CLINICAL NEGLIGENCE. An illustration of the operation of negligence. BREACH OF DUTY 1. General law of negligence – the standard of care is that of the reasonable person
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An illustration of the operation of negligence
“I have to say that a judge’s preference for one body of distinguished opinion over another also professionally distinguished is not sufficient to establish negligence”
“Cause in fact” is a question of fact to establish a causal link between the incident and the injury
“Cause in law”
The extent of the defendant’s liability is determined by the boundaries set by the judges
“We can rarely absolutely prove a hypothesis although we can gather enough evidence from scientific studies to make the hypothesis so probable that we can say it is true for all practical purposes”
Science on Trial
Bolitho v City and Hackney Health Authority
Failure to attend and intubate child with respiratory difficulties
The judge is permitted to choose between two conflicting expert opinions and can reject one of those opinions if it is not “logically defensible”.
The problems to date -
“A first class service: Quality in the New NHS”
THREE MAIN FUNCTIONS:
Relenza. Viagra. Beta interferon. Gender reassignment cases.
“It is no good recommending a therapy if there is not the money available.”
Sir Michael Rawlins
NICE considers both cost effectiveness and clinical effectiveness
Can guidelines provide a solution by defining the standard of care?
“If guidelines have been produced by a respected body and have been accepted by a large part of the profession, a doctor would have to have strong reasons for not following that guidance”
Dr Graham Burt of the MDU 1993
“With the increasing use of guidelines in clinical practice, they will probably be used to an increasing extent to resolve questions of liability. Those who draft, use and monitor guidelines should be aware of these legal implications”.
* Human Rights considerations could expand the scope of liability
* Nice Guidelines will define the standard of care
* Further NHS structural changes may improve quality of care
Healthcare workers and care workers could be the casualties of the legal system: they have rights too!
Lord Donaldson in Whitehouse v Jordan.