Negligence Claims Research Articles

Chronic groin pain following open inguinal hernia repair: has consenting practice improved?

Chronic groin pain following inguinal hernia surgery is a common and potentially debilitating complication, and yet patients are infrequently informed of this risk. This leaves surgeons open to negligence claims, especially given recent changes to case law, which for the first time highlighted the need for a more patient-centred approach to risk disclosure. We investigated how these changes have influenced our consenting practice with respect to the disclosure of this risk. We compared how often surgeons discussed the risk of chronic groin pain with adults undergoing elective open unilateral inguinal hernia mesh repairs in 2019 and 2009. The first 50 patients in each of these two years were retrospectively compared. Discussions during the initial consultation and on the day of surgery were assessed by reviewing clinic letters, medical notes and consent forms. The risk of chronic pain was discussed with significantly more patients in 2019 than in 2009 (96% v 54%, p<0.0001). Most of these discussions occurred on the day of surgery (92% v 54%, p<0.0001). Only a few patients had these discussions during their initial consultation (18% v 4%, p<0.025). Discussing the risk of chronic groin pain has improved significantly over the past 10 years. However, these discussions occur mostly on the day of surgery, which gives patients very little time to weigh up the risk. This potentially invalidates the consent they give for surgery. Patients should be given an opportunity to discuss their operative risks in advance of their operation.

The Law and Challenges to Access Medical Record for Medical Negligence Claims in Malaysia

Medical records are one of the most essential documents for a plaintiff in medical negligence claims if the plaintiff is the patient. Medical records are used for ‘discovery’ in preliminary proceedings to establish the case which is the cause of action as well as to show negligence and causation during the trial. Medical records provide important information to determine whether a medical practitioner was negligent or not. But patients have no authority to access and keep medical records. The parties who have the authority to keep and access medical records are the medical practitioners (who provide the medical records) and the hospital or clinic, or any other healthcare institute. They have the legal obligation to protect and keep the confidentiality of the medical records. Therefore, plaintiffs must first obtain a court order prior to obtaining their medical records. However, the decision made in the case of Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2015] 1 CLJ 825 has changed the law pertaining to obtaining a court order for access to medical records. This paper considers medical records for medical negligence claims in court as well as the law governing medical records and the challenges and obstacles faced in obtaining medical records from the perspective of the law on confidentiality. Finally, it also discusses the decision made in the case of Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2015] 1 CLJ 825 which according to the court parties who wish to access medical records for medical negligence claims no longer require an order of a court to do so.

The Curious Case of Cramblett v. Midwest Sperm Bank: Centering a Political Ontology of Race and Disability for Liberatory Thought

ABSTRACT This article explores a recent legal case wherein the category of “wrongful birth”—a negligence claim against a physician who failed to adequately inform a pregnant individual of the likelihood of their child having a congenital disorder, birth defect, or other disability—was used to describe the birth of a black/mixed-race child. In this case, a white woman was inseminated and impregnated with the sperm of a black man instead of the white man's sperm she had purchased. In examining this case, I argue for the liberatory import of placing race and disability in a comparative frame that relies on a method of juxtaposition and centers a political ontology of race and disability.

Covid-19 and medical negligence litigation: Immunity for healthcare professionals?

This article considers the recent calls to provide doctors with immunity from medical negligence claims arising out of the Covid-19 pandemic. It provides a critical analysis as to the conditions that would need to be considered for such a policy as well as exploring the wider ramifications.

Clinical negligence claims following the COVID-19 pandemic.

John Tingle, Lecturer in Law, Birmingham Law School, University of Birmingham, discusses how the Courts may view clinical negligence claims brought by families who have lost loved ones during the pandemic.

Assessment of malpractice litigation following spine surgery

Medical litigation in spine surgery is a serious concern today, with a high volume of clinical negligence claims, substantial financial cost and significant burden, who is threatening the future of this surgery.&#x0D; Classical spinal surgery should be performed with very well documented indication, in order to improve the expected results, with clear aims: decompression of the neural elements of the spine from tightness, stabilizing the spine to protect the nerves, eliminate the pain resulting from abnormal loading from the different movements.&#x0D; Spinal surgery today means a wide analysis, understanding and realization of spinal decompression, also osteosynthesis and fusions, using high-performance gestures, with increased addressability especially in the elderly, for a varied pathology, which involves anaesthetic-surgical risks, complications. In such a context, surgical damage does not necessarily result from an error or from surgical misconduct and the surgeon is not always responsible for the damage in the absence of a proven fault in the legal sense.&#x0D; The paper aims to briefly review the main problems, but also useful recommendations to meet various challenges, expectations, maintaining the quality of life of each patient, reducing risks of getting sued, also to increase the odds of a successful defence.&#x0D; In conclusion: education, vigilance, improved patient-safety strategies, investigation, implementation and sharing of lessons learned from litigation claims remain important components of spinal surgeons training, to reduce future cases of negligence and improve patient care, quality of life, as many of the cases of successful litigation had a preventable cause.

Court to hear clinical negligence case after remote trial is deemed "undesirable".

The first clinical negligence trial to go to the High Court since the covid-19 lockdown closed the courts in the UK will start on 8 June. The trial had been due to take place by video conferencing, but University Hospital Southampton NHS Foundation Trust applied for it to be adjourned to a later date, arguing that a remote hearing would be unfair. One of the clinicians whose treatment is at issue in the negligence claim maintained that he would be unable to give as full an account of his actions by video link as at a court hearing, …

Legal Discontinuities — Opening Remarks

The law inevitably draws lines, but why do the lines have such dramatic effects? Being a bit too incautious can turn what would have been lawful conduct into a million dollar claim for negligence. Being a bit unreasonable in assessing danger can turn what would have been justified self-defense into murder with a life sentence. Many have the intuition that as we gradually cross some boundary from permissible conduct into tortious or criminal conduct, the legal consequences should also change gradually. Yet laws often have all-or-nothing effects even when they could be gradual. To better understand these and related phenomena, we convened an international group of scholars with diverse interests in the law, spanning property, tax, torts, crimes, contracts, and more, for the Legal Discontinuities Conference. The event was held at Tel Aviv University Law School’s Cegla Center for Interdisciplinary Research of the Law from December 29-30, 2019. Contributing papers will be published in a special open access issue of Theoretical Inquiries in Law. This short paper is adapted from my opening conference remarks.

Artificial intelligence in clinical decision-making: Rethinking liability

This article theorises, within the context of the law of England and Wales, the potential outcomes in negligence claims against clinicians and software development companies (SDCs) by patients injured due to AI system (AIS) use with human clinical supervision. Currently, a clinician will likely shoulder liability via a negligence claim for allowing defects in an AIS’s outputs to reach patients. We question if this is ‘fair, just and reasonable’ to clinical users: we argue that a duty of care to patients ought to be recognised on the part of SDCs as well as clinicians. As an alternative to negligence claims, we propose ‘risk pooling’ which utilises insurance. Here, a fairer construct of shared responsibility for AIS use could be created between the clinician and the SDC; thus, allowing a rapid mechanism of compensation to injured patients via insurance.

Duty, indemnity and immunity during the COVID-19 pandemic.

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers arrangements for indemnifying nurses returning to practice in the pandemic, and whether nurses might be given immunity from negligence claims.

The cost of consent: why healthcare providers must be compliant with the Montgomery principles.

The cost of clinical negligence in the UK has continued to rise despite no increase in claims numbers from 2016 to 2019. In the US, medical malpractice claim rates have fallen each year since 2001 and the payout rate has stabilized. In Germany, malpractice claim rates for spinal surgery fell yearly from 2012 to 2017, despite the number of spinal operations increasing. In Australia, public healthcare claim rates were largely static from 2008 to 2013, but private claims rose marginally. The cost of claims rose during the period. UK and Australian trends are therefore out of alignment with other international comparisons. Many of the claims in orthopaedics occur as a result of "failure to warn", i.e. lack of adequately documented and appropriate consent. The UK and USA have similar rates (26% and 24% respectively), but in Germany the rate is 14% and in Australia only 2%. This paper considers the drivers for the increased cost of clinical negligence claims in the UK compared to the USA, Germany and Australia, from a spinal and orthopaedic point of view, with a focus on "failure to warn" and lack of compliance with the principles established in February 2015 in the Supreme Court in the case of Montgomery v Lanarkshire Health Board. The article provides a description of the prevailing medicolegal situation in the UK and also calculates, from publicly available data, the cost to the public purse of the failure to comply with the principles established. It shows that compliance with the Montgomery principles would have an immediate and lasting positive impact on the sums paid by NHS Resolution to settle negligence cases in a way that has already been established in the USA. Cite this article: Bone Joint J 2020;102-B(5):550-555.

FRM17 decision allows offshore detainee cases to fight on in the Federal Court

On 28 August 2019, the Full Federal Court of Australia handed down its decision in four test cases selected by the Court as representative of over 50 cases brought on behalf of asylum seekers on Nauru and Papua New Guinea against the Minister for Home Affairs (the test cases). The test cases confirmed that the Federal Court does have the jurisdiction to hear negligence claims brought by immigration transferees offshore, but that the jurisdiction of the Federal Court has limits.

Anatomy across the pond; how anatomy is taught and in how many hours in the United Kingdom.

It has been suggested that a deficit in junior clinicians anatomical knowledge is causing harm to patients, evidenced by a rise in surgical negligence legal claims resulting from a lack of knowledge of underlying anatomy. This study set out to examine the state of anatomy in the UK and Ireland in 2019 and how it has changed over the past two decades. The study used questions previously published by Heylings (2002), with some additions to reflect recent innovations in anatomy teaching. The project was awarded ethical approval (ER/BSMS3867/8) and a survey comprising 53 questions was hosted on the University of Sussex Qualtrics platform. Heads of Anatomy in the UK and Ireland (n=40) were asked to complete the survey and a 100% response rate was obtained. The results showed that anatomy is a defined ‘group’ or department in 62% of institutions. For medical teaching, 38% of institutions follow a systems‐based curriculum and 35% a hybrid curriculum. The number of medical student being taught in a cohort ranged from 71–450. The time dedicated to gross anatomy teaching ranged from 34–145h. Only one institution teaches anatomy by dissection only, 12 using prosection only, and 17 use a combination of the two. Five institutions do not use human cadaveric material. In 2018, five new medical schools were created in the UK, each following an existing institution’s curriculum. At the time of the survey, were yet to enroll students and therefore, were not included in the study. In comparison to data gathered therein 1999 (Heylings, 2002) when 160h was the mean teaching time for traditional regional anatomy courses and 116h for system based courses, the results of the current study reveal a considerable reduction in anatomy teaching hours. Is this reduction responsible for the increase in surgical negligence claims?

Claim of Professional Negligence in Absence of Explicit Physician–Patient Relationship

In Warren v. Dinter , 926 N.W.2d 370 (Minn. 2019), the Supreme Court of Minnesota held that a physician–patient relationship is not a necessary element for a professional negligence claim in all cases, and a professional duty may be created when it is reasonably foreseeable that the patient may

INCIDENCE OF ACUTE CORONARY SYNDROME AFTER TRAUMATIC BRAIN INJURY IN INTENSIVE CARE UNIT (ASSOCIATED FACTORS AND MORTALITY): A RETROSPECTIVE STUDY

Background: Although the association between traumatic brain injury (TBI) and cardiac diseases were reported previously, the incidence of acute coronary syndrome (ACS) (per se) was not fully elucidated. The aim of this work was to estimate the incidence of ACS, associated factors and mortality during the first week of admission in patients with TBI admitted to intensive care unit (ICU). Patients and Methods: This retrospective study included all adult patients with TBI admitted to ICU (Al-Azhar University Hospital, Damietta), during (2016-2018). Patients with a history of cardiac co-morbidity, those who had associated chest, abdominal trauma, or bone fractures, were excluded. The collected data included: patient demographics, ICU clinical and laboratory data and history of chronic diseases. In additions, serum Troponin I, Glasco coma scale (GCS), electrocardiogram (ECG), echocardiographic examination, and patients’ outcome were recorded. patients were divided into two groups according to the development of ACS the first included those who developed ACS and the second included those who did not develop ACS. Results: Of the 90 patients with TBI admitted to ICU, ACS was developed in (30.0%), age was (68.7±6.4), chronic diseases (40.7%). GCS was significantly lower in ACS group. Tachycardia, hypertension and hypernatremia was documented at admission. RBCs, hemoglobin and platelet count were significantly decreased while INR and PTT were elevated in ACS at admission and at 7th day. ECG changes in ACS group were in the form of ST elevation, ST depression and hyperacute T wave. Significant elevated troponin and abnormal echocardiographic findings were found in ACS group. Finally, significant increased mortality during the first week of admission in ACS compared to negative group (29.6% vs 3.2% respectively). Conclusions: These results documented the development of ACS after TBI and associated with older age, increased chronic disease, severity of trauma, hemodynamic instability, coagulopathy and increased ICU mortality. Search for ACS and identification of high‑risk patients after TBI are crucial to prevent cardiac morbidity and mortality. Otherwise, physicians could be exposed to medical negligence claims.

Privacy Losses as Wrongful Gains

Perhaps, nowhere has the pace of technology placed more pressure on the law than in the area of data privacy. Huge data breaches fill our headlines. Companies often violate their own privacy policies by selling customer data, or by using the information in ways that fall outside their policy. Yet, even when there is indisputable misconduct, the law generally does not hold these companies accountable. That is because traditional legal claims are poorly suited for handling privacy losses. Contract claims fail when privacy policies are not considered contractual obligations. Misrepresentation claims cannot succeed when customers never read and rely on those policies. The economic loss rule thwarts many negligence claims. But undoubtedly the thorniest obstacle is that privacy harms are often not considered cognizable injuries under many common legal theories. Tort, contract, and constitutional standing doctrine all demand some form of concrete injury, but privacy injuries are often too intangible or risk-based to qualify. Thus, no matter how blatantly a company violates its privacy obligations or how porous a company’s data security is, the victims’ lawsuit is often perfunctorily dismissed. While many commentators have persuasively argued that we should modify these doctrines to better accommodate privacy harms, this article takes a different tack and revives an old, neglected common law approach to address these modern ills. Privacy victims should use the oft-misunderstood law of restitution and unjust enrichment to disgorge the wrongful gains companies earn when they break their privacy policies. This theory also will allow victims to recover any wrongful savings companies retain when they fail to take reasonable data security precautions and instead use deficient cybersecurity. Because unjust enrichment focuses on the defendant’s wrongful gain and not the plaintiff’s injury, this theory can avoid many of the pitfalls associated with the more conventional causes of actions privacy plaintiffs typically raise.

Clinical negligence: Understanding why things go wrong.

Clinical negligence claims are on the rise, with lawyers often playing a leading part in ascertaining what went wrong, why it went wrong and what lessons can be learned. I present a schema which may help lawyers better understand what goes wrong in clinical negligence cases.

Vedanta Resources Plc and Another v. Lungowe and Others

In Vedanta v. Lungowe, the United Kingdom Supreme Court determined that civil claims for negligence brought by Zambian claimants against an English parent company (Vedanta) and its Zambian subsidiary (Konkola Copper Mines plc (KCM)) for damages experienced in Zambia can proceed in English courts. While framed as a domestic tort law case, the decision is significant for international efforts aimed at holding businesses accountable for their “negative impacts” on human rights. Writing for a unanimous Court, Lord Briggs's judgment hinged narrowly on the right of victims to access substantial justice. More broadly, Lord Briggs suggested that parent companies that hold themselves out in public disclosures as overseeing the human rights, environmental, social, or labor standards employed by their subsidiaries assume a duty of care to those harmed by the subsidiary. This suggestion has the potential to transform current corporate approaches to human rights due diligence and accountability.

An evaluation of medical negligence cases: Role and contribution of medico-legal autopsy

Autopsy based forensic evaluations are critical to the final outcome of medical negligence cases. It is imperative that autopsy surgeon is aware of clinical issues and should plan autopsy dissection with respect to those issues. This study is aimed to determine the role of medico-legal autopsy in the ascertainment, assessment and evaluation of the medical negligence cases. In this retrospective study, total 61 medico-legal autopsy cases involving medical negligence claims were studied. Cases were classified according to type of health care facility, type of medical or surgical specialty as well as discrepancies between clinical and autopsy diagnosis and type of medical error involved. Surgical branches (82%) are more involved in alleged medical negligence cases than medical branches (18%). 33% cases are of Obstetrics & Gynecology followed by Anesthesia (29%), and Surgery (20%). In majority of cases (65%), small private hospitals with less than 100 beds (type C) are involved. Act of commission was found in 26% cases. Act of omission was claimed in 7%. In 18% cases there was a failure to diagnose major disease in pre-anesthetic and pre-operative check up. In 8% cases wrong diagnosis was claimed. In one case, nursing staff has given wrong drug to the child led to the sudden death. In 13% cases death occurred due to known complications. Present work indicates that early post-mortem examination in alleged medical negligence cases provides new and unrecognized information of great assistance in determining the cause of death.

Risk management in oral surgery.

Complex oral surgery procedures are occurring more commonly in primary care, performed by both specialist oral surgeons and non-specialists/tier 2 providers. Practitioners in the UK are working in an increasingly litigious environment which is often at the forefront of a practitioner's mind and prevention of complaints and claims of negligence is vital in maintaining confidence in our practise. In this ever-increasing litigious environment practitioners need to be aware of the risks associated with oral surgery procedures and have to be able to assess and treatment plan patients effectively and safely. Consent is critical to all procedures, and the recent Montgomery case reinforces the importance of this process which must be individual to each patient. It is vital that as practitioners we are aware of our scope of practice and are able to fully inform patients of the risks and benefits of treatment. Practitioners must know their limits and when to refer on to secondary care. This paper discusses the essentials of risk management in oral surgery and describes key stages in the management of patients undergoing an oral surgery procedure. Initial assessment of the patient, which includes medical and dental history will be discussed followed by investigations to support the clinical diagnosis. Once diagnosis has been confirmed, the process of obtaining consent and the legal implications of this are discussed. Finally, a discussion on the appropriate evidence-based management of common complications which may arise when performing oral surgery will complete the paper.