The patient presented with symptoms of tuberculosis but both the consultant physician and the consultant surgeon took the view that Hodgkin's disease, carcinoma, and sarcoidosis were also possibilities, the first of which if present would have required remedial steps to be taken in its early stages. Instead of waiting for the results of the sputum tests, the consultants carried out a mediastinoscopy to get a biopsy. The inherent risk of damage was to the left laryngeal recurrent nerve, even if the operation was properly done. In the event, only tuberculosis was confirmed. Unfortunately, the risk became a reality and the patient suffered a paralysis of the left vocal cord. The decision of the physician and the surgeon to proceed was said by their expert peers to be reasonable in all the circumstances.[3]
The trial judge initially held that the surgeon had been negligent for failing to use a different surgical technique that was advocated by one group of medical experts. However, the Court of Appeal reversed the decision, and the House of Lords upheld that reversal, stating that "differences of opinion and practice within the medical profession are inevitable, and that a court's preference for one medical opinion over another is not a basis for finding negligence". This decision reaffirmed the Bolam principle, which holds that a doctor will not be considered negligent if they have acted in accordance with a responsible body of medical opinion,[4] although the later case of Bolitho somewhat qualified Bolam.[5]
↑ Buckley, Richard A. (2017). The law of negligence and nuisance. Butterworths Common Law Series (Sixthed.). London: LexisNexis. 7.13. ISBN978-1-4743-0715-4.
↑ Jackson, Rupert M.; Powell, John L. (2022). Jackson & Powell on Professional Liability. The Common Law Library (9ed.). London: Sweet & Maxwell. 13-066 (fn 157). ISBN978-0-414-09040-8.
↑ Ecclestone v Medway NHS Foundation Trust[2013] EWHC 790(QB)at para. 12(12 April 2013)
Negligence is a failure to exercise appropriate care expected to be exercised in similar circumstances.
Res ipsa loquitur is a doctrine in common law and Roman-Dutch law jurisdictions under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved in the context of tort litigation. Although specific criteria differ by jurisdiction, an action typically must satisfy the following elements of negligence: the existence of a duty of care, breach of appropriate standard of care, causation, and injury. In res ipsa loquitur, the existence of the first three elements is inferred from the existence of injury that does not ordinarily occur without negligence.
Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Claims of medical malpractice, when pursued in US courts, are processed as civil torts. Sometimes an act of medical malpractice will also constitute a criminal act, as in the case of the death of Michael Jackson.
In common law, battery is a tort falling under the umbrella term 'trespass to the person'. Entailing unlawful contact which is directed and intentional, or reckless and voluntarily bringing about a harmful or offensive contact with a person or to something closely associated with them, such as a bag or purse, without legal consent.
In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. Bolam was rejected in the 2015 Supreme Court decision of Montgomery v Lanarkshire Health Board in matters of informed consent.
Anthony David Bland was a supporter of Liverpool injured in the Hillsborough disaster. He suffered severe brain damage that left him in a persistent vegetative state as a consequence of which the hospital, with the support of his parents, applied for a court order allowing him to "die with dignity". As a result, he became the first patient in English legal history to be allowed to die by the courts through the withdrawal of life-prolonging treatment including food and water for the injuries.
In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialised set of rules determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.
In English tort law, there can be no liability in negligence unless the claimant establishes both that they were owed a duty of care by the defendant, and that there has been a breach of that duty. The defendant is in breach of duty towards the claimant if their conduct fell short of the standard expected under the circumstances.
Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law.
Therapeutic privilege refers to the decision of a healthcare practitioner to withhold information from a patient when there is a justified belief that disclosure may cause serious mental or physical harm to them. As of 2022, this defence is permissible in countries such as Australia, Canada, England, Netherlands and Wales as an exception to the standard consent process. Despite this, there are very limited cases in which therapeutic privilege has been upheld. This is mainly due to the complex ethical and legal ramifications in withholding information from a patient and how to define someone as being at sufficient risk to fall into this category wherein therapeutic privilege should prevail. Another challenge in enacting therapeutic privilege is the consideration of other professionals involved in patient care, such as where there is a multidisciplinary care team. However, in withholding information, there is also a denial of patient autonomy
Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), was a United States Supreme Court case in which the Court limited the scope of the Texas Healthcare Liability Act (THCLA). The effective result of this decision was that the THCLA, which held Case Management and Utilization Review decisions by Managed Care entities like CIGNA and Aetna to a legal duty of care according to the laws of The State of Texas could not be enforced in the case of Health Benefit plans provided through private employers, because the Texas statute allowed compensatory or punitive damages to redress losses or deter future transgressions, which were not available under ERISA § 1132. The ruling still allows the State of Texas to enforce the THCLA in the case of Government-sponsored (Medicare, Medicaid, Federal, State, Municipal Employee, etc., Church-sponsored, or Individual Health Plan Policies, which are saved from preemption by ERISA. The history that allows these Private and Self-Pay Insurance to be saved dates to the "Interstate Commerce" power that was given the federal Government by the Supreme Court. ERISA, enacted in 1974, relied on the "Interstate Commerce" rule to allow federal jurisdiction over private employers, based on the need of private employers to follow a single set of paperwork and rules for pensions and other employee benefit plans where employers had employees in multiple states. Except for private employer plans, insurance can be regulated by the individual states, and Managed Care entities making medical decisions can be held accountable for those decisions if negligence is involved, as allowed by the Texas Healthcare Liability Act.
Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 is an important House of Lords case in English tort law, specifically medical negligence, concerning the duty of a surgeon to inform a patient of the risks before undergoing an operation.
F v R, is a tort law case. It is a seminal case on what information medical professionals have a duty to inform patients of at common law.
Albrighton v RPA Hospital, is an Australian tort law case concerning the application of the Bolam test for professional negligence.
Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation.
Wrongful birth is a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities. Thus, the plaintiffs claim, the defendant prevented them from making a truly informed decision as to whether or not to have the child. Wrongful birth is a type of medical malpractice tort. It is distinguished from wrongful life, in which the child sues the doctor.
Landeros v. Flood was a 1976 court case in the state of California involving child abuse and alleged medical malpractice.
Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury or death to a patient. The negligence might arise from errors in diagnosis, treatment, aftercare or health management.
Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. The case changed the Bolam test to a greater test in medical negligence by introducing the general duty to attempt the disclosure of risks.
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