The strengths and weaknesses of the law of negligence

Answer

Analyse the strengths and weaknesses of the law of negligence, and discuss possible modifications that might be made to it

The modern health care system of the twenty first century is delivered and operates in an environment characterized by high complexities and increased pressure to deliver excellent and safe care, especially to the more vulnerable group of patients (Goldberg, 2013). Additionally, like any other industry, the healthcare industry is rife with risks, and relies more on the services of various healthcare professionals than machines in making judgements and executing decisions on matters concerning patients and their lives (Goldberg, 2013). Given these circumstances, and where humans make decisions, anything could go wrong, and the outcome of the actions, judgements, and decisions that professionals in the healthcare fraternity do make could unintentionally cause dire harm to a patient (Goldberg, 2013). While in real life situation we cannot expect healthcare professionals to have solutions that fixes all our health related problems regardless of their level of professionalism, skills, and experience, it is expected, both from a legal, professional and ethical dimensions that doctors and nurses, display a certain standards of proficiency, professionalism, and competency in the discharge of their duties (Avery, 2013). When this minimum standard of care is lacking or is not met, the healthcare worker may be liable for a medical malpractice or usually medical negligence, especially if this results to injury to the patient (Avery, 2013). Generally, medical malpractices that are injurious to a patients assume that the healthcare practitioner was negligent in the discharge of duties or treatment of a patient (Avery, 2013). According to Kessler (2011), medical negligence refers to a situation whereby a health professional such as a doctor or nurse, or even the hospital, through acts of omissions or commissions provides interventions that are substandard and thereby causing injury or even death to a patient. Examples could include misdiagnosis, errors during operation or treatment or any other intervention (Towse, & Danzon, 1999). Minor negligence cases are generally considered under the tort law while more severe or gross negligent actions health practitioners may be considered as criminal (Bryden & Storey, 2011) According to the department of health estimates, while about 10% of patients admitted in hospitals report adverse events occurring to them, only just about 2% of the cases of negligence handled by the National Health Service (NHS) results into court action (Bryden & Storey, 2011). NHS tries as much as possible to ensure that patients do not experience adverse events from the hands of medical professionals. This paper aims to discuss the law of negligence and shed more light on the strengths and weaknesses of the law. The paper also highlights possible modifications that could be made to the law of negligence in relation to the healthcare profession to make it more robust.

Elements of the Law of Negligence

In circumstances where patients or their families believe that the hospital or professionals in the hospital are responsible for the harm that occurred to their patient, a civil suit by the patient or their family members would ensue (Kong-lung, 2003). The intention of the claimant is usually to seek for damages usually through monetary compensations should the case of medical malpractice actually go through (Towse & Danzon, 1999). There are also a number of cases that have helped shape some concepts in negligence in the healthcare sector such as duty of care concept (Bryden & Storey, 2011).  In medical malpractices cases, several elements should be present and the case must meet certain standards with the claimant or plaintiff proving them beyond any reasonable doubts (Bryden & Storey, 2011). For a successful negligence case, the claimant or the plaintiff should be able to establish the following:

Existence of legal duty of care

The patient must prove beyond reasonable doubt that a duty of care was owed to him by the medical professional or the hospital. It is a basic necessity and requirement for the plaintiff in medical negligence claim to prove that indeed a legal duty of care was owed to him by the medical professional or the defendant (Bryden & Storey, 2011). This requirement is usually pretty easy for the plaintiff to establish because is just to show that a relationship existed between the health professional and the injured patient (Bryden & Storey, 2011). Legal duty is the degree of care an ordinary competent professional would provide to a patient given the similar circumstances (Walston-Dunham, 2005). This principle of ‘duty of care’ in the healthcare fraternity was formulated from the Donoghue vs Stevenson case in 1932 in which the presiding judge, Lord Atkin, stated that a duty to take reasonable care exists so as not to cause any foreseeable harm to a ‘neighbour’, who was contemplated as anyone reasonably at the risk of harm by can act (Bryden & Storey, 2011). This concept extends to the health sector where once a patient has been admitted in a hospital, the hospital, doctors, or nurses in charge of the patient owe him or her a duty of care out of a special relationship existing between a patient and a healthcare professional (Stephen,  Melville & Krause, 2012).

Breach of duty of Care

In the law of negligence, the plaintiff would also need to prove that medical standards of care expected of the health professional that is applicable across the health profession was actually breached or violated by the defendant (Moffett & Moore, 2011). The test here is to establish how a reasonable health professional would have acted in a similar situation (Moffett & Moore, 2011). By proving that the health professional deviated from the standard of care, of fell short of the appropriate standards required, then it would be assume that the doctor or nurse breached his or her duty of care owed to the patient (Moffett & Moore, 2011). Negligence such as where a surgeon forget surgical tools inside a patient could be easy to prove, while in others, the complexity of the case may necessitate the skill of a medical expert witness to prove if indeed a duty of care owed to the patient was violated (Moffett & Moore, 2011). The case of Bolam v Friern Hospital Trust was the base for the establishment the concept of standard comparable professional practice (Stone, 2011). This case was the basis for the formulation of the Bolam standard, which requires that in negligence cases, a healthcare professional should have acted contrary to what a body of responsible health professionals deem inappropriate of any reasonable health professional in similar situation (Stone, C., 2011). If health professionals act in accordance the profession’s practices or as his or her peers, then the negligence test may fail (Stone, C., 2011). Critics of this standard requirements have often criticized this concepts as susceptible to bias in favour of the body of health professionals association (Stone, C., 2011).

Connection between Injury Suffered and the Negligent Act

For a valid claim, the plaintiff would need to not only prove that a duty of care existed, but go further to prove that the injuries that the patient sustained actually arose from the defendant’s negligence or deviation from the standard care practices, and that were it not for such violations of standard of care or negligence, the injury would not have befell the patient (Svider, Pashkova,  Husain, Mauro, Eloy, Baredes & Eloy,2013). Adverse outcome does not necessarily imply a medical malpractice and neither is injury without negligence (Svider et al, 2013).

Existence of Injury or Damages

The law also requires, in malpractice law suits, the plaintiff to prove that not just injuries occurred to the patients, but also that significant damages were incurred as a consequence of the negligent act (Stephen, Melville, & Krause, 2012). The plaintiff would need to show that a kind of harm either financial, physical, emotional, or psychological did occur due to injuries suffered from the professional’s negligence (Stephen et al, 2012).

The Strengths and Weaknesses of the Law of Negligence

The torts law which is the main law governing negligence suits in the UK are seen as important in increasing the safety of patients at the hands of health care providers and instil a general caution among health care practitioners to exercise basic precaution rules to avoid injuries to patients (Brazier & Cave, 2011). Litigation is the major means through which most disputes in the health sector are solved including those concerning patients and healthcare providers (Farrell, 2009). Oftentimes, acrimony and confrontations characterize legal proceedings for claims in medical negligence, as well as involving huge costs for pursing a negligent claim on the part of the plaintiff or claimant, as well as huge financial implications on the part of NHS which is responsible for meeting compensations claims and legal costs should its staff be found guilty of clinical negligence as per the provisions of vicarious liability (Goldberg, 2013). In the UK, the NHS Trusts and Health Authorities is the body that is vicariously liable for the clinical negligence of its employees, who are largely doctors and nurses (Pattinson, 2011). The tort law governing clinical negligence is thus essential since it provides guidelines on medical negligence claims. While a robust legal framework is that which provides optimal means of resolving such negligent claims in an efficient manner, the clinical negligence law in the UK is seen to possess both strengths which need reinforcements, and weaknesses which requires modifications of the law to make it more efficient (Farrell, 2009).

Strengths of the Negligence Law

It is unimaginable to have a risk free health care system, and so the law of negligence is an essential piece of law since it recognizes the plea of patients and their families who suffer injures and subsequently suffer financial, psychological, or even physical harm (Farrell, 2009). The medical negligence law is invaluable because of the fact that it provides the means through which patients that suffer injuries out of the negligent acts of health care professionals receive a kind of redress for damages inflicted upon them (Donaldson, 2003). The strength of the law therefore lies on not just its ability to ensure that patients negligently injured on the hands of healthcare professionals are compensated for damages incurred, but also provides a means through which negligent practices are investigated, publicised, and hence creating awareness among the public of the consequences of medical errors, and thereby reducing and even preventing possible risks that may befall a patient (Donaldson, 2003). This law therefore increase patent safety as health professionals endeavour to meet safety standards to avoid litigation. The law of negligent strength is also seen in its ability to identifying the harms that patients are facing, anticipating them, and this would ensure that necessary measures are taken by relevant authorities to avert such harms, thereby diluting the severity of injuries inflicted upon patients, making the healthcare systems generally safer (Donaldson, 2003). While the Bolam test has received its fair share of criticism, the test, which indicates that a doctor or healthcare professional cannot be presumed guilty of negligence if he acted in strict adherence to what is expected by the body of other health professionals, gives strengths to the law to avoid opening up what would be said to be a Pandora’s can of worms, where every patient would rush to the court room to make clinical negligence claims (Pattinson, 2011). Another strength of the law of clinical negligence is its recognition of the principle of duty of care. Formulated from the Donoghue v Stevenson case, the concept of duty of care establishes existence of responsibility among healthcare professionals to take reasonable care to their patients so as to avert occurrence of injuries (Bryden & Storey, 2011). This is in line with the ethical obligations of healthcare professionals and ethical principle of non-maleficence and beneficence (Kong-lung, 2003). This requires that doctors and any other healthcare professional avoid harming their patients and relieve them of any pains and suffering through exercising duty of care (Kong-lung, H.A.U., 2003). The concept of duty of care as exists in the clinical negligent case gives patients’ strength by favouring them in case of adverse outcomes due to negligence since it is very simple to prove a doctor patient relationship hence duty of care (Kong-lung, 2003). Yet another strength of the clinical negligence law is the application of the principle of res ipsa loquitur which refers to an action that speaks for itself (Bryden & Storey, 2011). This applies in the requirement for a plaintiff or injured patient to prove that a harm was directly caused by the patience (Bryden & Storey, 2011). Where a patient may not have a reasonable explanation, this principle can be applied and hence promote execution of justice and fairness, which backs the ethical requirement in the health profession of promoting patients’ rights and acting justly towards patients by say fairly compensating then in case an injury occurred to then due to clinical negligence (Bryden & Storey, 2011).

Weakness of the Clinical Negligence Law

While the law of torts which governs medical practice helps in promoting the rights of patients through encouraging just and fair ethical and professional practices by providing a means through which they can be compensated after suffering damages following negligent acts, the law still has weaknesses that makes it less effective in achieving the very objective why the law exists (Stone, 2011).

To begin with, the fists issue of concern that’s is seen as a weakness in clinical negligence law is the concerns with spiralling costs involved in the whole litigation process (Goldberg, 2013). The costs of pursuing medical negligence claims have been high, still high, and this is a weakness that has seen the medical negligence law to be criticises as conspicuously a failure, and a detriment to justice and needs of litigants (Goldberg, 2013). This impacts badly especially on injured patients who may not have the financial muscle to follow up the medical negligence litigation (Goldberg, 2013.). Thus the prohibitive nature of clinical negligence litigations raises the question of justice and fairness to patients, since often times they have to counter the giant NHS litigation authority (Goldberg, 2013). Lord Woolf highlighted the serious of this weakness in medical negligence claims pointing out that the costs and damages in these cases are by far disproportional, especially for those cases considered low value (Goldberg, 2013).

Again several hurdles exists in the pursuit to medical negligence claims, indicating a lack of inefficiency on the law of medical negligence and a weakness in efficiently providing redress to the injured parties (Goldberg, 2013). For example, medical negligence claims drag a lot, time wise, and litigants would need real sacrifice in terms of time (Donaldson, 2003). Making a successful claim could face massive delays and take up to more than six years hence delaying justice for the claimant (Donaldson, 2003). Another hurdles which reflects a weakness on medical negligence law is the difficulty in pursuing a claim due to several burdens of proof that the claimant would need to meet, yet sometimes the NHS has been known for protecting itself as much as possible by either concealing or revealing scanty information on negligence practices committed by their employees (Donaldson, 2003).   The legal and ethical obligations of the healthcare department includes ensuring that the rights of the patients are not violated and this can be achieved by being just and revealing all information on negligence practices that may have been committed by the NHS employees for the successful pursuit of justice for the injured patients (Donaldson,  2003).  Yet another hurdles reflective of the weakness of the law is the difficulty in making compensations to injured patients (Stephen et al, 2013). The difficulty in indemnifying medical negligent claims, and the delays are a pointer to a weal legal system which may not be effective in proving timely redress to those affected by negligent acts of healthcare providers.

Weakness also exists in the proof requirements and procedures in medical negligent claims, and the law put more responsibility on the claimant, yet where NHS is involved, conflict of interest may exists where the body may not adequately provide materials incriminating their employees. For example, one weakness in evidence is the principle of Res Ipsa which makes it challenging to prove that a health professional is guilty of wrongdoing (Stephen et al, 2013).  This is because injured patents may not have the resources to hire an expert witness and to provide evidence against the defendant doctor or nurse for example (Stephen et al, 2013).  What makes this particularly tricky is that defendants are the medical experts and they are the ones involved in writing medical which may be subject to bias, and further still, the management of health institutions may frame a report in favour of the defendant where the management feels the need to protect the defendant (Svider et al, 2013).  The many thresholds of proof expected by law of a plaintiff in medical negligence claims poses what is called an evidentiary hurdle, which can be interpreted as a spanner on the wheels of justice and reparation for the plaintiff patient and a weakness in law that needs addressing and modification (Svider et al, 2013). 

Possible Modifications to the Law of Medical Negligence

The current rules governing medical negligence proceedings require some modifications to seal the loopholes resulting into weaknesses and inefficiency in dispensing justice on time (Farrell, 2009).  The government and indeed the NHS including other relevant bodies need to consider a number of modifications  aimed at making achieving the overall goal of making compensations easier and less costly, reducing the occurrence of risks, and increasing fairness in justice disseminations through elimination of certain hurdles  (Farrell,  2009). One such necessary modification to improve the medical negligence law involves dismissing medical negligence claims on the grounds of the Bolam test whereby if a body of other responsible health professionals thought the defendant acted reasonably in the given circumstances, then the professional would be innocent (Stone,  2011). This law was modified by the 1997 case of Bolitho-v-City & Hackney Health Authority, and therefore an opinion of a body of professionals still require to fulfils reasonableness and logical analysis threshold (Bryden & Storey, 2011). It has been argued that the Bolam test largely favoured healthcare professionals at the expense of the public justice hence the Bolitho modifications is seen to bring in fairness in the concept of duty of care (Stone,  2011). The compensations schemes and systems also need modification for better medical negligent laws (Donaldson, 2003). The reliance on NHS Litigation Authority by England to handle medical negligence compensation claims also needs to be modified and the no fault based scheme as operated in Scotland would determine the degree to which medical practitioners are at fault, and what degree of compensation is warranted (Stephen et al, 2012). This will reduce the disproportionate nature of legal costs and compensation costs as is the case (Stephen et al, 2012). Other modifications that would help the temptation by the NHS to disclose negligence practice information on behalf of their employees is introducing a law similar to Scotland’s statutory duty of candour (Kessler, 2011). Such a modification would ensure that hospitals and their management will have a legal obligation to reveal al details of negligent practices by their employees instead of covering them up (Stephen et al, 2012).

In conclusion, the medical negligence law play an important role in reducing risks and injuries inflicted upon patients by negligent acts of health care professionals, and provide a way for reparations in the event that patients suffer the adverse events. In its current shape, the medical negligence litigation process is highly complex with numerous hurdles and constraints for the public to overcome hence limiting pursuing of justice. Through appropriate modifications, the law can however be made more effective in promoting delivery of quality and safe health care services to patients, and easily compensate them for damages incurred in the hands of a negligent health professional.