Cost Neutral Reform: Pre-Action Protocols

Negligence is the failure to do something. Many medical cases are filed as medical malpractice suits, “medical malpractice is professional misconduct. Malpractice differs from negligence because it is performed by a license medical professional” (Flight 2). The case of Horton V. Niagara Falls Memorial Medical Center can be used as a primary example where negligence, “failure to take reasonable precautions to protect others from the risk of harm” (Flight 33), is visible.

Negligence is upholding a certain leavel of care by determining if it meets the four components nessessary for a claim; duty, breach of duty, causation, and damages. In this case duty was not handled correctly. Duty means you agree to take care of a health care patients. THe girls working at the Good Samaritan Home did not take proper care of the residents. Breach of duty is broken down into four categories; Misfeasance, nonfeasance, and malfeasance. In this case the breach of duty refers to nonfeasance. There was a failure to act, by no other employees bringing the ause to attention. Causation requires an injury to be due to the healthcare professionals negligence. In the case of abuse in the Good Samaritan case there was no other way the injuries could have happened. The damages refers to the injuries caused to the residents.

He claimed that a new shift system had caused at least one death and one unnecessary operation taking place, and said that he and a small number of consultants were overworked and patient safety and continuity of care were compromised. The claimant had told the Manchester hearing he raised his concerns about the new ‘Consultant of the Day’ system with the trust clinical director Mr Watson and then the trust medical director Mrs Schram; however, he was reprimanded and told not to voice concerns again. The consultant said he was then investigated over a series of ‘malicious, vexatious and frivolous’ allegations and ‘imaginary deaths and complications had been conjured up’ to create a case against him. He believed that the investigation and the process from the beginning was about punishment for raising his clinical concerns, and he argued that the investigation did not examining the veracity’ of the allegations against

A variety of data will be required to test the theory of effectiveness being employed. Firstly, data will be required regarding incidences where in EMNC could be faced with lawsuits ranging from: patient negligence to a, failure to protect nursing staff and other health care workers from injury. Other data will come from the literature on health care giver standards that have been shown to help avoid lawsuits, (e.g. failure to use equipment in a responsible manner, failure to communicate, failure to document patient care and failure to act as a patient advocate).

In this case, the accident is the proximate cause of Mrs. Smith’s injuries and the medical providers are the intervening cause, as their breach of duty exacerbated Mrs. Smith’s injury to the point of permanent disability and disfigurement.

The NHS Litigation Authority is now responsible for claims of clinical negligence, with trusts in England belonging to the Clinical Negligence Scheme for Trusts (CNST) run by the NHSLA; with the current structure providing indemnity for all those employed by the NHS; whereby ‘NHS employers are ordinarily responsible for the negligent acts of their employees where these occur in the course of the NHS employment’ (NHSLA, 2011). It could be argued that because doctors are no longer individually liable for their actions, this could invoke a reduced standard of care. In spite of this, Towse & Danzon (1999) suggest that with the assumption that an employer is at a better position to mitigate risk than its employees; this move to ‘enterprise liability’ should further improve deterrence. Tappan (2005) adds that adopting enterprise liability helps deterrence by giving hospitals incentives to gather data and eliminate errors; and due to the heightened financial risk, to identify and deal with doctors providing inefficient treatment. This is supported by NHS policy, which states that if it is deemed appropriate to do so, a Trust may ‘take disciplinary action against the individual responsible for the negligence which caused the harm’ (NHS, 2005). Since the NHSLA also provides incentives, such as discounts ‘to hospitals that achieve certain

This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. Supporting this argument is the courts departure from the principles established in McFarlane v Tayside Health Board [1999].Additionally, Cattanach extends itself by attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. This has ultimately led to Cattanach establishing a positive framework, previously not recognised by the courts, to award damages for the torts of wrongful birth and wrongful life. Finally, the reaction to Cattanach on the judicial and executive branches of government have had significant impact on shaping public policy in relation to these complex issues.

‘The providers had failed in its legal duty to notify the Care Quality Commission of serious incidents including injuries to patients or occasions when they had gone missing.’

Over the last 15 years or so a number of cases concerning patient care and safety have come to light prompting investigations and inquiries that have led to changes in the way care is delivered. These include inquiries at Winterbourne View hospital, Mid-Staffordshire hospital(Mid staffs) and Harold shipman to name a few.

A second issue is malpractice. Malpractice issues are always present in an unstable environment where patients will seek to remedy an incident if they feel they have been harmed (Hamric, 2009). It is important to always act in a reasonable way as a health care clinician but unfortunately there are always those who are negligent in their actions as practitioners.

Torts of negligence are breaches of duty that results to injury to another person to whom the duty breached is owed. Like all other torts, the requirements for this are duty, breach of duty by the defendant, causation and injury(Stuhmcke and Corporation.E 2001). However, this form of tort differs from intentional tort as regards the manner the duty is breached. In torts of negligence, duties are breached by negligence and not by intent. Negligence is conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm(Stuhmcke and Corporation.E 2001). The standard measure of negligence is the universal reasonable person standard. The assumption in this case is that a reasonable

The negligence of this incident had a negative impact on the patient’s family members. Approximately 25% of cases involving medical negligence involve poor nursing care. Another negative aspect was patient’s family follow up was poor resulting in lack of importance highlighted on the pressure wounds. Ashley (2003) states nurses can be sued for malpractice, this means he or she is being sued for “negligence”. Furthermore, the nursing health professionals can lose its credibility among a community as they failed to provide a holistic care for the patient. However, a positive outcome was nurses were able to reflect among this evidence based practice to assist in better quality in patient

St George, (2007) suggests that although health professionals are self regulating, we as a New Zealand society require accountability in regards to good medical practice. In regards to the Supreme Court of New Zealand in the disciplinary

The court system does not seem to base their judgment on legal elements and legal facts but a major consideration on public policy and interest. This can be seen in Barnett v Chelsea & Kensington Hospital , where the ratio is that the patient would have died anyway in spite of the doctor’s examination. To impose a liability on the doctor would give rise to many claims, involving many unnecessary claims. However, doctors’ duty is to examine a patient and decide on the plan of treatment, where in this case, the doctor did not even examine the patient. The reluctance of the court to impose a liability on public bodies can also be seen in Alcock v Chief Constable of South Yorkshire Police . The court was reluctant to impose a liability on the police force, even when the Taylor Report reported that the accident was caused by the negligence of the police force, as they let too many supporters in. There are enough facts in these two cases to impose a liability on the doctor and the police department respectively, however, the reluctant approach from the court towards public bodies have resulted in unsuccessful claims in these two cases.

This paper is divided into two parts. The first part will examine the definitional clauses of the Consumer Protection Act 1986 and review its scope through case law to show the present position of the law. The argument in the first part will pitch patients and victims of medical negligence cases within the scope of the statute.