Clinical Negligence. by Janet C Kelly Midwifery Lecturer

Transcription

1 Clinical Negligence by Janet C Kelly Midwifery Lecturer 1

2 Aim To give an insight into the concept of clinical negligence and its relation to children s nursing 2

3 Objectives 1. To explain the concept and meaning of: 1. duty of care (Neighbour principle) 2. breach of duty (Bolam test) and: 3. causation in determination of establishing negligence ( but for test) 2. To examine and discuss cases 3

4 Don t panic! Negligence is difficult to prove 4

5 Scenario 5

6 Contract Law Ginger Beer What is negligence? A scam Negative concept Sword or a shield Introduction 6

7 Burden of Proof The patient must prove that the nurse: Owed them a duty of care; Breached that duty of care and; They suffered harm because of the breach caused by the nurse ALL MUST BE ESTABLISHED 7

8 Burden of Proof Rests with the CLAIMENT The CLAIMANT (i.e. client/patient ) must prove that the defendant/nurse was negligent The nurse does not have to prove that were not negligent Why? Unfair on the nurses/too arduous 8

9 So, in relation to children s nursing, the child has to prove that the children's nurses was negligent; the nurse does not have to prove that they were not negligent. 9

10 Children's nurse owed them a duty of care, The children's nurse breached that duty of care and; The child suffered because of that breach The patient must prove this NOT the nurse! 10

11 To re-emphasise to prove negligence there must be a Duty of care Breach of duty Causation 11

12 Establishing duty of care 2 ways 1) Neighbour Principle 2) 3 part test i. Reasonable foreseeability of damage ii. Is it fair, just, and reasonable to impose a duty between the party owning the duty, and the party to whom it is owned iii. A relationship of sufficient proximity' between the parties 12

13 Neighbour Principle 1. Who is your neighbour? A person directly affected by your acts Patients & other colleagues In children's nursing, who is the nurse s neighbour? The child 2. Does a nurse have to act as a good Samaritan? NMC 13

14 Applying the 3-part test 1.Reasonable foreseeability of damage This means: If a nurse performs an wrongful act on a child such as giving an incorrect dosage of a drug, then it is likely to cause some harm to that child. 14

15 Relation to children s nursing? It is reasonably foreseeable that a nurse would have a duty of care to a child if they Care for that child i.e.. dress, wash, give any medication etc. 15

16 Lord Denning (a Law Lord) stated that legal responsibility begins: [w]henever they accept a patient for treatment 16

17 2. Is it fair, just, and reasonable to impose a duty between the party owning the duty, and the party to whom it is owned This means: it is improbable to suggest that a nurse who cares for her a child does not owe that child a duty of care? Yes 17

18 3. A relationship of sufficient proximity between the parties Legal proximity not physical proximity. Ward managers Telephone advice 18

19 Breach of Duty Criterion of the reasonable skilled man Bolam v Friern Hospital Management Committee the ordinary skilled man exercising that special skill it is not, the man on the top of the Clapham omnibus 19

20 What does this mean? Is the Bolam test objective of subjective? Objective for children s nurses if caring for a child Only subjective for a lay person i.e.. in an emergency Must be like for like 20

21 Bolam & Children s nurses? the ordinary skilled children's nurses exercising that special skill the ordinary skill of his speciality or for example, the ordinary skill of a children's nurse caring for a child 21

22 the law must apply a standard which is not to cater for [the defendants ] factual ignorance of all activities How do this relate to the children s nursing? Ans. Inexperience is not a defence 22

23 Does this objective create difficulties for a newly qualified nurse? Ans. Arguably, yes 23

24 Risks foresee many risks but impossible to take precautions against every risk What risk should be discussed with the child and their parents? 24

25 Causation of fact but-for test Causation but-for the children's nurses actions, little Johnny wouldn t have suffered Causation in law. novus actus interveniens a new act intervened i.e. Johnny would have died anyway and we can t tell whether it was due to the nurses actions or Johnny s existing condition 25

26 Causation in law and remoteness of damage too remote a consequence of the breach. i.e. Johnny s injury had nothing to do with the nurse breaching their duty, it is too detached. 26

27 Don t panic Conclusion Don t be scared People will always complain Despite media coverage, negligence is difficult to prove 27

28 Shield not a sword Protect and support your colleagues Do not practice defensive nursing care Prevent rather than cure 28

29 Questions? 29