Duty of care and medical negligence

Abstract

The Department of Health estimates that 10% of hospital inpatient admissions result in an adverse event, but ,2% of claims for medical negligence handled by the NHS Litigation Authority result in court action. However, both the number of claims for negligence and the sums involved in settlement are increasing and so it is important that anaesthetists understand the factors leading to a possible civil claim for negligence and the potentially considerably more serious charge of criminal negligence, both of which can arise from failures to uphold a suitable standard of care. This article does not consider claims of negligence in relation to consent which has been considered in a separate article in the journal. The principle of ‘duty of care’ was established by Donoghue v Stevenson in 1932 wherein Lord Atkin identified that there was a general duty to take reasonable care to avoid forseeable injury to a ‘neighbour’. In this case, a woman in Paisley drank ginger beer from a bottle until she found a decomposing snail at the bottom. As a result the woman became ill and a case was brought against the ginger beer manufacturers for compensation. Lord Atkin determined that the company producing the ginger beer had been negligent in failing to ensure the woman’s safety during the production process, even though the ginger beer was not bought by the woman but by her friend. It was established that a general duty of care was owed to a neighbour; a neighbour was defined as ‘someone who may be reasonably contemplated as closely and directly affected by an act’. In this case, it did not matter who had bought the ginger beer, since it was reasonable to consider that anyone who drank the beer would have suffered the same consequences and could therefore be considered under the ‘neighbour’ principle.