.4 The claimant was unable to bring an action against the manufacturer or the vendor in contract law since she was not a party to any contract, as she had not bought the offending bottle of beer herself (it was bought for her by a friend).4

The difficult issue that the House of Lords were required to decide was whether the defendant (in this case the manufacturer of the ginger beer) owed any duty of care to the end user and, more generally, in what cases or circumstances a party would owe a duty of care to another party.4

The House of Lords held by a majority of 3:2 that the claimant’s case disclosed a cause of action. The court held that a manufacturer does owe a duty of care to an end user. More importantly, the Lords also established the ‘neighbour principle’ in order to determine whether a defendant would owe a duty of care in any novel situation that would arise and require determination before a court.4 This test, outlined by Lord Atkin in his judgement, indicates that there must be a close relationship or proximity between defendant and claimant; this is not proximity in the physical interpretation of the word, but in the sense that the other party is in mind when undertaking a particular act.

This neighbour test was the test adopted by the courts in determining whether any given novel situation gives rise to a legal duty of care. The test for establishing a duty of care in novel situations was further developed in the House of Lords’ decision in Caparo Industries PLC v Dickman in 1990.5

The facts of Caparo involved an action against the defendant accountants (Dickman) by the claimant shareholders, alleging that the defendants owed the claimants a duty of care in producing an audit report, required by statute.5 The claimants had bought shares in a company, as part of a takeover, relying on the audit report produced by the defendant. However, it was later found that the company profits were misrepresented in the audit report, causing the claimant loss.5 The House of Lords reversed the decision of the Court of Appeal and held that no duty of care had arisen in relation to existing or future shareholders; in doing so, the House of Lords established a tripartite test for determining whether a duty of care is owed in a novel situation, re-defining the neighbour principle in Donoghue v Stevenson.4 The three questions that needed to be considered as part of the three-part test in the determination of duty of care were:

  1. Whether there is reasonable foresight of harm to the claimant
  2. If there is sufficient proximity of relationship between the claimant and the defendant
  3. Whether it is fair, just and reasonable to impose a duty

In terms of a clinical negligence claim, it is more than often established that a clinician owes a patient a duty of care and is rarely in dispute between parties. This established duty of care extends to a number of clinical situations, and may include, amongst others:

  1. Correctly assessing a patient’s condition, considering any symptoms and patient’s views and conducting an appropriate examination and tests
  2. Working within the limits of personal competence
  3. Disclosing any material risks involved with any recommended treatment
  4. Advising of any reasonable alternative or variant treatments
  5. Keeping professional knowledge and skills up to date
  6. Maintaining accurate, clear and legible records
  7. Consulting and taking advice from colleagues and specialists where needed
  8. Referring a patient to another practitioner, when in the patient’s best interests6

However, there may be situations which the courts may not have encountered before, especially in a rapidly expanding field such as aesthetic medicine; in these cases, known as novel duty situations,7 the tests outlined above would be used by the courts to determine whether a clinician owes a duty of care to a patient for that given situation.

Breach of duty

Once it is established that a duty of care exists, the second stage in a negligence claim is to consider whether the defendant breached that duty of care. In determining this, the claimant is required to prove that the defendant failed to reach a standard required by law to fulfil that duty.8

In general, a two-stage test is employed to determine whether a claimant has breached their duty of care:

  1. The courts would assess what standard of care the defendant should have exercised (a question of law)
  2. Whether the defendant fell below the standard of care that they should have exercised (a question of fact)

In assessing the standard of care, in a normal negligence case where the defendant may not be a clinician (or what is known as a skilled defendant), the test derives from the case Blyth v Birmingham Waterworks9 where it was stated, ‘Negligence is the omission to do what the reasonable man would do, or do something that the prudent or reasonable man would not do’.

Hence it can be seen that the general standard of care that a defendant must meet in order to discharge their duty of care is that of the ‘reasonable man’ or rather, the ‘reasonable person’. In the case Glasgow Corp v Muir,10 Lord MacMillan clarified that the reasonable person test is objective and impersonal. Furthermore, it is not a question of the defendant doing their utmost or achieving the highest standard of care in discharging their duty, but simply to come up to the standard of the reasonable person.

However, the situation is slightly different when considering a skilled defendant such as a clinician. The test for the standard of care for a skilled defendant comes from the 1957 case Bolam v Friern Hospital Management Committee.11 The facts of this case involve the claimant (Mr Bolam) agreeing to electro-convulsive therapy as a voluntary patient at a hospital run by the defendant (Friern Hospital Management Committee). However, Mr Bolam was not given any muscle relaxant and not restrained during the procedure; unfortunately during the procedure Mr Bolam flailed around violently, suffering serious injuries including a fracture of the acetabulum.11 Mr Bolam sued the defendant hospital management committee on the basis that they were negligent in not administering muscle relaxants, not restraining him and not advising him of the risks involved.

The problem that the court faced in determining breach of duty in Bolam was the standard that the skilled defendant should have exercised in treating the claimant. The court, in this case, modified the normal ‘reasonable person’ test and ruled, ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art. A doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion which takes a contrary view’.11

This test, known as the Bolam test, essentially stipulates that for a claimant to prove that a clinician breached their duty of care, they would need to prove that the clinician acted in a way which was not supported by a reasonable body of medical opinion.4 In practice, this would be achieved through the use of expert evidence and the defendants would seek to offer expert evidence to prove that they were acting in accordance with a reasonable body of medical opinion.

The Bolam test has received criticism because it can be perceived that the claimant is disadvantaged; whereas a claimant would be required to prove that there is no responsible body of medical opinion that would have approved of the defendant’s actions, a defendant merely needs to find an acknowledged expert to agree that their actions were within the range of acceptable practice. Furthermore, similar to the reasonable person test, the question in the Bolam test is not whether the defendant’s actions were ideal practice, but whether they were above a minimum level of practice.

A number of cases have sought to clarify the Bolam test, one of the most important being Bolitho v City and Hackney Health Authority.12 In this case, the House of Lords held that the courts are not bound to exonerate a clinician just because he brings evidence from a body of medical experts that approve the approach taken, but that, if it is the case that the medical opinion is not capable of withstanding logical analysis, then the court is entitled to hold that body of medical opinion as unreasonable.12

It is important to note, that breach of duty regarding the disclosure of risk is now not governed by the Bolam test since the decision in Montgomery v Lanarkshire, which ruled that clinicians had a duty of care to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment.13

Causation

The third stage in a negligence claim would be to consider causation. Once it had been established that the defendant owed the claimant a duty of care, and that the defendant had breached that duty of care, then the claimant would be required to prove, on the balance of probabilities, that the breach of duty actually caused the damage or loss that the claimant suffered, and that it was not too remote.14

The general test for causation is known as the ‘but for’ test and stems from the decision in the case Barnett v Chelsea and Kensington Hospital Management Committee.15 The facts of this case involve three night watch-men attending the defendant hospital at 8am complaining of nausea after drinking tea earlier at 5am. The casualty officer on duty refused to see the patients, advising a nurse over the phone to tell the patients that they should go home and see their own doctors. It transpired later that the night watchmen had sustained arsenic poisoning and one of them, Mr Barnett, died later in the day. Mr Barnett’s widow brought a claim against the defendant hospital for negligence.15

However, the courts dismissed the claim and found that the defendants were not negligent. Although the defendants were negligent to the extent that they had breached their duty of care, through the casualty doctor failing to attend to Mr Barnett, expert evidence was admitted that even if the patient was seen, admitted and treated, he would have died in any event.15

Therefore it was found that although the defendants had breached their duty of care to the claimant, this had not caused his death, hence the claim failed on causation. The ‘but for’ test for causation, can simply be summarised as, ‘But for the defendant’s breach of duty, on the balance of probabilities, would the harm claimed for have been sustained by the claimant?’16

If the claimant would not have sustained the harm claimed for, but for the defendant’s breach of duty, on the balance of probabilities, then causation would be satisfied on this level. However, if the claimant would have sustained that harm, in any event, despite the defendant’s breach of duty, then causation would fail, as was the case in Barnett v Chelsea and Kensington.15

An important issue when considering causation is the concept of remoteness. The harm suffered or caused by the defendant’s breach of duty must not be too remote in order for it to be recoverable in a claim for negligence. The test for remoteness was established by the case known as The Wagon Mound.17 In simple terms, the case established that in order for the damage to be recoverable it must have been reasonably foreseeable at the point of breach of duty.

Remoteness in relation to causation has been further developed through subsequent case law, to include (for example) rules that will allow recovery of damages even if the exact injury was not foreseeable but the type of injury was foreseeable18 and also rules that extend liability, even if the full extent of harm was not foreseeable.19

Recommendations for best practice

There are a number of steps that the aesthetic practitioner can take to reduce their risks and exposure to a clinical negligence claim. These steps would generally need an examination of their individual clinical practice and the potential breaches of their duty of care and how these can be avoided or at least minimised. For example, these steps could include but shouldn’t be limited to:

  • Conducting a thorough examination paying special attention to presenting complaints and concerns, so that all treatment options can be offered and a full disclosure of material risks involved with each treatment option
  • Managing expectations and not overselling treatments
  • Taking a full medical history, including a history of previous aesthetic treatments and any adverse reactions
  • Obtaining written informed consent, disclosing all material risks. In this context the test of materiality is whether, in the circumstances, of the particular case:
    1. a reasonable person in the patient’s position would be likely to attach significance to the risk
    2. or the practitioner is or should reasonably be aware that the particular patient would be likely to attach significance to it
  • Maintaining accurate, legible contemporaneous records documenting all discussions and communications with patients, treatments, dosages and equipment settings
  • Taking pre- and post-operative photographs and storing these safely
  • Practicing within the scope of one’s competence, ensuring adequate training and experience is gained in treatments offered and the management of any potential complications
  • Referring a patient when in their best interests to do so
  • Using products and carrying out treatments only within their specified guidelines
  • Encouraging patient to follow post-operative guidelines, providing these in writing and documenting the same
  • Maintaining confidentiality at all times. If there is a requirement to divulge details of a patient’s treatment (e.g. in the event of an adverse reaction), to obtain the patient’s written consent first

If problems do arise, the reasons for patients to embark on litigation against a clinician are numerous and often multifactorial; the first port of call for any aesthetic practitioner would be their indemnity insurance provider.

Although there may be any number of defenses available for any particular clinical negligence claim, all stakeholders would agree that, similar to the age-old adage ‘prevention is better than cure’, minimising and avoiding the risk of adverse events and associated litigation is always preferential.

Conclusion

The rules pertaining to clinical negligence are both complex and constantly evolving, especially in a rapidly advancing field such as aesthetic medicine. It is of paramount importance to all aesthetic practitioners to be aware of the basic legal rules that govern a clinical negligence claim and to maintain a practice that is risk-averse.

References
  1. Jones MA, Dugdale AM, Simpson M, Clerk and Lindsell on Torts, 22ND edition, Chapter 8, Sweet and Maxwell Ltd, 2017
  2. Kestemont L, Handbook on Legal Methodology: From Objective to Method, Intersentia publishers, 2018
  3. Jones MA, Dugdale AM, Simpson M, Clerk and Lindsell on Torts, 22ND edition, Chapter 8, Sweet and Maxwell Ltd, 2017
  4. E-lawresources.co.uk, Donoghue v Stevenson, 1932 <http://www.e-lawresources.co.uk/Donoghue-v-Stevenson.php>
  5. E-lawresources.co.uk, Caparo Industries v Dickman, 1990 <http://e-lawresources.co.uk/cases/Caparo-Industries-v-Dickman.php>
  6. Powers M, Barton A, Jacson B, Powers and Harris Clinical Negligence, 5th edition, 2015
  7. Jones MA, Dugdale AM, Simpson M, Clerk and Lindsell on Torts, 22ND edition, Chapter 8, Sweet and Maxwell Ltd, 2017
  8. Jones MA, Dugdale AM, Simpson M, Clerk and Lindsell on Torts, 22ND edition, Chapter 8, Sweet and Maxwell Ltd, 2017
  9. Casebriefs.com, Blyth v Birmingham Waterworks <https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/negligence/blyth-v-birmingham-waterworks-co/>
  10. Webstroke.co.uk, Glasgow Corp v Muir, 1943 <https://webstroke.co.uk/law/cases/glasgow-corp-v-muir-1943>
  11. E-lawresources.co.uk, Bolam v Friern Hospital Management Committee, 1957 <http://www.e-lawresources.co.uk/Bolam-v--Friern-Hospital-Management-Committee.php>
  12. E-lawresources.co.uk, Bolitho v City & Hackney Health Authority, 1997 <http://www.e-lawresources.co.uk/Bolitho-v-City--and--Hackney-Health-Authority.php>
  13. https://www.supremecourt.uk/cases/docs/uksc-2013-0136-judgment.pdf
  14. Jones MA, Dugdale AM, Simpson M, Clerk and Lindsell on Torts, 22ND edition, Chapter 8, Sweet and Maxwell Ltd, 2017
  15. E-lawresources.co.uk, Barnett v Chelsea and Kensington Hospital, 1969 <http://www.e-lawresources.co.uk/Barnett-v-Chelsea--and--Kensington-Hospital.php>
  16. Jones MA, Dugdale AM, Simpson M, Clerk and Lindsell on Torts, 22ND edition, Chapter 2, Sweet and Maxwell Ltd, 2017
  17. https://www.lawteacher.net/cases/overseas-tankship-v-morts-dock.php
  18. E-lawresources.co.uk, Hughes v Lord Advocate, 1963 <http://www.e-lawresources.co.uk/Hughes-v-Lord-Advocate.php>
  19. Lawteacher.net, Defence in an accident claim, February 2018 <https://www.lawteacher.net/free-law-essays/contract-law/defence-in-an-accident-claim-contract-law-essay.php>

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