Medical Negligence

A 31 year old woman who is admitted at a local health facility goes into labour and is rushed to theatre. In theatre the doctor attempts to induce normal birth through the birth canal but fails on four attempts.The doctor decides to perform a cesarean section procedure on the woman. At this point, part of the head of the unborn child is in the birth canal and there is risk of rupturing major blood vessels. The only way such a procedure can be attempted is at a facility that has adequate blood supply and the right theatre equipment to repair ruptured blood vessels on time. The doctor, in full knowledge that the hospital does not meet these standards goes on to perform the cesarean section procedure. Indeed major blood vessels are torn and the woman dies as a result of excessive hemorrhage. The husband upon finding out this fact initiates a claim against the doctor.

The doctor in this can be said to her performed a medical malpractice, which is negligence of a medical professional that results in personal injury to a patient. For a medical malpractice claim to be actionable it must first be established that the professional owed a duty of care to the claimant, The principle of ‘duty of care’ was established by the landmark ruling by Lord Atkin in (Donoghue v Stevenson, 1932) where he held that there was a general duty to take reasonable care to avoid foreseeable injury to a ‘neighbour’. A neighbour was defined as ‘someone who may be reasonably contemplated as closely and directly affected by an act’.  As such, the doctor did owe a duty of care to the woman. The duty of care afforded should be that of a reasonably competent doctor under the same or similar circumstances.

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Secondly, it should be established that there was a breach of duty by the professional. This is established where a doctor’s practice has failed to meet an appropriate standard of care required of a reasonably competent doctor under the same or similar circumstances. In the medical world the required standard of care is mostly weighed upon the blanket practise of the profession as was established in the The Bolam Test (Bolam v Friern Hospital Management Committee,1957) where despite the claimant alleging that he had not been given muscle relaxation for the procedure, and had not been restrained or warned of the risks of fracture, negligence was not be established, because at the time it was not universal practice to administer muscle relaxation for contrasting opinions existed as to the benefits of muscle relaxation balanced against the increased risks of the relaxing drug used. However courts are expected to treat each case on its merrist and take a deviation from the Bolam Test, as was the case in (Bolitho v City and Hackney, 1997) where it was held that failure by the paediatric registrar to attend to the child during an earlier episode of croup was negligent was the child subsequently suffered hypoxic brain injury from a respiratory arrest. Thus, the standard of care though weighed upon the prevailing medical practice can also be weighed on the facts of each case, independent of the prevailing practice in order to establish if there was a breach of duty.

Finally, it should be established that the breach of such duty was the proximate cause of the  injury to the claimant. That were it not for the doctor’s action or inaction harm would not have occurred. In short, the resulting injury should be reasonably foreseeable and should not be too remote from the act that caused the breach of duty as was held in (Palsgraf v Long Island Railroad Co, 1928) where the defendant was not liable to the claimant as their actions,though negligent, were not the proximate cause of the claimants injury.

In context, the doctor in this scenario did owe a duty of care to the woman as the doctor in charge of the operation. He indeed breached his duty of care by failing to act in accordance with the standard of care required when he proceeded to perform the cesarean section procedure while in full knowledge of the risk to the woman should all go south and that the facility did not have an adequate blood supply as well as the required medical equipment. Unfortunately the worst did occur and the woman bleed to death after some of her major blood vessels were ruptured. Thus the doctors negligent decision was the cause of the events that led to the woman’s death hence a suit against the doctor for medical practice is plausible as it satisfies all the required elements.

Collins v. Thakkart, 1990

A lady patient became involved in a sexual relationship with her physician and became pregnant. When she allowed the physician to examine her to confirm the pregnancy, he repeatedly forced a metal instrument into her uterus then left her unattended. She eventually sought medical attention elsewhere where she was told that she was pregnant and that she was having a miscarriage. She was eventually hospitalized for a dilatation and curettage.It was held that the constituted a battery, allowing the patient to claim for wrongful abortion

An intentional tort requires that the victim show the defendant acted with the specific intent to perform the act that caused the injuries or damage. The most common intentional tort is battery. Battery occurs only if there is an actual physical contact and an aggrieved person may file charges seeking compensation for damages caused by the act. In the above case, the appellate judge ruled in favour of the appellant noting that the purposeful use of medical instruments in such a manner as to cause a miscarriage and concomitant pain to the patient, without the patient’s consent and despite her protests (Collins v. Thakkart,1990) suffices as battery and warrants a claim for damages under the law.

A Patient’s Right To Confidentiality

Prior to his current admission John,who is 26 years of age, had never seen the inside walls of a hospital. He always had clean bill of health per excellence. However, his recent reckless sexual escapades seem to have caught up with him and he has been diagnosed with Human Immunodeficiency Virus. Which had slowly depreciated his immune system and he caught an opportunistic infection pneumonia that was the reason for his admission. He duly informs the hospital not to disclose his HIV status to anyone until he is not psychologically prepared to do so himself. However,upon constant pressure from John’s mother the hospital disclosed his HIV status to her, as they believe that the mother has a right to know, and she passes the same information to his father and siblings who upon his discharge from hospital shun John and tell him to keep away from them lest he infects them. John is mentally distraught and blames his owes on the hospitals unlawful and premature disclosure of his status to his Mother.

Patient Confidentiality is the right owed to a patient by a doctor not to disclose information received from the patient to anyone not directly involved with the patient’s care. It also establishes the trust between the healthcare professional and the patient (Gates and Fink, 2008). As such, patient confidentiality is not absolute. They are exceptions to patient confidentiality,and they include,  when consent is given by the client, where there is a public interest, or when there is a legal obligation to disclose the information. 

In context, the hospital violated John right to confidentiality by informing his mother of his HIV status without obtaining his consent. In so doing they disrupted the normal relationship that he had with his Mother and family at large. Further, they neither had a legal obligation to do so as John their primary duty of care is to John and not his Mother nor was the matter one of public interest as there was a lack of sufficient legal proximity of other parties involved (Palmer v Tees 1999) . As such, the hospital being a healthcare provider owes a primary duty to afford John all the duties and rights it owes to its patients and to ensure that such rights and duties are well protected.

CASES

  1. Donoghue v Stevenson , AC 562 (1932)
  1. Bolam v Friern Hospital Management Committee, 1 WLR 582 (1957)
  2. Bolitho v City and Hackney, HA  4 All ER 771, HL (1997)
  3. Palsgraf v Long Island Railroad Co, 248 NY 339 (1928)
  4. Collins v. Thakkart, 552 NE2d 507 (1990)
  5. Palmer v Tees HA, EWCA 1533  (1999)

BOOK

Rose A.G & Regina M.F (2008) Oncology Nursing Secrets. DOI: 10: 8131211886

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