Clinical Negligence Cases

Clinical Negligence Cases

Clinical Negligence Cases

Question:

A doctor is not guilty of negligence if he has acted in accordance with… a practice, merely because there is a body of opinion that takes a contrary view'. Per McNair J in Bolam v Friern Barnet Hospital Management Committee [1957] Discuss to what extent this still applies in clinical negligence cases.

Answer

Before a patient undergoes any medical treatment, the common law requires the health professional first obtaining the consent of the patient. The requirement of consent in medical law is based on the idea that every competent adult patient has the right to consciously choose whether to treat your body to a medical examination. The right to make autonomous decisions also gives patients the right to refuse medical treatment, even if the reasons for refusal are "irrational, unknown or even nonexistent." In these circumstances, the health professional must meet the patient's wishes despite the fact that refuse treatment is in the best interest of the patient (World Health Organization .2002).

If the patient consents to treatment, the physician must ensure that consent is valid to avoid any case of malpractice. For consent to be valid, the English law requires, among other things, that patients receive information about the "nature" of treatment. However, it is important to note that unlike the United States and Canada, there is no formal doctrine of informed consent in England. In the North American jurisdictions a patient should receive information about "the nature of the treatment, expected benefits, material risks and side effects, alternative courses of action and the possible consequences of not having treatment. Although English law recognizes that physicians have a duty to disclose exactly what and how much information doctors are required to give their patients has been the subject of judicial debate over the past 50 years. The question then is twofold: How far the courts of England recognized the importance of patient autonomy in medical practice and what limits have the courts set the amount of information that requires a physician to give a patient before we can say that the consent of the patient was informed and therefore valid (Weingart et al, 2000)?

In Boland v. Frien Hospital Management Committee, the Court held that it was "entirely from the medical profession to decide how much information should be given to patients." According to the decision of J. Bolaños McNair, a physician can avoid a malpractice suit, to the extent the information provided (or not included) into the patient was in 'accordance with accepted practice as its own entity by the medical experts that men "art in particular. In other words, the physician may avoid liability by proving that the physician, through expert testimony that the physician's failure to warn a patient of a particular risk, in line with "good medical practice." This is true even if other professionals in the field of medicine that have chosen to advise the patient of the dangers associated with medical ...