Medical negligence - Key cases and application of legislation. (September 2020)

• Record Type: Journal Article
• Authors: Cheluvappa, Rajkumar; Selvendran, Selwyn
• Is Part Of: Annals of medicine and surgery. Volume 57(2020)
• Page Start: 205
• Page End: 211
• Publication Date: 2020-09
• Subjects: Adverse event -- Australia -- Law -- Medication error -- Midwife -- Negligence -- Nurse -- Nursing -- Tort; ABS Australian Bureau of Statistics -- AIHW Australian Institute of Health and Welfare -- CLA Civil Liability Act 2002 (NSW) -- UK United Kingdom -- NSW New South Wales; Surgery -- Periodicals; Medicine -- Periodicals; General Surgery -- Periodicals; Education, Medical -- Periodicals; Periodicals; 617
• DOI: 10.1016/j.amsu.2020.07.017
• Languages: English
• ISSNs: 2049-0801

Abstract

Abstract: Background: Law entails precedent-based common law and parliamentary-legislation-based statutory law. Australian courts recognise civil wrongs, called torts. The most common tort worldwide is negligence. The first aim of the paper is to educate the Australian nursing community about medicolegal issues, statutes, important cases, legal applications, and negligence statistics pertaining to clinical practice. The second aim is to determine whether medicolegal negligence claim-numbers are commensurate with recorded statistics on adverse events. The third aim is to determine and discuss preventative approaches to minimise culpability. Materials and methods: Relevant searches were done using Pubmed, Google Scholar, and Austlii. Data, negligence legislation, key cases, and law processes were collated and analysed based on court decision citations, legal impact, and relationships between legislation application and case law. Although New South Wales legislation was used throughout this paper, parallel statutes exist across Australian jurisdictions. Results: The basics of the civil tort offence of negligence are explained with step-by-step explanations. Key judgments and application of legislation in key medical negligence cases are discussed. Relevant medicolegal issues and negligence statistics are discussed. The civil tort of negligence is elaborately discussed, step-by-step, with relevant Common Law and legislation relevant to NSW. The watershed cases of Hadiza Bawa-Garba and Nurse Amaro are summarised with the ramifications for doctors and nurses. Expedient strategies to assist doctors and nurses in minimising unlawful action are discussed. Conclusions: Adverse medical events are high in Australia. However, new claims are decreasing. Negligence claim-numbers are disproportionate to statistics on adverse events. The Hadiza Bawa-Garba and Nurse Amaro cases have opened a legal can of worms with manifold negative ramifications for the nursing community. Highlights: (1) For a negligent breach of expected standard of care: (i) Inexperience is irrelevant (ii) All procedural risks must be divulged prior to patient consent (Roger v Whitaker principle) (iii) No liability if a standard of care is one of many non-consensus standards widely accepted by peers (2) Key medicolegal issues and negligence statistics: (i) High prevalence of adverse events and medication errors (Australia) (ii) Decreasing negligence claims are disproportionate to increasing numbers of recorded adverse events and medication errors