Manslaughter and the doctor - conviction and sentence.

Abstract

A conviction for manslaughter is a professional disaster for the doctor, likely to herald the end of his career in medicine, and a possible prison sentence. A finding of civil negligence is bad enough; a verdict of criminal negligence is truly tragic. There are not many prosecutions for doctor manslaughter, because jurors respect doctors, recognise the inherent risks in medicine and are reluctant to convict. However, prosecutions are now more common than before, especially since 1990 or thereabouts (‘‘Doctors charged with manslaughter in the course of medical practice 1795–2005, a literature review’’, RE Ferner and SE McDowell, J R Soc Med 2006 June 99(6) 309–314 – mistakes, slips and violations). A fatal medical mishap may arise in almost any situation, though some areas of practice are more vulnerable than others, such as obstetrics and gynaecology and anaesthetics. The examples from practice are legion: Wrong diagnosis. Failure to refer the patient to hospital. Wrong drug prescribed or administered. Not listening to the patient, or to members of the medical team. Delay in attending to the patient. Failure to check symptoms. Failure to obtain a scan, or quickly enough, or misreading the scan. A one-off lamentable incident. A series of failures, systematic lapses. The standard to be applied is the expected or accepted practice normally exercised by a reasonably competent doctor, following the guidance from the GMC and the Royal Colleges, and the law set down by the judges. This standard is inherently and inevitably somewhat vague and uncertain, as so much depends upon the particular factual circumstances of each case. A mistake or error of judgment will not suffice. The test is gross negligence, more than ordinary negligence, beyond mere inadvertence. The doctor was reckless in his attention to the patient. His conduct was thoroughly reprehensible, very bad. Jurors feel shocked, even outraged. R v Adomako [1995] 1 AC 171. A locum anaesthetist was involved in a detached retina operation. He failed to notice for over 4min that a tube had become dislodged, thus depriving the patient of oxygen. The chest was not moving, the patient was turning blue and the dials on the machine stopped. The patient suffered a cardiac arrest and died. Even when the machine alarm went off, it did not occur to the doctor that there had been a disconnection. The doctor was in breach of his duty of care, namely to exercise reasonable professional skill. Manslaughter. R v Adomako [1995] 1 AC 171, 181–182. Two junior doctors were responsible for the postoperative care of the patient recovering from knee surgery. The patient began to show classic symptoms of serious illness, namely temperature, pulse and blood pressure, and the nurses expressed concern, yet the doctors did nothing and did not refer to the consultant. The patient developed infection of the wound, which went undiagnosed, and died from toxic shock syndrome. Manslaughter. R v Misra and Srivastava [2005] 1 Cr App R 328, [2004] EWCA Crim 2375. After a routine knee operation which went off satisfactorily, the patient was transferred to a consultant surgeon because he complained of abdominal pain. A perforated bowel, a potentially life-threatening condition, was suspected, but the doctor, a colorectal surgeon, ignored the patient for 24 h, did not prescribe antibiotics and delayed in obtaining and examining a scan. The risks grew over time, and the patient died. By multiple failures, the doctor had not measured up to accepted and expected standards. Manslaughter. R v Sellu, Central Criminal Court, 5 November 2013. The patient had fluid overload and low blood pressure and did not respond to antibiotics. The doctor failed to investigate abdominal pain, failed to detect a blocked urethra, failed to ascertain renal failure from tests, failed to detect sepsis and failed to drain the infection. He failed to care properly for the patient. The patient died from pulmonary oedema. The records were poor, and, worse, the doctor tampered with them. Manslaughter. R v Garg [2012] EWCA Crim 2520, (2013) 2 Cr App R (S) 30.