Law of Tort: Critical Review

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Table of Contents

Introduction
Law of tort
Analysis and advice to both parties
Conclusion
Bibliography

Introduction

Clinical negligence is a situation whereby a patient takes his or her doctor to court, following an incident of negligence on the part of the doctor. The patient normally forwards the complaint to the local civil court in an attempt to receive compensation for the damage caused by the responsible individual or medical institution. There are a number of conditions that must be met before the complainant can get compensation for the harm suffered after the act of negligence. The doctors are, however, not always responsible for the suffering or loss incurred by the patients since the patients themselves may have done something that directly had an effect on the results.

Law of tort

In order to prove the doctor or the medical practitioner guilty of negligence, the patient-who is raising the complaint-must prove that the medical practitioner failed to offer care. This negligence may be in the part of management and the patient must have suffered harm due to the act of negligence. Two conditions must be met before the complainant can get compensation. The first one is that a liability should indicate that the medical practitioner was reported to have acted in a way that was not the norm. The act should be different from what any other professional, from the same field, would have done.

The second is the causation that the suffering endured by the patient would have otherwise been avoided. In simple terms, this is to mean that the probability of the action to have caused the harm is more than fifty percent. The complainant’s loss is then assessed and the patient compensated with the exact amount. The loss may be in the form of loss of earnings that one would have received currently or in the future. Another form of loss may be in the reduction of the individual’s quality of life or a case of mental disturbance. In the present scenario, the loss incurred by the patient is that of a reduced quality of life since she can no longer bare children of her own. She lost her fertility after a hysterectomy due to a possible case of cervical cancer.

Several methods have been devised to determine the liability of the medical practitioner to the act of negligence. One of the tests includes the Bolam test. This test was used to test the liability of McNair in front of a jury.

The medical practitioner was not found guilty of negligence since his actions were justified. He acted according to the proper and laid down procedures that are expected of any ethical medical practitioner. What the doctor did was no different from what a fellow responsible and skilled medical practitioner would have done. The fact that the patient took a different stand did not mean that the doctor could be held accountable to his actions. What the patient thinks at this point is not of concern but what the doctor actually did is what counts.

The Bolam test is therefore a test that is used to judge the actions of a medical practitioner against the actions of one’s peers. What is considered is whether a fellow doctor would have done the same action. If the answer is yes, then the action is considered right. Other things such as what the most popular doctor thinks about the situation does not count. Any information given by a well-informed hospital consultant on the matter may not count either. The only persons who may offer their views and are heard are those practitioners who were dealing with the same case when the incident occurred. Such practitioners may be in a better position to determine whether the act was justified or not. They may know whether it was a mere act of negligence. The thing is, the views of a professor of medical practice may not be of help at that stage but those from an ordinary, but responsible, medical practitioner may be considered.

Another test is the Bolitho test. This is whereby the House of Lords makes the decision after realizing that the body of doctors, acting as the defence, do not seem to be a group of responsible doctors. If the body calls in support of a defence case but not be in a position to endure logical analysis, then the court may be forced to conclude that the argument brought by the body was not responsible and logical.

In 2002, Gregg was taken to the House of Lords to determine whether he (doctor) was responsible for the suffering and injury endured by his patient. This case is similar to the present one in that, the doctor failed to diagnose a case of cancer in good time. In this particular case, the cancer patient had a twenty-five percent chance of survival. The doctor won the case since the action was not considered that of negligence since the patient had a very low chance of survival anyway. The patient would not have been in a different position in terms of health even if the doctor had detected the cancer cells early enough.

The only situation where such an act is considered an act of negligence is whereby the patient had more than fifty percent chance of survival. This would be the case since this means that the patient had a fifty percent probability of survival and cure. In the present case scenario, the patient had a forty percent chance of preserving her fertility. This is less that fifty percent and therefore, the chances of Ms. Sun preserving her fertility were minimal since the probability is less than a half. Furthermore, the doctor had advised the patient to go for another test to verify the presence or absence of cancer in her cervix but she did not comply. The cervical cancer might have probably been diagnosed at that time and the necessary measures undertaken.

Analysis and advice to both parties

Negligence may be seen to have fallen on the side of the patient since the doctor is clearly recorded to have instructed the patient (Ms. Sun) to take another smear test in 2009 but she failed to do so. Negligence on the side of the patient may have been the cause of the delay in the detection process. The cancer cells might have been detected earlier enough and the patient provided with medication that would possibly preserved her fertility. The patient can therefore be advised to withdraw the case since the doctor is seen to have done his part and left the future test in the hands of the patient.

The doctor may not be fully responsible for the failure to diagnose the disease in 2008 since there are chances that tests may fail to detect the cancerous cells. The doctor further provided a medical evidence to certify that there is a five percent chance that a smear test may not detect cervical cancer. With this information, the patient could have clearly understood that there were chances that the results were wrong. The patient could have therefore taken the initiative to undergo another test to verify the results.

Another instance that is in the defence of the doctor is the fact that, if the cervical cancer could have been detected in the first instance, the same procedure could have been undertaken and the patient could still have lost her fertility. This would have been because of the lack of an alternative since other less invasive treatment would not have been possible. This means that it would have called for a hysterectomy to be performed and this would have causes the loss of fertility. The patient should therefore understand that she would not have been better off even if the cancer cells were detected earlier in 2008.

The patient may not be blamed wholly for her acts of negligence since the doctor also may have a case to answer. Although the patient is to blame for not going for another smear test when she was instructed to, the doctor may also be blamed for not conducting several tests while he was with the patient. The doctor had the knowhow and was informed of the fact that the tests only had 95 percent accuracy levels and he could have probably performed at least three tests to verify his results.

Civil cases normally follow a given procedure. This is what is referred to as the civil procedure rules. The doctors therefore, need to present their evidences in accordance to Part thirty-five of those rules. The element that must be understood here is that the experts dealing with the issue should only act as advisors of the court rather than stakeholders of the fees that are to be offered. They therefore, need to remain impartial and not influence the process of fee payment. These rules are characteristic to cases in England and Wales.

Any patient who has suffered harm due to an alleged act of negligence from the side of the medical practitioner must forward the case within three years from the date when he or she suffered harm. In the present case, the complainant came forward early enough but unfortunately, the evidences are in favour of the doctor. The doctor provided the necessary evidence to prove that he had done his part and actually did her a favour by performing the surgery in good time to prevent the spread of the cancer cell to other parts of her body. The doctor therefore, may have actually saved the lady’s life rather than done her injustice. Furthermore, the woman might still have lost her fertility even if the cancer would have been detected earlier.

Conclusion

The case that has been discussed was that which involved a patient who blamed her doctor for being negligent to her health status. The patient accuses the doctor for not being able to diagnose the disease in time and preserve her fertility. The doctor, on the other hand, denied any allegations and blamed the patient for not going for another smear test after she was advised to. The doctor also explained that the same procedure would have been done even if the cancer would have been detected earlier and she would have lost her fertility. The woman therefore, does not have a steady ground on which to accuse her doctor and hence the case is to be brought to rest.

Bibliography

Baker, T, The medical Malpractice Myth, University of Chicago Press, 2^nd edn, Chicago, 2005.*

Bloom, J, ‘Claims, Errors and compensation payments in Medical Malpractice Litigation’, Journal of Medicine, vol. 22, no. 1, 2006, pp. 125-132.*

Brazier, M, Medicine, Patients and the Law, 3^rd edn, Penguin Books, Harmondsworth, 2003.*

Daniel, P, & M McClellan, ‘Do doctors Practice Defensive Medicine’, Quarterly Journal of Economics, vol. 7, no. 1, 1996, pp. 353-390.*

Jones, M, Medical Negligence, 3^rd edn, Sweet & Maxwell, London, 2003.*

Kennedy, I, & A Grubb, Medical Law, 3^rd edn, Butterworths, London, 2000.*

Mason, J, & G Laurie, ‘Misfeasance in Public office: An emerging Medical Law Tort’, Medical Law Review, vol. 14, no. 3, 2003, pp. 194-195.

Reinhardt, U, ‘Changing Malpractice System’, New York Times, 1 October 2010, p. 13.*

Robertson, B, ‘Whitehouse v Jordan: Medical Negligence Retried’, Morden Law Review, vol. 4, no. 1, 1981, pp. 457-461.

Steigman, C, ‘Overcoming lawsuits: Orthopaedic surgeon who suffered a medical malpractice litigation’, Journal of Medicine, vol. 2, no. 3, 2008, pp. 54-84.*

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