Medical Law: 20th Century Writing For 21st Century Medicine

Medicine and healthcare is driven by innovation.

It is innovation in healthcare, surgical techniques, greater recognition of diseases and illnesses, modern medicines, and a host of other modern (increasingly technologically driven) medical procedures and theories that drives healthcare and medicine forward, and enables more and more lives to be saved. Medical innovation has allowed for more people to survive and have fulfilling lives with conditions and illnesses that would have been fatal in the past.

When it comes to regulating healthcare, though – it is the opposite. Medical regulation, oversight and laws are firmly rooted in the past. It is the past settled and decided legal cases that become binding legal precedent which guide and (sometimes) limit doctors. It its laws and regulations that came into force sometimes decades earlier that govern medicine. Those cases and statutes were decided in previous times; not only was society different, but medical techniques, understanding and treatment were also often different.

The result is that medicine often struggles to advance and evolve, to keep up with modern disease and illnesses, whilst being held back by legislation and leading cases that sometimes become out of date after a decade – but are still binding on all parties.

Medical negligence law is a very good example of this.

It is very regrettable and unfortunate that medical negligence happens. Despite all the advances possible, it is only too easy, sadly, for medical errors to happen. Those errors can wreak havoc with someone’s life, and the lives of their families. Despite the very best efforts and intentions of doctors, nurses and pharmacists to “Do No Harm” – unintentionally, accidentally, sometimes that is just what they do.

Whether it is from a misdiagnosis, an incorrectly performed operation, or incorrect medication, the result of medical negligence can be to leave someone with worse injuries than before. In some cases, their original ailment might still be untreated, or even still undiagnosed. Aside from that (often extensive) physical damage and ill health, it is the mental pain and anguish that can be the worst following medical error. Rehabilitation and recovery takes time: in many cases, physiotherapy or occupational therapy are needed. Specialist treatments or medications might also be necessary. Recovering from the injuries received after medical error can be lengthy – and also expensive. Medical negligence can easily take its toll upon home and family life, and also work. There is also very much the financial aspect to consider.

Under medical negligence law, both professionally and legally, doctors and other clinicians are held accountable for their actions, patient care and the procedures they perform. As such, under tort law (part of the UK civil legal code), the injured patient can make a legal claim against a clinician following medical negligence.

Under both medical ethics doctors and clinicians have a clearly defined duty of care towards their patients. Similarly, clinicians are held to a very high standard of professional care and advice towards their patients. Where medical negligence occurs, the question to be posed is whether that duty of care was breached. Did the clinician act in such a way that was firstly substandard, and that resulted in a breach of that duty?

Under a civil and tort legal claim, factors such as causation and remoteness have to be established. Remoteness is concerned with whether the damage received by the patient was so remote from the actions of the doctor that is could not reasonably be foreseen. Legally, remoteness is fairly easy to establish, deriving as it does from the leading case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961) UKPC1 (The Wagon Mound No. 1) – which dates from 1961. It is still good law and binding legal precedent – but here an old case sets the rules for medicine in 2016.

Turning to causation – that is less straightforward. Causation is essentially when it is determined what the (legal) factor or factors of the wrong (in this case, medical negligence) was. Causation is incredibly complex, with contradictory case law dating from the last 50 years. Causation burrows down onto the very minutiae of what happened, seeking to establish the exact cause of the medical negligence, with those 50 years of case history requiring several different legal theories and tests to be applied.

In common with other personal injury law, the other requirement when establishing medical negligence is that the medical error was the fault of the doctor, and not the patient. Contributory negligence can sometimes be established, when the actions of the patient contributed to their own injury, or the medical errors. However, in the vast majority of medical negligence cases, it will be the clinician who is at fault. As such, that legal requirement if fault is often merely a legal formality.

Although the patient is often in poor health and suffering after medical negligence – the patient very much has the legal right to seek a legal remedy to their medical wrong. Additionally, in a great many medical negligence cases, the injured patient can be awarded financial compensation. Although that compensation will never replace ill health, or the mental anguish, it can go a long way financially and practically. After medical negligence, many patients are upset, angry and bewildered, desiring an explanation and apology. Patients have rights under medical law, and should not be afraid to seek a legal remedy after suffering from medical negligence, to obtain justice, and an apology and explanation.

Despite having those undoubted rights, and protections following medical negligence, the cases and statutes governing medical negligence date back 40 or so years on average. Whilst still good law, and current legal practice, in some cases they are in need of updating. A good example is the concept of informed consent. It was the case of Sidaway that first set out in simplistic terms the concept of informed consent in 1985. It was not until 2015 that Montgomery was decided, which gave informed consent a proper, dedicated legal basis.

Although medical law (such as the rules surrounding medical negligence) enshrines the rights of both patients and doctors – sadly it is not as advanced as the medicine and society it is supposed to reflect.

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