ABSTRACT
This paper discusses breach of duty as it pertains the healthcare profession. The relationship that exists between a medical practitioner and a patient is briefly discussed with emphasis on some of the circumstances that bring about such relationships. The legal tests that are applied to test breach of duty which a medical practitioner owes a patient are also briefly but coherently discussed. It’s important to note that the three tests set the necessary conditions that must be met for a case of negligence to be proved in a court of law. The paper then summarizes by considering two case studies that are used to illustrate the legal process of determining a case of professional medical breach of duty. The two cases briefly elaborate the ruling of the courts per case and expound on the arguments and justifications behind such arguments.
Breach of duty is used to test negligence on the part of a medical practitioner. It results when in the process of executing their duties, medical practitioners, negligently commit or omit some actions ultimately harm a patient. Breach of duty is used in a court of law as the third step when testing professional medical negligence. For a breach of duty to occur, a medical practitioner must owe a duty of care to the affected person (Annas, 2006). The duty of care is established by considering the medical practitioner-patient relationship that is expected between either a nurse, doctor, etc. and patients. For example in a case of a medical doctor, the duty of care is established when a medical doctor fails to meet certain standards. The most common standard applied is that of a reasonable man (man on the Clapham omnibus) and testing how they would react under the same circumstance (Annas, 2006). In the case medical professionals, the standard maintained is that of the professional in question. For trainee, it is important to note that they are not considered to be full practitioners hence the level of “standards” expected of them is not the same as that expected from experienced medical practitioners.
All medical practitioners have a duty of care to the patients they come across in the medical facility. Therefore, a breach of duty occurs when a medical practitioner fails to show this duty of care to the patients whom they owe the duty. In a court of law the legal test required to prove negligence on the part of a medical practitioner involve establishing whether a duty of care actually exists between a medical practitioner and a patient (Lillis et al. 2010). This duty of care does not arise out of the mere whims of a judge handling the case. It must be part and parcel of the profession’s standard practice so that the failure of any medical practitioner to show this duty of care to a patient would pass the first test which is to establish the existence whether a professional acted negligently.
The breach of duty must hence be shown to have resulted in some harm as a result of the medical practitioner acting negligently (Lillis et al. 2010). The three steps legal tests for a case to proceed to trial for breach of duty hence can be summarized into three steps: 1). That the patient(s) is owed a duty of care, 2) A breach of the duty of care is established and 3). That as a result of that breach of care, some harm that is recognizable before the law occurred to the patient.
Balom and Friern Hospital Trust
Balom was a patient who was submitted to Friern Hospital trust, however, in the process of his treatment, the patient sustained a fracture in the process; while undergoing ECT treatment. Bolam then sued the Friern Hospital for what he termed as negligence on the part of the medical practitioner who was handling the treatment (Young, 2009). Bolam argued that he wasn’t given any muscle relaxation which was necessary for the procedure to be undertaken and that there were also no efforts to restrain or wax him off the risk of a possible.
Held
This case was held that negligence could not be established as it was shown through evidence that as at the time of the treatment, there was no universal procedure that required a medical practitioner to administer drugs to relax a patient’s muscles (Young, 2009). In this case, therefore, there was no breach of duty from the medical practitioner as there was not standard expected of a “normal medical practitioner” that the person who carried out the treatment had done. The standards that are supposed to be upheld by such professions are defined by professional bodies; hence, lack of such a standard cannot cause the courts to consider the first element of the legal test which is to establish the failure of a professional to meet certain professional standards. The legal test could hence not even go beyond past the first stage, and hence, the breach of duty lawsuit was terminated, and the defendant won the case.
Crawford v Board of Governors of Charing Cross Hospital
In this case, a patient who was admitted to Charing Cross Hospital suffered some brachial plexus injuries after lying in the same posture for quite a long period. However, six months prior to this incident, some article elaborating this complication had been published but unfortunately, the anesthetists who had been responsible for this case did not see the article (Fearnley & Bodenham, 2012).
Held.
The courts held that the anesthetists didn’t any duty of care they had towards the patient. The anesthetist was found to be a trainee and hence was considered by the courts not to be the normal “reasonable man.” This does not have anything to do with the mental or physical makeup. The “reasonable man” in this case connotes being of adequate professional practice so to know certain things about the patient you’re handling (Fearnley & Bodenham, 2012). This test “reasonableness” however mean that the professional body ought to have defined what age of professional training is to be so that the expectations on them is that they uphold standards that are considered utmost high. However, it is expected that trainees should always be under a supervisor who should assign them to cases they can handle. In such instances, negligence would arise even on the supervisor since they also have a duty of care to ensure that they assign trainees to cases which they can handle (Fearnley & Bodenham, 2012). The duty of care that the supervisor has to the patient does stop when he assigns a trainee to the patient. All the responsibilities that ensue are supposed to be directly associated with the supervisor.
References
Fearnley, R. A., Bell, M. D. D., & Bodenham, A. R. (2012). Status of national guidelines in dictating individual clinical practice and defining negligence. British journal of anaesthesia, 108(4), 557-561.
Young, A. (2009). Review: the legal duty of care for nurses and other health professionals. Journal of Clinical Nursing, 18(22), 3071-3078.
Annas, G. J. (2006). The patient's right to safety-improving the quality of care through litigation against hospitals. New England Journal of Medicine, 354(19), 2063.
Lillis, C., LeMone, P., LeBon, M., & Lynn, P. (2010). Study guide for fundamentals of nursing: The art and science of nursing care. Lippincott Williams & Wilkins.
