48 Medicolegal Aspects of ENT

Medical negligence is a civil tort that may occur when a patient suffers harm due to the action, or inaction, of a doctor entrusted with his or her care. For a claim in negligence to succeed, the claimant must prove three things:

1. That the doctor owed them a duty of care.

2. That the doctor’s practice fell below an acceptable standard of care.

3. That the patient suffered harm as a direct result of that substandard care.

The claim process must commence within the required statutory time frame.

If negligence is proven, it results in liability for compensation to the injured patient for the harm suffered as a result of the negligence. This is in contrast to the tort of battery where the defendant is liable for all the harm and consequences of the tort, whether or not these could have been predicted. The size of any quantum awarded is usually directly related to the severity of the harm suffered and is often relatively modest. The majority of extremely large awards are related to loss of earnings, or the requirement for ongoing and future care provision.

Let us consider each of these points in turn.

48.1 Duty of Care

It is usually easy to prove a duty of care. If a patient consults with a doctor and the doctor offers advice or treatment, he or she has undertaken a duty of care towards that patient. This means he or she should make the care of that patient ‘his or her first concern’.

48.2 Standard of Care

For many years, the courts used the Bolam principle alone to judge the standard of medical care delivered. This principle states:

‘he 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’.

However, in 1998, the common interpretation of Bolam was modified by the case of Bolitho, which concerned the management of a child suffering from respiratory failure. In this ruling, the judges agreed that it was not enough merely to demonstrate that the doctor’s management was in line with that, ‘accepted as proper’ by other medical experts if, ‘the professional opinion is not capable of withstanding logical analysis’.

Until Bolitho, it was customary for the courts to accept the opinion of doctors without question. However, with this ruling the courts took back control and made it clear that if the judge felt that medical opinion did not withstand scrutiny then he was, ‘entitled to hold that the body of opinion is not reasonable or responsible’.

48.3 Harm

In order to prove negligence, the claimant must prove that on the balance of probability (i.e., with a likelihood of > 50%) the contested harm occurred as a direct result of the doctor’s action or inaction, but for his actions, the harm would have been avoided. This is often the hardest point of the three to prove and the reason that many claims fail. For example, a patient bringing a claim against a surgeon who did not diagnose cancer promptly would have to prove that this delay directly harmed his or her clinical outcome.

48.4 Negligence in the Context of Invalid Consent

A patient may successfully sue his or her doctor in negligence if he or she proves that the information he or she was given, and on which he or she based his or her consent to treatment, was deficient in some way. If he or she can demonstrate this and convince the court the following.

• He or she would not have agreed to treatment if he or she had been in possession of the correct information.

• The harm he or she suffered was as a direct result of this treatment.

Then, the claim may be successful. Since the Montgomery judgement, the standards required of the consent process have become much more demanding (see Chapter 14, Consent and Capacity).

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