Medical Negligence Law

This text examines the connotations of the medical negligence law, and considers some of the legitimate but conflicting interests. It examines how the legal system regulates negligent clinical judgements, why conflict arises and the extent to which the legal system may reconcile these differences.

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This text examines the connotations of the medical negligence law. It argues that the adversial litigation system, the claim for compensation via negligence is unhelpful as it has increased the tension between patients and doctors. Evidence suggests that doctors tend to perceive a finding of negligence as a permanent indictment of their professional standards and competence. Research studies have suggested an approach of no fault compensation. It is just as important, though, to encourage accountability, including a mechanism whereby patients can vent their concerns. This work considers some of the legitimate but sometimes conflicting interests which the public and the medical profession have in the way in which the legal system regulates negligent clinical judgement. Whilst not supporting one side or the other, it attempts to examine why the conflict arises and how the legal system may reconcile these differences. It examines the theme that the law of tort and delict is too old-fashioned to deal with the realities of modern medical practise and argues that the liability of the front-line doctor, who may well be a junior is over-emphasized.
It fails to take notice of organizational managerial and even consultant level responsibility. Suggestions of an emerging trend of greater medico-legal awareness of research and epidemiological surveys are to be welcomed. It is also argued that the litigation system tends to encourage defensive and confrontational attitudes and ideas are put forward to try and minimise these unfortunate concomitants of the present system. The discussion of negligence remedy in this context argues that its main aims, broadly speaking compensation, accountability and deterrence are not sufficiently realised. The argument is that too many compromises are inherent in the close way in which they are bound together. It suggests that these aims should be split up and pursued by separate mechanisms. Additional goals are proposed for the regulatory system, such as education and preventation which it is argued are insufficiently realised under the present arrangements. The text suggests ideas for enhancing accountability, including for example, the wider role of the ombudsman.
However, before such issues are discussed, the principles of liability are outlined and some aspects, including damages, and the way the adversarial litigation system operates are discussed. It provides an outline of other regulatory methods, eg the criminal law, professional discipline and complaints mechanisms. It examines critically the operation of litigation for medical negligence and reflects upon the lessons which various critiques and researchers may provide for the system. Ideas are put forward for possible reform, which implement the main principles which have emerged from the preceding chapters.