Consent for Medical Treatment: What is 'Reasonable'?

The General Medical Council (GMC) instructs doctors to act 'reasonably' in obtaining consent from patients. However, the GMC does not explain what it means to be reasonable: it is left to doctors to figure out the substance of this instruction. The GMC relies on the Supreme Court's judgment in Montgomery v Lanarkshire Health Board; and it can be assumed that the judges' idea of reasonability is adopted. The aim of this paper is to flesh out this idea of reasonability. This idea is commonly personified as the audience that has to be satisfied by the doctor's justification for offering, or withholding, certain treatments and related information. In case law, this audience shifted from a reasonable doctor to a 'reasonable person in the patient's position'; and Montgomery expands the audience to include 'particular' patients, too. Senior judges have clarified that the reasonable person is a normative ideal, and not a sociological construct; but they do not set out the characteristics of this ideal. John Rawls has conceived the reasonable person-ideal as one that pursues fair terms of co-operation with other members of society. An alternative ideal can be inferred from the feminist ethic of care. However, the reasonable patient from Montgomery does not align with either theoretical ideal; but, instead, is an entirely rational being. Such a conception conflicts with both real-life constraints on rationality and the doctor's duty to care for the patient, and it challenges the practice of medicine.

An Award of Damages for Commercial Surrogacy Overseas?

This article examines the United Kingdom Supreme Court decision in Whittington Hospital NHS Trust v XX [2020] UKSC 14. The case centred on whether damages could be awarded for the cost of a commercial surrogacy arrangement in California, following clinical negligence by the hospital that left the plaintiff unable to carry her own children. After examination of this case, the article outlines and compares the United Kingdom and Australian surrogacy laws. It then discusses how a similar case would be decided in Australia and argues that the result would be the same in some Australian States. It also discusses the concept of reproductive autonomy and the importance of this concept when considering cases involving the loss of fertility.

A Discrete Choice Experiment to Elicit General Population Preferences Around the Factors Influencing the Choice to Make Clinical Negligence Claims.

OBJECTIVES: This article determines public stated preferences around different factors that influence the choice to make clinical negligence claims against a national healthcare system. METHODS: A large online survey was conducted using a discrete choice experiment (DCE) with the UK general population (N = 1013). DCE tasks involved a single profile and participants chose whether to make a claim for compensation (yes/no) after one of 3 randomly allocated patient safety incident (PSI) "scenarios" of different severities (mild, moderate, severe). DCE attributes described the actions of the healthcare system after a PSI and characteristics of the clinical negligence claims process. The data were modeled separately for each scenario (mild, moderate, severe) using logistic regression. Marginal effects and the probability of making a claim in a baseline case were estimated. RESULTS: Probability of choosing to claim was reduced by receipt of an apology, investigation and prevention of recurrence of the PSI, and longer time until claim decision and increased by an easy and straightforward claims process and high chance of compensation and for the mild scenario higher compensation amounts. Marginal effects and baseline case probabilities differed by scenario severity. CONCLUSIONS: The results suggest the actions of the healthcare system after a PSI and characteristics of the claims process have a larger impact on the probability of making a claim for milder PSIs. For more severe PSIs, a larger probability of making a claim was observed, and the choice was less influenced by the actions of the healthcare system after the PSI and characteristics of the claims process.

Medicolegal issues for the respiratory paediatrician.

The legal profession depends on expert witnesses, and indeed the first time an English Court relied on an expert medical witness was in the 14th century. Asking a specialist to comment on the standard of professional practice expected in their own specialty was first introduced in a 1767 case [1]. This article draws on 20 years of experience in medicolegal work relating to paediatric respiratory medicine. It highlights some of the legal principles that lie behind an expert opinion and what constitutes clinical negligence. It aims to set out lessons for medicolegal experts and clinicians, but also offers some advice to lawyers and parents. Finally, it illustrates some issues that arise more commonly in paediatric respiratory practice.

Medical Intervention as a Novus Actus Interveniens: Giving Meaning to the Concept of Gross Clinical Negligence.

The focus of this article is the notion that only grossly negligent conduct by a health care provider will constitute a novus actus interveniens and break the chain of causation between a tortious act and the ultimate harm suffered by a plaintiff. More precisely, it explores the question of what it means for a health care provider to be grossly negligent. Its purpose is not to devise an exhaustive list of acts or omissions likely to constitute grossly negligent medical treatment; it is not necessary or even prudent to do so. However, it is argued that more clearly defined parameters are needed to distinguish ordinary, actionable negligence from gross negligence in a clinical context.

Clinical negligence claims for pressure injuries from the perspective of a tissue viability medico-legal nurse expert.

Clinical negligence claims for pressure injuries against the NHS continue to rise annually. This article will discuss the number of claims and financial costs to the NHS, together with the legal processes involved. Issues such as duty of care, breach of duty and harm and how these are interpreted in law will be explained, together with advice on how to avoid a potential negligence claim in the future. The author will discuss scenarios specific to primary care, such as non-adherence to pressure injury prevention strategies and how to manage these effectively. The importance of accurate, concise, relevant and factual documentation will also be discussed in detail.

Samantha Thimmaya v Lancashire NHS Foundation Trust v Mr Firas Jamil.

In Samantha Thimmaya v Lancashire NHS Trust v Mr Firas Jamal (Thimmaya), Mr Jamil, an expert witness acting for the Claimant in a clinical negligence action, was ordered to pay part of the Defendant's costs, amounting to over £88,000. The court determined that his conduct as an expert had been 'improper, unreasonable, or negligent', thus enabling the court to make a third-party costs order against him. Although the case must have raised alarm amongst medical experts, the facts of the case show that it concerned a very unusual set of circumstances. Additionally, the more recent case of Walker and Walker v Tui UK Ltd v Dr Timothy Leigh (Walker), also discussed below, suggests that the threshold to be applied in determining whether costs orders should be made against experts will be higher than that applied in Thimmaya. Both cases serve as a reminder of the duties owed by experts to the court.

Otorhinolaryngology litigation in England: 727 clinical negligence cases against the National Health Service.

INTRODUCTION: Litigation against the National Health Service (NHS) in England is rising. The aim of this study was to determine the incidence and characteristics of otorhinolaryngology clinical negligence claims in England. METHODS: A retrospective review was undertaken of all clinical negligence claims in England held by NHS Resolution relating to otorhinolaryngology between April 2013 and April 2018. Analysis was performed using information for cause, patient injury and claim cost. Where claim information was adequately detailed, the authors categorised claims by subspecialty, diagnosis and surgery. RESULTS: A total number of 727 claims were identified with an estimated potential cost of £108 million. Out of these, 463 were closed claims. Including open claim reserves, the mean cost of a claim was £148 923. Head and neck surgery was the subspecialty with the highest number of claims (n = 313, 43%) and highest cost (£51.5 million) followed by otology (n = 171, £24.5 million) and rhinology (n = 171, £13.6 million). Over half of claims were associated with an operation (n = 429, 59%) where mastoid surgery (n = 46) and endoscopic sinus surgery (n = 46) were equally associated with the greatest number of claims. The most frequent causes for clinical negligence claims included failure or delay to diagnose (n = 178, 25%), failure or delay to treat (n = 136, 19%), intra-operative complications (n = 130, 18%) and failure of the consent process (n = 107, 15%). DISCUSSION: Clinical negligence claims in otorhinolaryngology are related to several different components of patient management and are not limited to postoperative complications. This study highlights the importance of robust pathways in out-patient diagnostics and the consenting process in order to deliver better patient care and reduce the impact of litigation. Keywords informed consent, malpractice, clinical negligence claims, litigation, otolaryngology.

A New Argument for No-Fault Compensation in Health Care: The Introduction of Artificial Intelligence Systems.

Artificial intelligence (AI) systems advising healthcare professionals will be widely introduced into healthcare settings within the next 5-10 years. This paper considers how this will sit with tort/negligence based legal approaches to compensation for medical error. It argues that the introduction of AI systems will provide an additional argument pointing towards no-fault compensation as the better legal solution to compensation for medical error in modern health care systems. The paper falls into four parts. The first part rehearses the main arguments for and against no-fault compensation. The second explains why it is likely that AI systems will be widely introduced. The third part analyses why it is difficult to fit AI systems into fault-based compensation systems while the final part suggests how no-fault compensation could provide a possible solution to such challenges.

DEVO-(WO) MAN? A MOVE IN RESPECT OF PERSONAL SOVEREIGNTY AND DECISION-MAKING IN HEALTH CARE? Anita Border v Lewisham and Greenwich NHS Trust [2015] EWCA Civ 8.

This case commentary discusses a recent case concerning the determination of acceptable clinical practice. It critically examines two particular elements of the judgment-the method for the determination of acceptable clinical practice including the impact (if any) of the Bolitho exception. It then moves on to considering the importance of consent as a pre-requisite for medical treatment and the interplay of negligence and battery in this area. It concludes by examining the possibility that the courts in England and Wales might be entering an era of judicial assertiveness in the regulation of clinical practice.

The market for precedent: shifting visions of the role of clinical negligence claims and trials.

This article considers the interface between the standard setting activity of the NHS Litigation Authority, and the courts and uses the clinical negligence action as a prism through which to examine it. It is suggested that despite its many disadvantages, the clinical negligence action remains an important safety valve when internal regulatory systems fail or are insufficiently transparent to gain full legitimacy. More specifically, it explores the ways in which attitudes about the usefulness of the data contained in claims against the NHS have changed in the aftermath of a number of high profile inquiries which have focused on issues of poor performance. The article concludes that while much greater use is now been made of the data contained in claims when setting standards, strategies for prompting judicial precedent as an alternative way of mobilising standard setting behaviour remain under developed.

Clinical negligence and physiotherapy: UK survey of physiotherapists' experiences of litigation.

AIM: To investigate the extent and impact of litigation on the UK physiotherapy profession. DESIGN: An online cross-sectional questionnaire survey design was used. The survey was open to all qualified physiotherapists who have practiced in the UK, from any speciality, of any grade and from any setting including NHS, non-NHS, and private practice. RESULTS: 688 respondents completed the survey (96% CI). All UK nations were represented. 73% were female, 44% were qualified >20 Years. Most worked in the NHS (74%) and worked in a neuromusculoskeletal setting (62%). 10% of respondents had been involved in litigation. 128 claims were reported with some respondents being involved in more than 1 case. Litigation was a highly stressful experience for those who experienced it and was a source of concern for many others. The personal impact was stress (76%) and worry and anxiety (67%). The most common professional impact was defensive practice (68%). Most respondents incorrectly identified who should provide their legal support. 46% were not satisfied with the support received. Most (77%) reported that litigation training should be included in pre-registration, as well as postgraduate (68%) programs. CONCLUSION: This is the first UK survey that has investigated the experiences of litigation on the UK physiotherapy profession. Ten percent of physiotherapists in our survey had been involved in litigation. Litigation impacted physiotherapists' physical and mental wellbeing and their clinical practice. Improved support, both emotional and legal is required. Clinical negligence training should be included in pre-registration and postgraduate programs. CONTRIBUTION OF THE PAPER.

Current thinking about medicolegal aspects of temporomandibular joint surgery.

This paper considers the current situation regarding medicolegal risks in temporomandibular joint surgery from three perspectives: the law, the patient, and the surgeon. The law relating to successful claims of clinical negligence requires that a cause-and-effect relationship is demonstrated by the claimant. Complications are considered in the light of recent research on their stratification in other fields of surgery. Surgeons become repeat offenders rarely. They display certain common characteristics which are discussed in this paper.

Psychiatric Illness and Clinical Negligence: When Can "Secondary Victims" Successfully Claim for Damages? Recent Developments from the United Kingdom.

On January 11, 2024, the United Kingdom (U.K.) Supreme Court rendered its judgment in Paul v Royal Wolverhampton NHS Trust, restricting the circumstances in which "secondary victims" can successfully claim for damages in clinical negligence cases. This ruling has provided welcome clarity regarding the scope of negligently caused "pure" psychiatric illness claims, but the judgment may well prove controversial. In this article, I trace the facts and opinion from the majority and also discuss an important dissenting opinion. I then reflect on what the ruling means for psychiatric illness claims by secondary victims, and more broadly on the implications for clinical negligence law. I suggest that while much-needed clarity has been injected in this area of the law, it is difficult, reading the majority of the Supreme Court's emphasis on the restricted scope of a medical practitioner's duty, to envision a scenario in which secondary victim could ever succeed in a clinical negligence context.

Clinical negligence in temporomandibular joint surgery.

This study reviewed the medical reports of 25 patients (21 female and 4 male) who were found to have been treated inappropriately by temporomandibular joint (TMJ) surgery. One of more Breaches of Duty and resultant harms (Causation) were identified for each of the patients in this series. Their ages ranged from 18-64 (mean 36.2, median 35) years. A narrative review of free text data revealed six main patterns of Breach of Duty which were to do with consent, inadequate pre-surgical imaging, injection of botulinum toxin into jaw muscles, TMJ arthroplasty, management of TMJ dislocation and subluxation, and failure or reluctance to request second opinions. Harms identified included surgical damage to the TMJ, facial nerve dysfunction, and social isolation. One sum claimed was in excess of £1 million.

Investigation of litigation in trauma orthopaedic surgery.

BACKGROUND: It has been said that the number of orthopaedic claims has increased in the last few years. Investigation through the most prevalent cause would help to prevent further cases. AIM: To review the cases of medical complaints in orthopedic patients who had been involved in a traumatic accident. METHODS: A retrospective multi-center review of trauma orthopaedic-related malpractice lawsuits from 2010 to 2021 was conducted utilizing the regional medicolegal database. Defendant and plaintiff characteristics along with fracture location, allegations, and litigation outcomes were investigated. RESULTS: A total of 228 claims referred to trauma-related conditions with a mean age of 31.29 ± 12.56 were enrolled. The most common injuries were at hand, thigh, elbow, and forearm, respectively. Likewise, the most common alleged complication was related to malunion or nonunion. In 47% of the cases, the main problem that led to the complaint was the inappropriate or insufficient explanation to the patient, and in 53%, there was a problem in the surgery. Eventually, 76% of the complaints resulted in a defense verdict, and 24% resulted in a plaintiff verdict. CONCLUSION: Surgical treatment of hand injuries and surgery in non-educational hospitals received the most complaints. The majority of litigation outcomes were caused by a physician's failure to fully explain and educate the traumatic orthopedic patients and technological errors.

Taking action against medical accidents: A brief history of AvMA and clinical risk management in the NHS.

Established in 1982, Action against Medical Accidents (AvMA)-originally named Action for Victims of Medical Accidents-was effectively the first charity in Britain dedicated to 'patient safety'. This article provides a historical analysis of the origins and work of AvMA, situating its background in the medical negligence 'crisis' of the 1970s and 1980s, growing consumerism in healthcare, and the significant barriers to justice patients confronted following a clinical incident. It also explores AvMA's impacts on evolving attitudes towards patient harm and safety in the NHS. The article asserts that in addition to supporting patients and campaigning for changes in legal procedures, AvMA played an instrumental role in raising the political profile of adverse health events ('medical accidents'). By supporting claimant solicitors and increasing their chances of legal success, AvMA contributed to the rising tide of negligence claims, which incentivised NHS trusts and health authorities to introduce clinical risk management (CRM). By 2000, CRM was being framed as part of a broader mission to improve quality and safety in healthcare, and AvMA was recognised as a key stakeholder in the new patient safety agenda.

A scoping review protocol: Investigating the extent and legal process of cauda equina syndrome claims for UK physiotherapists.

INTRODUCTION: Cauda equina syndrome (CES) is a condition where early identification and treatment is crucial to avoid potentially devastating effects. There is a high number of litigation cases linked with CES given it is a relatively rare condition. This scoping review protocol proposes to explore the extent and process of CES litigation in UK healthcare context cases amongst UK physiotherapists. METHODS AND ANALYSIS: The methodological framework recommended by Arksey and O'Malley, Levac et al. and the Joanna Briggs Institute will be used throughout this review to aid reporting and transparency. A patient and public involvement (PPI) group meeting was convened at the beginning of the review process in order to provide knowledge exchange to inform the search strategy and propose resources to be used during the scoping review. Two reviewers will independently review the literature in order to apply the inclusion and exclusion criteria. Once the studies to be included have been identified, the data from these studies will be extracted and charted. Results will show quantitative data of the studies included in the review and a narrative synthesis of the literature. DISSEMINATION: This scoping review will evaluate the existing knowledge relating to CES and litigation and will map the key concepts around this topic. Results will be disseminated to practitioners and policy-makers through peer-reviewed publications, conferences, reports and social media. This method may prove helpful to others who are investigating extent and processes relating to medicolegal cases involving healthcare practitioners. REGISTRATION: The current paper is registered with OSF registries (DOI 10.17605/OSF.IO/MP6Y3).

A scoping review: Investigating the extent and legal process of cauda equina syndrome claims for UK physiotherapists.

INTRODUCTION: Cauda Equina Syndrome (CES) is a condition where early identification and treatment is crucial to avoid potentially life changing devastating effects. This paper reviews the extent and process of CES litigation amongst UK physiotherapists. METHODS: A well-established framework by Arksey and O'Malley was followed when completing the current scoping review. Records were identified via a comprehensive search of three databases as well as website and grey literature searching. Data was extracted and a descriptive analysis and thematic summary were formed. RESULTS AND DISCUSSION: A total of N = 1639 records were identified, following removal of duplicates and screening of titles and abstracts N = 211 full text records were screened and N = 39 were included for full analysis. CONCLUSIONS: This study is the first to investigate the extent and process of CES litigation for physiotherapists in the UK. Our data suggest that between 2009 and 2021 there were 15 CES claims recorded against physiotherapists which is 0.7% of all CES claims recorded in the UK. In terms of the legal process for CES claims, there is currently limited information for physiotherapists and what steps they would need to take once they receive notification they are being sued. REGISTRATION: The current paper is registered with OSF registries (DOI 10.17605/OSF.IO/6FCXN).