Medical negligence: legal theory and surgical practice

Abstract

Our medical decisions and actions must be made in accordance with accepted standards of care. Surgeons should have a working knowledge of the law so that they can practice in a reasonable, responsible and rational manner. The key areas of law for surgeons are (i) duty of care, (ii) causation and (iii) consent. The standard of care is the objective, legal test by which duty of care is assessed. The tests of breach of duty of care are objective. The primary test for doctors is the Bolam test which states that if your actions (or omissions) would be the usual practice of a reasonable or responsible group of doctors then you satisfy the test. If breach of duty of care is established, the claimant must demonstrate that the breach caused some harm. The test is but-for causation, i.e. if it is established that but-for the breach the bad outcome would not have occurred the claimant will be able to link the breach to the damage done. Consent for surgery is a specific duty of care for doctors. Consent is based upon the principle of autonomy. Consent must be to all material risks of surgery. For surgical procedures, consent must be in writing.