Legal accountability for the provision of medical care: a comparative view
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1 648 Journal of the Royal Society of Medicine Volume 86 November 1993 Legal accountability for the provision of medical care: a comparative view Dieter Giesen Dr iur(bonn) MA Professor of Private and Comparative Law, The Free University of Berlin, Faculty of Law, Boltzmannstrasse 3, D Berlin (Dahlem), Germany Keywords: medical law; negligence; informed consent; quality in health care; legal requirements Introduction In recent years it has become customary to speak of a medical malpractice crisis' (pp 483-7), a phenomenon characterized by a sharp increase in the numbers of injured patients seeking recovery at law, a steep rise in the insurance premiums which doctors have to pay and a growing sense of grievance on the part of medical professionals toward the law, which they see as unacceptably intrusive upon the discharge of their primary function, namely the application of their professional skills in the best interests of their patients. The inexorable advance of medical science, to the advantage of the whole community, is, it is suggested, wilfully hindered by the imposition upon doctors of ill-considered rules of liability and standards of care. It is therefore incumbent upon lawyers to address the fears of medical practitioners and to attempt to reduce the atmosphere of distrust which has become the hallmark of contemporary relations between the professions. It is submitted that this distrust, if not outright hostility, is the product of a widespread confusion and a lack of information on the part of medical practitioners and their representatives in relation to the central function of the law governing medical malpractice. In other words, medical opinion does not, by and large, reflect a comprehension of those concerns which are central to the judicial function of determining and imposing legal standards of care in the medical context. It is proposed, in the course of this paper, to expose and elaborate upon these central concerns of the law, through a comparative study of the relevant rules of liability which will look beyond the particular and the purely national to ascertain the basic legal conception of the role of doctors in the provision of health care. The legal picture is, however, not wholly uniform and there exist considerable differences between the relevant legal rules in Britain and those elsewhere. It will be shown that the position in England and Scotland is inconsistent with the legal regime governing all other professions, with the standards expected of doctors in all other member states of the European Community, as well as in the major common law jurisdications, and, perhaps most fundamentally, with the central function of the law in all democratic societies. Additionally and perhaps most importantly, it will be shown that the patientcentred approach of most legal systems is considerably different from that traditionally accepted by those who practice and teach medicine. Objective standards in treatment and diagnosis In all common law countries the standard of care which is expected of doctors in the performance of their therapeutic and diagnostic functions is that laid down by McNair J in the landmark English case of Bolam v Friern Hospital Management Committee2. According to this test, a defendant doctor will not be held liable if he conformed to the standard of an ordinary skilled man exercising and professing to have that particular skill which the defendant held himself out as possessing. This standard does not require perfection of the doctor in the performance of his tasks, nor does it make of him the guarantor of a successful outcome to the patient's course of treatment. As long as the doctors act in accordance with the practice of a responsible body of medical practitioners they will not incur a legal obligation to compensate the disappointed patient. It is obvious, however, that the so-called Bolam test cannot be applied without the testimony of expert medical witnesses to assist in determining what exactly the prevalent practice or practices are in the area of treatment or diagnosis under review. Perhaps due to the admitted complexity of medical evidence, but perhaps also because of the exalted status of the medical profession in the eyes of the judiciary, decisions in England and Scotland betray an unusual deference to doctors' interests. Thus, in Scotland the Bolam test was interpreted to imply that a defendant will not be held liable unless... he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary cae3. This minimalist approach clearly reduces the scope for judicial evaluation of the differing practices of the profession in any given field. The plaintiff-patient's position of relative weakness at trial is exacerbated when the decision of the House of Lords in the case of Maynard v West Midlands Regional Health Authority4 is considered. There Lord Scarman held, however, that... a judge's preference for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence5. This ruling seems to indicate that expert medical evidence enjoys virtually conclusive status in the law of England and Scotland. If so, the British medical profession are privileged beyond their colleagues in the rest of the developed World' (p 92, refs) and also by comparison with members of other professions in the United Kingdom6. Comparison shows the singularity of the British position' (pp ). While accepting that recourse to expert evidence will be necessary in deciding Paper read to Forum on Quality in Health Care, 10 February 1993
2 Journal of the Royal Society of Medicine Volume 86 November professional negligence cases, courts elsewhere in the Common Law World have consistently and emphatically stated that the role of the expert witness is always subordinate to the discharge of what is ultimately and exclusively a judicial function, namely that of determining legal standards of care. Similarly courts in the civil law countries of mainland Europe have clearly rejected the unquestioning adoption by the law of expert medical evidence. Such evidence merely provides a factual basis for the application of wholly legal standards1 (p 119, refs). In most legal systems the test of liability is, therefore, not merely a descriptive summary of various widespread professional practices. Rather, it involves the application, by the judiciary, of an objective, normative standard of care. This crucial objective aspect of the legal standard is made explicit even in the aforementioned Bolam test, which requires that the medical practice adhered to by the doctor have been that of a responsible body of medical men. Thus, and contrary to prevalent opinion, English and Scottish judges are empowered and indeed obliged to evaluate even the most commonly followed approaches to treatment and diagnosis and in doing so to determine their reasonableness and legal acceptability. In short, doctors cannot be allowed to set their own standards of conduct. As it was put by the High Court of Ontario7, [n] o profession is above the law and the courts on behalf of the public have a critical role to play in monitoring and precipitating changes where required in professional practices8. In this regard it may be noted that it is all too often overlooked by critics of contemporary medical malpractice law that an objective standard is applied to all other defendants including those who are members of the other major professions. Any failure to meet the standard of care required by law will constitute actionable negligence and, contrary to frequent assertions by Lord Denning MR9, the identification of a 'mere' error of clinical judgement as such will not of itself relieve the defendant-doctor of liability in negligence. Thus, in Whitehouse v Jordan10 Lord Fraser said that ' [m] erely to describe something as an error of judgement tells us nothing about whether it is negligent or not... If the [error] is one which would not have been made by a reasonably competent man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligence'. It is thus no defence for a doctor to claim that his culpa was only levissima. As the legal standard should necessarily be an objective one, no allowance can be made for the particular subjective inadequacies or lack of experience or qualifications of a doctor who holds himself out to a patient as being competent to perform a particular medical procedure. In the case of Wilsher v Essex Area Health Authority12 the Court of Appeal rejected a claim that the putative public interest in enabling medical novices to 'learn on the job' should re-shape the standard of care in negligence. The reasons for this decisive rejection go to the heart of the role of the law in regulating the doctor-patient relationship. In Lord Justice Mustill's words,... it would be a false step to subordinate the legitimate expectation of the patient that he will receive from each person concerned with his care a degree of skill appropriate to the task which he undertakes to an understandable wish to minimize the psychological and financial pressures on hard-pressed young doctors13. It may thus be concluded that courts in most jurisdictions seek to ensure the uniform and coherent protection of patients' rights, through the application of an objective and therefore normative standard of care which precludes the consideration of variable subjective factors, such as those idiosyncrasies both of the doctor and his profession, which would render the patient's exercise of his rights unacceptably contingent. These, it is submitted, are central features of the judicial protection of individual rights in any state based on the rule of law. Unfortunately, we have seen that the injured patient coming before the courts of England and Scotland cannot expect such clear and consistent protection of his or her substantive and procedural rights. The conclusions so far allow us, in a clear-headed manner, to assess the practice known as defensive medicine, the threat of which is frequently invoked both by critical commentators and, indeed by judges themselves. Once the legal standard is accepted to be an objective one, it will be realized that doctors are not well advised to adopt defensive medical practices. This is true of negative defensive medicine, since if the procedures omitted by the apprehensive doctor are such as a responsible body of medical practitioners would have undertaken, the doctor renders himself more and not less likely to incur civil liability. The same is true, in converse fashion, of a doctor who undertakes procedures superfluous to the medically indicated needs of the patient. In doing so, he can only be increasing the potential for careless error, injury to the patient and consequent liability. The courts cannot allow the medical profession, by adopting a particular practice which is negligent by objective standards, to 'legislate itself out of liability for negligence to the public14. Disclosure requirements and patient autonomy The second major area of negligence law in which a comparative study can assist in elucidating the issues at stake in the 'medico-legal' debate is that arising from disclosure malpractice. It will also reveal the fundamental necessity of distinguishing liability under this head from that which was discussed in the foregoing section. It is accepted by most major legal systems that the valid consent of the patient is not merely a question of formalities, but an essential prerequisite to almost all medical treatment, justifying what would otherwise be an unlawful invasion of the patient's bodily integrity15. The particular legal rules relating to informed consent give effect to the patient's basic human right of self-determination, a right which is protected by the written constitutions of Germany'6 and the United States17, but also by the common law of England'8. This right is a corollary of the status of the individual as an autonomous subject, which is central to the legal order in all democratic societies. The core legal and political value of individual autonomy means that, in the medical context, to
3 650 Journal of the Royal Society of Medicine Volume 86 November 1993 ignore the patient's right to decide whether and to what extent he will undergo treatment, is to conscript him to the furtherance of a goal chosen, not by himself, but by his doctor. In Kantian terms the individual is treated as a means to an end rather than as an end in himself. It is, thus, morally and legally irrelevant that the doctor's objective is the entirely benevolent one of restoring the patient to full health. Judges have widely recognized, in this regard, that the patient has the right, on the basis of proper and adequate information, to reach decisions which may seem wholly irrational by the standards of medicine or of the community in general. In short the patient has a right to be wrong1 (pp ). Again in this context, however, it is notable that the law of England and Scotland fails to afford adequate protection to patients' rights. The doctor-patient relationship is one where the courts should be especially concerned to protect individual autonomy for two major reasons. First, it is in the medical context that many of the most profound moral and ethical choices have to be made by individuals. The law, by imposing exacting disclosure requirements upon doctors, ensures that patients' value commitments are respected. Furthermore, it is widely accepted that this most sensitive of relationships is characterized by a stark informational asymmetry, which strongly militates against the full and free exercise of the right of selfdetermination. The patient's position of weakness is exacerbated by increasing specialization and the centralization of medical facilities, which lead to the diffusion of responsibility and diminish the capacity of medical professionals to care for patients on an individual basis. Ultimately, patients tend to be treated not as autonomous subjects, but as the objects of a thoroughly bureaucratic and scientific process. It is in the light of these ethical and factual considerations that we must consider the differing standards of care which courts have required of doctors in the disclosure of the nature, risks and alternatives to proposed courses of medical treatment. Almost uniquely, English law'9, imposes a standard of care, in this regard, based not on the informational needs of the patient, but primarily upon the judgement of the reasonable doctor as to how much information should be disclosed20. In essence, the Bolam test already discussed in relation to treatment malpractice, is equally to be applied by the English courts in the area of consent, even though, as we have made clear, the interests of the patient arising under the second heading are categorically distinct from, and of significantly greater weight than those arising under the first. It is submitted that the majority approach in Sidaway v Bethlem Royal Hospital2' mistakenly accepts the view, which is unfortunately prevalent among medical practitioners, that informational requirements and treatment decisions are chiefly, if not completely, a matter of clinical judgement. By contrast, Lord Scarman, dissenting, supported the standard of disclosure applied in Canada22 and several ofthe United States' (pp , refs) which focuses on the informational needs of the reasonable patient, in the particular patient's position. As Lord Scarman pointed out... a patient may well have in mind circumstances, objectives and values which he reasonably may not make known to the doctor but which may lead him to a different decision from that suggested by purely medical opinion23. This position is supported by the important decision of the Supreme Court of Canada in the case of Reibl v Hughes24. In rejecting the applicability of the Bolam test to the disclosure context, (the late) Chief Justice Laskin stated that the law cannot... hand over to the medical profession the entire question of the scope of the duty of disclosure including the question of whether there has been a breach of that duty25. Of the approaches taken by the House of Lords in Sidaway v Bethlem Royal Hospital26 it is submitted that, having regard to the foregoing discussion, Lord Scarman's is to be preferred. It is noteworthy, none the less, that his approach only requires the doctor to provide such information relating to the nature and risks of treatment as a hypothetical, reasonable patient, in the plaintiffs position would require. The undesirable consequences of applying an objective or reasonable patient test of disclosure, predicated upon average or normal conduct, was made clear by the Supreme Court of North Carolina when it stated that thereby the patient's... supposedly inviolable right to decide for himself what is done with his body is made subject to a standard set by others. The right to base one's consent on proper information is effectively vitiated for those with fears, apprehensions, religious beliefs, or superstitions outside the mainstream of society27. As in relation to liability for the negligent provision of medical care, the objective nature of the standards which the law imposes on doctors is determined by the nature of the judicial function in protecting individual rights. It may be added, however, that the nature of the right involved in any particular aspect of the doctor-patient relationship or the importance of the values which it embodies must, in turn, determine the level of care which is legally required. Thus, while a standard of care based upon the practice of a responsible body of medical opinion may suffice where the concern of the law is to compensate a plaintiff for injuries sustained through the carelessness of others, it and any test based on reasonableness is simply inadequate to the protection of the autonomy and dignity of the individual citizen. Comparative study shows that the doctor-centred perspective of the House of Lords in Sidaway v Bethlem Royal Hospital28 is a notably isolated one. It is not only out of line with the law of Canada29, and Australia (indeed a patient-centred test has just recently been approved by the High Court of Australia)30, but it has also been rejected by the highest courts in the Civil Law World, especially in the German speaking countries1 (pp ). The latter, in recognition both of the dangers of medical paternalism and of the myriad of variables in doctor- -patient relationships, have accepted a fully subjective standard in relation to informed consent. Thus, under German law, for example, a doctor will be liable if he fails to supply such information regarding the proposed course of treatment, including the risks attendant thereupon, as he knew or ought to have known the particular patient would have required to reach his decision. It should be obvious from the foregoing discussion that there is very little room within the legal framework for any therapeutic privilege allowing a doctor to avoid disclosure of information material
4 Journal of the Royal Society of Medicine Volume 86 November to the patient's ultimate decision, where the court accepts that to have done so might have hindered the patient's recovery or indeed have caused him to refuse outright to undergo a course oftreatment' (pp ). The successful invocation of such a therapeutic privilege involves the displacement of the patient's goals by those of the doctor and constitutes a clear and direct assault on the dignity of the former, regardless of whether the doctor has sought only to advance the individual's well-being31. While the existence of a therapeutic privilege has been generally accepted' (pp , refs), decisions from courts as geographically and historically distinct as the Supreme Court of South Australia32 and the German Federal Supreme Court33 have stressed that it must always constitute a narrow exception to the presumption in favour of disclosure. In sum, the question of liability for insufficient disclosure, as well as for treatment and diagnostic malpractice is always one of law, not to be circumvented by the exercise of medical discretion. Conclusion Comparative analysis bears out the initial claim that, with the sole and significant exception of England and Scotland, the central concern of the law in the area of medical malpractice is to give due and consistent protection to the plaintiffs rights. The standards imposed by the law, are in their rigour and objectivity, determined by nature ofjudicial decision making in any legal system which has at its core respect for the autonomy and integrity of the individual. Therefore, it is submitted that, in so far as British judges shirk from imposing appropriate standards of care on doctors, they are failing in the full discharge of their constitutionally mandated functions. In this regard, the mutual respect of one established and honoured profession for another cannot be allowed to impede the recognition and vindication of the rights of the citizen. The isolation, in many respects, of British medical law is significant in the light ofthe increasing harmonization of the liability rules of the member states of the European Community and, indeed, the continued viability of the House of Lords' isolationism in the face of Lord Denning's 'incoming tide' of European legislation is to be gravely doubted34. At this stage it is possible to identify a major source of the increasing misunderstanding between the medical and legal professions which initially prompted us to these inquiries. Beginning with their period of training or role-modelling, doctors learn to see themselves as scientist problem solvers and curers, applying acquired skills and the latest technological equipment for the benefit of their patients' (pp ). It is clear that this self-image of doctors has as its corollary a thoroughly objectified conception of the patient which as we have seen is wholly incompatible with the core values of most democratic societies. Furthermore, this notion of ever advancing medical science has been the subject of much internal scepticism35. Our wish is not however to commend a position of therapeutic nihilism, but rather to urge a critical reassessment of the assumed need to shield the medical profession, by contrast with virtually all others, from the demands of the law. It must be realized that the practice of medicine extends beyond the purely scientific, to matters so ethically and morally significant that the community, through its laws, properly and necessarily seeks to ensure that doctors are fully accountable to their patients. The situation we have outlined does not imply anything as unpalatable as the victory of one profession over another such as might justify much of the present hostility. Instead it offers doctors the opportunity to re-appraise their role vis-&-vis both their patients and the law. This reassessment should reveal the therapeutic relationship as one of partnership between doctor and patient, within which the former assists the latter in the attainment of medically desirable outcomes, while always and as a matter of priority enabling him in the full and free exercise of his fundamental rights36. It is submitted that this, in fact, offers the medical profession a role in society more complex but also more enhanced than that traditionally advanced for it by its representatives and teachers. In conclusion, as Mr Justice Kirby ofthe New South Wales Court of Appeal pointed out extrajudicially [t] he fact that the patient gave an informed consent usually will not prevent him from suing: a warm relationship with a competent and caring physician will37. Acknowledgements: The author gratefully acknowledges the valuable co-operation received from John Harrington (Research Assistant at The Free University of Berlin) and for his assistance in the preparation of this paper. References 1 Giesen D. International medical malpractice law. Tubingen, Dordrecht, Boston & London: JCB Mohr (Paul Siebeck), Martinus Nijhoff, 1988: Bolam v Friern Hospital Management Committee [ 1957] 1 WLR 582, [1957] 2 AllER 118 (QB) 3 Hunter v Hanley, 1955 SC 200, 1955 SLT Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, [1985] 1 AllER 635 (HL) 5 Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, [1985] 1 AllER 635 (per Lord Scarman at 639c-d) 6 English courts have, for example, reserved to themselves the power to critically assess the common practices of solicitors, cf. Edward Wong Finance Co Ltd v Johnson, Stokes and Master [ 1984] AC 1296, [1984] 2 WLR 36 (PC) 7 Hajgato v London Health Association, (1982) 36 OR2d 669 (HC), affd (1983) 44 OR2d 264 (CA) 8 Hajgato V London Health Association, (1982) 36 OR2d 669 (HC, per Callaghan J at 693a), affd (1983) 44 OR2d 264 (CA) 9 Whitehouse v Jordan [1981] 1 WLR 246, [1981] 1 AllER 267 (HL), affirming [1980] 1 AllER 650 (CA, per Lord Denning MR at 658) 10 Whitehouse v Jordan [1981] 1 WLR 246, [1981] 1 AllER 267 (HL), affirming [1980] 1 AllER 650 (CA) 11 Whitehouse v Jordan [1981] 1 WLR 246, [1981] 1 AllER 267 (HL, per Lord Fraser at 281b), affirming [1980] 1 AllER 650 (CA) 12 Wilsher v Essex Area Health Authority [ 1987] QB 730, [1987] 2 WLR 425, [1986] 3 AllER 801 (CA), reversed (on grounds of causation) [1988] AC 1074, [1988] 1 AllER 871 (HL) 13 Wilsher v Essex Area Health Authority [ 1987] QB 730, [1987] 2 WLR 425, [1986] 3 AllER 801 (CA, per Mustill UJ at 813 g), reversed (on grounds of causation) [1988] AC 1074, [1988] 2WLR557, [1988] laller 871 (HL) 14 Anderson v Chasney and Sisters of St Joseph (1949) 57 ManR 343, [1949] 2WWR337, [1949] 4 DLR 71 (Man CA, per Coyne JA at 85)
5 652 Journal of the Royal Society of Medicine Volume 86 November For a detailed comparative analysis of the problems relating to standards of care and causation in the area of informed consent, cf. Giesen D, Hayes J. The Patient's Right to Know - A Comparative Analysis. Anglo-AmLR 1992;21: Grundgesetz Artt. 1 and 2; cf. also BGH, 9 Dec 1958 VI ZR 203/57 BGHZ 29, 46 (49) 17 Schloendorff v Society of New York Hospital, 211 NY 125, 105 NE 92 (1914), per Cardozo J at Sidaway v Bethlem Royal Hospital [1985] AC 871, [1985] 2 WLR 480, [1985] 1 AllER 643 (HL), per Lord Scarman at 649g-h 19 Sidaway v Bethlem Royal Hospital [1985] AC 871, [1985] 2 WLR 480, [1985] 1 AllER 643 (HL, per Lord Scarman at 649g-h) 20 This state of affairs is also critically recognized by patients in Britain. It is alarming to note that fewer than half (44%) of patients are 'very confident' that their doctor knows what is wrong with them or tells them the truth. Many patients do not feel certain their doctor is discreet or a careful listener, while only 38% of patients surveyed in a recent poll feel certain their general practitioner knows what is wrong with them (The Sunday Times, 10 December 1989, at A4) 21 Sidaway v Bethlem Royal Hospital [1985] AC 871, [1985] 2 WLR 480, [1985] 1 AllER 643 (HL) 22 Reibl v Hughes (1980) 1 SCR 880, (1980) 114 DLR3d 1, (1980) 14 CCLT 1, (1980) NR 361 (SCC) 23 Sidaway v Bethlem Royal Hospital [1985] AC 871, [1985] 2 WLR 480, [1985] 1 AllER 643 (HL, Lord Scarman at 652c-e) 24 Reibl v Hughes (1980) 1 SCR 880, (1980) 114 DLR3d 1, (1980) 14 CCLT 1, (1980) NR 361 (SCC) 25 Reibl v Hughes (1980) 1 SCR 880, (1980) NR 361, (1980) 114 DLR3d 1, (1980) 14 CCLT 1 at (SCC). The New Zealand Court of Appeal has also taken a patientcentred approach to disclosure requirements, cf. Smith v Auckland Hospital Board [1965] NZLR 191 (CA), reversing [1964] NZLR 241 (SC) 26 Sidaway v Bethlem Royal Hospital [1985] AC 871, [1985]2 WLR 480, [1985] 1 AllER 643 (HL) 27 McPherson v Ellis, 305 NC 266, 287 SE2d 892, (1982), per Mitchell J at Sidaway v Bethlem Royal Hospital [1985] AC 871, [1985] 2 WLR 480, [1985] 1 AllER 643 (HL) 29 Reibl v Hughes (1980) 1 SCR 880, (1980) NR 361, (1980) 114 DLR3d 1, (1980) 14 CCLT 1 (SCC); cf. also White v Turner (1981) 31 OR2d 773, (1981) 120 DLR3d 269, (1981) 15 CCLT 81 (HC) 30 Rogers v Whittaker (1992) Aust Torts Reps , which endorses the decision of the Full Court of South Australia in F v R (1983) SASR 189 (FC) 31 Kennedy I. The Unmasking of Medicine. London: George, Allen & Unwin, 1981: F v R (1983) SASR 189 (FC), adopted by the High Court of Australia in Rogers v Whittaker (1992) Aust Torts Reps BGH, 7 Feb 1984 VI ZR 188/82 BGHZ 90,103 ( ) 34 Buchanan (James) & Co v Babco Forwarding & Shipping (UK) Ltd [1977] 2 WLR 107, [1977] 1 AllER 518 (CA, per Lord Denning MR at 552) 35 Illich I. Limits to medicine. Medical nemesis: the expropriation of health. London: Marion Boyars, Giesen D. From paternalism to self-determination to shared decision-making. Acta Juridica (Cape Town) 1988: Kirby M. Reform the law: Essays on the renewal of the Australian legal system. Melbourne: Oxford University Press, 1983:75 The complete and fully referenced version of this text is available from the author. (Accepted 12 July 1993)
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