Medical Negligence

Francesca M Brett MD., FRCPath., FFPath., MSc (FM)

What is negligence?What is negligence?

Negligence is a tort or wrongful act or omission, arising independently of contract from a breach of duty imposed

by the law. If it can be proved then one can claim for damages

Must prove:

• That the doctor has a legal duty of care• That he/she failed to conform to a

standard duty of care• That loss/damage has occurred• That a sufficiently close causal

connection exists between the doctors conduct and the patients injury

The standard a professional is obliged to reach is that of

“ general and approved practice”

Dunne (an infant) v National Maternity HospitalDunne (an infant) v National Maternity Hospital

Errors or delay in diagnosis are increasingly common in malpractice claims

Fox v Hinderliter 2006Fox v Hinderliter 2006 – a Neurologist was sued for failing to:

a) treat rising PSAb) to diagnose a patient with Prostate cancer

• Medical treatment errors in US cost as much as $29 billion p/a

• Consequences of mistakes often severe leading to death or disability rather than inconvenience

• Average ICU patient 2 errors per day• 1 in 5 of these errors potentially serious

(Quality interagency coordinated task force 2000. Quality interagency coordinated task force 2000. Doing what counts for patient safety: Federal actions to Doing what counts for patient safety: Federal actions to

reduce medical errors and their impact)reduce medical errors and their impact)

No more than 1 in 7 adverse events in medicine result in a negligence claim.

Factors that predict whether a patient will resort to litigation include:

• Prior poor relationship with clinician• Feeling that patient is not informed

(Oyebode F. Clinical errors and medical negligence. Ad in Psychiatric Treatment

2006;12:221-7)

Collins v Mid-Western Health Board 1999

Background 1

• Plaintiff’s husband (the deceased) took ill suddenly at work on Feb 20th 1991

• When going home – saw Dr O Connor’s surgery open (not usual doctor - usual Doctor O Brien)

• When got home plaintiff rang Dr O Connor and said ‘Jim has a very bad headache’

• Dr O Connor waited and formed the opinion that the plaintiff’s husband had an URTI

Background 2:

• Feb 23 – deceased no better and in bed for 3 days and wife rang the doctor. His response ‘people who are not used to being sick think they are worse than they are when they do get sick’

• Feb 25th – wife rang Dr O C – said “Jim is very bad”. Doctor came and examined and said prob sinus inf and possible raised cholesterol. The latter came back normal on March 5th

• March 17th rang Dr O C- locum on duty and decided to go to family doctor Dr O Brien

• Dr O B felt the patient needed CT scan

• Hospital gave appt for Apr 2nd so Dr O B gave him a letter for admission

Background 3:

• March 20th seen in OPD by SHO Dr Nur who felt all was well and sent him home

• Plaintiff contacted Dr O B who immediately contacted Dr Nur. Having failed to get assurance that pt would be admitted decided that March 22 he would do everything to get him admitted

• On March 2nd at 2am pt had a serious collapse.

Background 4:

Report describes his condition

“ his condition was serious. An LP was carried out at 4am and CT at 10am. He was diagnosed to have suffered a SAH. Following this scan and the diagnosis of haemorrhage he was transferred to Cork…..Further CT … similar pattern to the first… At this stage deceased was unconscious …. Ultimately he died on 27th March 1991”

Based on these events the plaintiff took an action of negligence:

The claim was divided into three partsThe claim was divided into three parts

• PART 1PART 1 - Dr O Connor – i) negligent on Feb 20

ii) If not negligent then ought subsequently to have referred the deceased to a

specialist

• Part 2 - Against Hospital Board because of the failure of Dr Nur to admit

the patient on March 20th

• Part 3 - claim against hospital for negligence in manner in which deceased

treated on March 22nd

Ratio Ratio decidendi decidendi -- legal phrase referring to the legal, moral, political, and social principles used by a court to

compose the rationale of a particular judgment

Obiter Dictum -- Latin for a statement "said by the way", is a remark or observation made by a Judge that,

although included in the body of the court's opinion, does not form a necessary part of the court's decision.

Collins v Mid-Western Health Board 1999 (Summary and interpretation)

• Deceased suffered a SAH on Feb 20 1991 and again on March 22nd. Case supposes that Dr O Connor should have diagnosed that the deceased was suffering from a serious condition which required him to be referred to a specialist for further diagnosis and if necessary treatment.

• Plaintiff (Mrs Collins) issued proceedings on her behalf and on behalf of her 3 children against 2 defendants for negligence.

• The learned trial judge found that Dr O Connor diagnosed a viral flu and was not told of the sudden onset of headache and that having regard for what he was told and the apparent condition of the deceased he had asked all the right questions.

• DID THE TRIAL JUDGE TAKE TOO NARROW A VIEW???• In not taking into consideration the reason for the visit• What was said by the plaintiff in arranging the said visit

The claim divided into three parts• PART 1PART 1 Dr O Connor – i) negligent on Feb 20• ii) If not negligent then ought subsequently to have referred the deceased to a

specialist

SUPREME COURT DECISION PART 1Dr O’Connor was negligent on Feb 20th and equally on Feb 23 and 25th.Ratio Decidendi

• Failure to heed what was said by the plaintiff in each of her phone calls and to follow it up was negligence

c.f Dale v Munthali, 73 Dominion Law Reports, 3rd series p.588 and Langley v Campbell The Times Nov 5th 1975

Obiter Dictum• Simple questions should be asked if pain is the presenting symptom and a doctor cannot rely

on what he has been told when it is reasonable to ask further questions. Also if inconsistencies exist between what the doctor was told and what he finds, this is grounds for further enquiry

• Part 2 Against Hospital Board because of the failure of Dr Nur to admit the patient on March 20th

• Supreme Court Decision.

Hospital board was found to be negligent because of failure of Dr Nur to admit deceased on March 20th.

• Ratio Decidendi He failed to admit the deceased or seek a senior opinion and he ignored the letter from Dr O Brien.

• Obiter DictumAbsolute authority conferred on Junior Doctors to refuse admission is inadvisable

• Part 3 claim against hospital for negligence in manner in which deceased treated on March 22nd

• Supreme Court Decision.• PART 3

• Not negligentNot negligent

• Ratio Decidendi • The presence of contraindications to the procedure was

denied by witnesses on behalf of the defendant

Conclusions: Conclusions: Collins v Mid-Western Health BoardCollins v Mid-Western Health Board

1. GP’s must elucidate all facts

2. A GP must take heed of third party information

3. If making a referral – be clear about the urgency of the situation

4. A GP must keep adequate and proper records

5. A hospital cannot give absolute authority to a junior doctor

6. A system that allows a junior doctor to dismiss the views of a senior GP is inherently defective

7. Hospitals have to implement schemes to indicate when a second opinion is required

8. Court of law reserves the right to find a medical practice unsafe – even if generally followed

9. Decision in Collins based on its own facts MLJI 2000

CASE PRESENTATION

TO BE DISCUSSED ON THE DAY

• Headache is one of the commonest and sometimes the most difficult

problem in clinical medicine

• Broadly classified into

primaryprimary - (h/x and exam) do not suggest a secondary cause and investigations such as CT exclude same

Secondary – Attributable to another cause e.g infection, vascular etc.

Clinical neuroimaging is both expensive and low yield unless specific features

Blue flag featuresBlue flag features – not requiring urgent attention

Red flag featuresRed flag features – require urgent treatment

RED FLAG HEADACHES

• New onset – specific setting e.g. cancer• New onset – persistent• Focal signs or symptoms • Progressive• Sudden onset• Rash• Persistent unilateral temple headache• Raised ESR• Papillodema• Pregnancy or postpartum• Triggered by cough• Changes in posture• Visual disturbances• Unusual features

“ A true case for negligence can only be establised in diagnosis or treatment if it is

proven that the practictioner is guilty of such failure as no other practitioner of

equal status”

Dunne (an infant) v National Maternity Dunne (an infant) v National Maternity HospitalHospital