LO: Explain the doctor's legal duty of care, and discuss the concepts of liability and negligence and the duty and standard of care, and the issues that arise in Good Samaritan' acts

Negligence - failure to take proper care over something
In law: breach of a duty of care resulting in harm/damage
Clinical negligence - healthcare professionals who owe a duty of care fail to meet the expected standard leading to injury
Negligence is a tort - civil wrong

Clinical negligence

• Claimant/patient must establish 4 things:
  • Owed a duty of care
  • Duty of care breached
  • Sustained an injury
  • Caused by that breach of duty
• Standard proof required is "balance of probabilities"
• More likely than not >50%

Duty of care

• Existence of duty of care can generally be taken for granted
• Relationship between healthcare professionals and patients is a well established duty situation

Bolam test

• "A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art"
• Responsible body of medical opinion
• "It can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible"

flowchart TD
	A[Potential breach by a medical practitioner] --> B{Would a competent body of fellow medical professionals have acted in the same way?}
	B --> |No|C[Breach of duty]
	B --Yes--> D{Does it see like a logical way to act?}
	D --Yes--> E[No breach]
	D --> |No|F[Likely breach]

• Claim will fail if a doctor can call evidence that shows a responsible body of doctors skilled in that particular speciality and would have done the same
• Judged by peers
• Claimant has a body of medical opinion that supports the claim is not necessarily fatal to a defence of the claim
• Experts can have differing views

Bolitho

• Caveat to Bolam
• Views of the expert must be honestly and sincerely held and stand up to logical analysis
• Courts are the final arbiters of the standard of care in clinical negligence claims
• Bolam is still good law subject to the Bolitho qualification

Standard of care

• Standard of care that has to be attained is not that of the highest skilled practitioner but that of the ordinary competent practitioner in that field
• Standards are those which were adopted at the time of the negligence, not at the time of the trial

Inexperience

• All medical staff to meet the standard of competence and experience society expects from those working in such a unit
• Inexperienced doctor should ask for expert assistance if the task is beyond their ability
• Court of Appeal decided that trainee/learner is to be judged by the same standards as their more experienced colleagues
• Inexperience is no defence

Causation

• Burden of establishing that the breach caused harm rests with the claimant
• "But for" the defendant's negligence would the harm have occurred to the claimant in any event
• Balance of probabilities

Material contribution

• Negligence contributed to the damage/injury and did not cause just an increased risk of injury/loss
• Contribution must be material - court chooses the measure of materiality
• Must be no alternative complete cause of the injury

Damages or loss

• Compensation - "damages" is awarded
• No special rules applied to damages awarded in clinical negligence cases
• Aim - put the Claimant in the same position as they would have been if there was no negligence
• Damaged awards once
• Provisional damages
• Costs - loser pays winner
• General damages: awarded for pain, suffering and loss of amenity based on judicial college guidelines and case law
• Special damages: quantifiable losses
• NHS liable is the healthcare professional negligently performs the duty of care to the patient

NHS indemnity

• 1990
• All NHS hospitals indemnified own staff against legal liability
• In any claim - trust will be the defendant, not an individual
• All NHS trusts covered under the Clinical Negligence Scheme for Trusts (CNST)

CNST

• Run by the NHS resolution
• Created a pooling arrangement to meet liabilities arising out of patient claims
• "Premiums" for individual Trusts

Good Samaritan Acts

• When a doctor, not on duty, helps in an emergency situation
• No legal obligation to treat someone who is not a patient
• No english legal duty to assist
• Must offer help if emergencies arise in clinical settings or in the community, taking account of own safety, competence and availability of other options for care