Kumar introduces that a medical negligence is an act or an omission which has been committed by a health care provider that is not reached up to the standard level of practice accepted by the medical community. That act or omission should cause an injury to the patient.
In addition, he explains that the negligence is considered to be an omission that is a reasonable man who cogitates in regulating human behavior would do, or to be an act which is committed what a reasonable man would not do.
Thirumoorthy defines medical negligence as “the failure to exercise an accepted standard of care in medical professional skills or knowledge resulting injury, damage or loss.”
In the Sri Lankan literature Professor Ravindra Fernando has presented a slender definition clarifying that as “the breach of the duty of care towards a patient by an act of commission or omission resulting in damage or harm or injury to a person”. This can be happened by an any kind of a health care provider or a doctor.
2.1.1 Elements to be proved in Medical Negligence Action
Medical negligence comes under the tort law or law of delict. Therefore, the elements of the Aquilian Action are known to be proved automatically supporting the specified requirements. According to the Burchell’s view a wrongful or unlawful conduct with an intention or negligence supported with causation and takes place within the legal capacity which causes a loss to the other party establish the Modern Aquilian Action.
Professor Ravindra Fernando describes that a plaintiff in medical negligence action has to prove,
• Initially, the establishment of the duty of care towards the patient by the physician,
• Secondly, the breach of the duty of care by the physician by act of a commission or omission,
• Thirdly, the damage or harm or loss must be a result of that breach of the duty and
• Finally, the most important is the causal connection between the act and the resulted damage, harm or loss.
Dr. Thirumoorthy also refers the above elements simplifying as an owed duty of care, a breach of that duty, causation and the damage to be proved in medical litigation.
Kumar states that in a medical negligence litigation the following four elements are necessary to be proved by the patient.
i. A duty of care towards the patient which is legally owed when the doctor or health care provider undertakes the treatment of the patient.
ii. A breach of that duty of care as a result of failure to attend the accepted standard of care.
iii. The immediate cause of the injury must be that breach and it could be reasonably foreseeable.
iv. The claim should be on a valid pecuniary or an emotional damage.
2.1.2 The Duty of Care
Thirumoorthy states that when a doctor has any therapeutic relationship or undertaken a surgical procedure that particular doctor is owed a duty of care towards his patient. According to him, the medical staff and others can be excluded from the duty of care depending on the situation.
He makes and effort to establish the duration of the duty of care. It is assumed to be the starting point of the duty of care have not been fixed under the law. The end can be unilaterally decided by the patient but not by the doctor. To do away with the caring towards the person by a doctor is legally and ethically considered to be wrong.
In Froggrat v. Chesterfield and North Derbyshire NHS Trust case it was identified that a doctor owes a duty of care not only towards the patient but also towards some third parties who can be suffered due to the patient’s injury or damage.
Considering the institutional liability, the court accepted that a hospital also owed a duty of care towards a pregnant mother to deliver her child within 30 minutes by a caesarean operation in the Richards v. Swansea NHS Trust case.
Dr. Ruwanpura reveals several significant factors on doctor-patient relationship to be considered in negligence according to the medical ethics. He states that it starts as soon as the doctor undertakes the patient to treat, and it does not end where mere the doctor stops the drug therapy or any other procedure. The patient should be assured that he has been properly cured by the disease what the doctor had undertaken to treat.
He moreover, states that if the doctor wishes to repudiate the treatment it should be given a considerable time to find a new doctor. The doctors who private practice, have a right to select patients to treat without giving any reasons, except where an emergency.
2.1.3 The Standard of Care
Lavlesh Kumar reveals that the standard of care under civil law is the degree of prudence, care and attention required of a person who is under a duty of care. Professionals are expected to have a higher standard of care rather than the ordinary people. This concepts basically founded on how a reasonable man would act under the same circumstances of given facts.
McNair J in the Bolam’s case held that a doctor is not guilty of negligence if he has acted in accordance with the opinion of a responsible body of medical professionals skilled in that particular capacity. He, moreover, stated that when a doctor is unable to practice the ordinary skills to give the ordinary protection would be guilty of negligence. Hence, the necessity is to justify the action by the accepted board of medical professionals of the same capacity or higher. This has been developed as the “Bolam Test”.
The nepotism of the Bolam Test is heavily connected to the medical profession. It basically, depends on a structured and logically made justification. It is not flexible to adapt what the law ought to be. Medical professionals can defend and justify the medical practitioner with their own logic even though, the patient was under a huge risk. Therefore, the Bolam test is considered to be in favour of the defendant. Where a case found in in late 20 th century a child died because of a brain damage caused by a respiratory collapse and a cardiac arrest the Bolam test could not be applied. The issue was, the physician did not attend the patient and the result of the Bolam test was whether he attended or not the result would be the same. The application of causation could not be justified with the Bolam Test without an analysis of risk by the judge with the evidence. The Bolam’s test justified by the judicial intervention in a court of law has been developed as the “Bolitho Test”
Farquaharson LJ, held in the Bolitho’s case that it is not enough to justify the practice by a number of professionals what he has done or omitted. The judge must analyze the risk of the patient and what clinical practice stood in favour to patient to be in risk with all relevant evidence.
Dr. Ruwanpura states that “A person who professes to be a doctor implies that he or she is competent” Nevertheless, the doctor does not imply his ability beyond his level of expertise. He furthermore, reveals that the standard of care depends on several other factors as limited staff, resources and equipment too.
He describes that the patient care by a doctor covers the areas of consent, diagnose, treatment and overall management as well.