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On January 11, 2024, the United Kingdom (U.K.) Supreme Court rendered its judgment in Paul v Royal Wolverhampton NHS Trust, restricting the circumstances in which "secondary victims" can successfully claim for damages in clinical negligence cases. This ruling has provided welcome clarity regarding the scope of negligently caused "pure" psychiatric illness claims, but the judgment may well prove controversial. In this article, I trace the facts and opinion from the majority and also discuss an important dissenting opinion. I then reflect on what the ruling means for psychiatric illness claims by secondary victims, and more broadly on the implications for clinical negligence law. I suggest that while much-needed clarity has been injected in this area of the law, it is difficult, reading the majority of the Supreme Court's emphasis on the restricted scope of a medical practitioner's duty, to envision a scenario in which secondary victim could ever succeed in a clinical negligence context. [ABSTRACT FROM AUTHOR]

The General Medical Council (GMC) instructs doctors to act 'reasonably' in obtaining consent from patients. However, the GMC does not explain what it means to be reasonable: it is left to doctors to figure out the substance of this instruction. The GMC relies on the Supreme Court's judgment in Montgomery v Lanarkshire Health Board; and it can be assumed that the judges' idea of reasonability is adopted. The aim of this paper is to flesh out this idea of reasonability. This idea is commonly personified as the audience that has to be satisfied by the doctor's justification for offering, or withholding, certain treatments and related information. In case law, this audience shifted from a reasonable doctor to a 'reasonable person in the patient's position'; and Montgomery expands the audience to include 'particular' patients, too. Senior judges have clarified that the reasonable person is a normative ideal, and not a sociological construct; but they do not set out the characteristics of this ideal. John Rawls has conceived the reasonable person-ideal as one that pursues fair terms of co-operation with other members of society. An alternative ideal can be inferred from the feminist ethic of care. However, the reasonable patient from Montgomery does not align with either theoretical ideal; but, instead, is an entirely rational being. Such a conception conflicts with both real-life constraints on rationality and the doctor's duty to care for the patient, and it challenges the practice of medicine. [ABSTRACT FROM AUTHOR]

This paper considers the current situation regarding medicolegal risks in temporomandibular joint surgery from three perspectives: the law, the patient, and the surgeon. The law relating to successful claims of clinical negligence requires that a cause-and-effect relationship is demonstrated by the claimant. Complications are considered in the light of recent research on their stratification in other fields of surgery. Surgeons become repeat offenders rarely. They display certain common characteristics which are discussed in this paper. [ABSTRACT FROM AUTHOR]

Medicolegal issues in gynaecology pose unique challenges to the healthcare system. This article explores the complex landscape of legal considerations in gynaecological practice, including informed consent, medical negligence, patient autonomy, and ethical dilemmas. Gynaecological procedures such as reproductive interventions and pelvic surgeries often involve sensitive and intimate matters, making the medicolegal framework critical for protecting patient rights and ensuring good-quality care. Through a comprehensive review of relevant literature and case studies, this article highlights the need for interdisciplinary collaboration among healthcare providers, legal professionals, and policymakers to navigate these complex issues. It also highlights the importance of clear guidelines, education and training to promote ethical decision-making, accountability and avoidance of litigation. By addressing medicolegal challenges in gynaecology, the healthcare system will be able to uphold patient welfare, safeguard the rights of patients and maintain the highest standards of care. [ABSTRACT FROM AUTHOR]

Over the decades we have witnessed legal cases influencing the government to develop the statutory duty of candour (DoC) in the medical profession, a duty that for a long time existed only in tort (civil) law. The purpose of the statutory DoC is understandingly important. For the public it simply reinforces an ethical duty already enforced by most professional regulators. For the medical profession, it is rather complex in ways that the courts can interpret and use, leaving uncertain legal ramifications for doctors. In this paper, we explore the law in relevance with DoC in the United Kingdom, and the limitations and controversies surrounding it for a better clarification and understanding. For organizations, we advocate the avoidance of bureaucracy in the DoC process and consideration of human factors before a regulatory response that avoids the fear of penalties, litigation and defensive practice among doctors undermining the development of culture of DoC. For the legal profession, is it time to change their outlook, where they are most able to support the process of DoC and avoid the use of open disclosures to support a case of clinical negligence and its legal ramifications for doctors? [ABSTRACT FROM AUTHOR]

In Montgomery v Lanarkshire Health Board, the Supreme Court declared that patients are entitled to choose among all available treatments. But, who decides what is 'available'? Doctors rely upon evidence-based medicine (EBM) – a complex epistemology that generates normative recommendations – for determining treatment availability. EBM is required to be applied through exercise of the treating doctor's clinical judgement, which inescapably involves some value judgements. EBM attempts to accommodate patient values through shared decision-making (SDM). However, SDM remains contingent upon EBM for its starting points, and this contingency provokes a charge of epistemic injustice because it privileges the treating doctor's judgement over conflicting views. Such a charge was implicit in Montgomery. The Court responded by adopting a strategy that retains reliance on clinical judgement, yet attempts to restrict the treating doctor's privilege by admitting other professional views. This strategy permits the induction of a three-step test for availability of treatment, which is theoretically appealing but challenges the practical organisation of the medical profession. [ABSTRACT FROM AUTHOR]

This article examines the United Kingdom Supreme Court decision in Whittington Hospital NHS Trust v XX [2020] UKSC 14. The case centred on whether damages could be awarded for the cost of a commercial surrogacy arrangement in California, following clinical negligence by the hospital that left the plaintiff unable to carry her own children. After examination of this case, the article outlines and compares the United Kingdom and Australian surrogacy laws. It then discusses how a similar case would be decided in Australia and argues that the result would be the same in some Australian States. It also discusses the concept of reproductive autonomy and the importance of this concept when considering cases involving the loss of fertility. [ABSTRACT FROM AUTHOR]

This study reviewed the medical reports of 25 patients (21 female and 4 male) who were found to have been treated inappropriately by temporomandibular joint (TMJ) surgery. One of more Breaches of Duty and resultant harms (Causation) were identified for each of the patients in this series. Their ages ranged from 18–64 (mean 36.2, median 35) years. A narrative review of free text data revealed six main patterns of Breach of Duty which were to do with consent, inadequate pre-surgical imaging, injection of botulinum toxin into jaw muscles, TMJ arthroplasty, management of TMJ dislocation and subluxation, and failure or reluctance to request second opinions. Harms identified included surgical damage to the TMJ, facial nerve dysfunction, and social isolation. One sum claimed was in excess of £1 million. [ABSTRACT FROM AUTHOR]

Established in 1982, Action against Medical Accidents (AvMA)—originally named Action for Victims of Medical Accidents—was effectively the first charity in Britain dedicated to 'patient safety'. This article provides a historical analysis of the origins and work of AvMA, situating its background in the medical negligence 'crisis' of the 1970s and 1980s, growing consumerism in healthcare, and the significant barriers to justice patients confronted following a clinical incident. It also explores AvMA's impacts on evolving attitudes towards patient harm and safety in the NHS. The article asserts that in addition to supporting patients and campaigning for changes in legal procedures, AvMA played an instrumental role in raising the political profile of adverse health events ('medical accidents'). By supporting claimant solicitors and increasing their chances of legal success, AvMA contributed to the rising tide of negligence claims, which incentivised NHS trusts and health authorities to introduce clinical risk management (CRM). By 2000, CRM was being framed as part of a broader mission to improve quality and safety in healthcare, and AvMA was recognised as a key stakeholder in the new patient safety agenda. [ABSTRACT FROM AUTHOR]

Clinical negligence claims for pressure injuries against the NHS continue to rise annually. This article will discuss the number of claims and financial costs to the NHS, together with the legal processes involved. Issues such as duty of care, breach of duty and harm and how these are interpreted in law will be explained, together with advice on how to avoid a potential negligence claim in the future. The author will discuss scenarios specific to primary care, such as non-adherence to pressure injury prevention strategies and how to manage these effectively. The importance of accurate, concise, relevant and factual documentation will also be discussed in detail. [ABSTRACT FROM AUTHOR]

Aim: To investigate the extent and impact of litigation on the UK physiotherapy profession., Design: An online cross-sectional questionnaire survey design was used. The survey was open to all qualified physiotherapists who have practiced in the UK, from any speciality, of any grade and from any setting including NHS, non-NHS, and private practice., Results: 688 respondents completed the survey (96% CI). All UK nations were represented. 73% were female, 44% were qualified >20 Years. Most worked in the NHS (74%) and worked in a neuromusculoskeletal setting (62%). 10% of respondents had been involved in litigation. 128 claims were reported with some respondents being involved in more than 1 case. Litigation was a highly stressful experience for those who experienced it and was a source of concern for many others. The personal impact was stress (76%) and worry and anxiety (67%). The most common professional impact was defensive practice (68%). Most respondents incorrectly identified who should provide their legal support. 46% were not satisfied with the support received. Most (77%) reported that litigation training should be included in pre-registration, as well as postgraduate (68%) programs., Conclusion: This is the first UK survey that has investigated the experiences of litigation on the UK physiotherapy profession. Ten percent of physiotherapists in our survey had been involved in litigation. Litigation impacted physiotherapists' physical and mental wellbeing and their clinical practice. Improved support, both emotional and legal is required. Clinical negligence training should be included in pre-registration and postgraduate programs. CONTRIBUTION OF THE PAPER., (Copyright © 2024 The Authors. Published by Elsevier Ltd.. All rights reserved.)

The legal profession depends on expert witnesses, and indeed the first time an English Court relied on an expert medical witness was in the 14th century. Asking a specialist to comment on the standard of professional practice expected in their own specialty was first introduced in a 1767 case [1]. This article draws on 20 years of experience in medicolegal work relating to paediatric respiratory medicine. It highlights some of the legal principles that lie behind an expert opinion and what constitutes clinical negligence. It aims to set out lessons for medicolegal experts and clinicians, but also offers some advice to lawyers and parents. Finally, it illustrates some issues that arise more commonly in paediatric respiratory practice. [ABSTRACT FROM AUTHOR]

Surveys were sent to 68 American state medical boards, including territories of the United States, inquiring how they handle—or will handle—cases involving disclosure and apology after medical errors. Surveys were not sent to specialty boards. Thirty-eight state medical boards (n = 38, 56%) responded to the survey, with 31 completing the survey (46% completion rate) and seven boards (n = 7) providing explanations for nonparticipation and other thoughts; 30 boards did not respond in any manner. Boards that completed the survey indicated that disclosure and apology and other positive post-event behavior by physicians are likely to be viewed favorably and disclosing physicians will not be easy targets for disciplinary measures, though boards also stressed they view each case on the merits and patient safety is their top priority. Recommendations are made for policy makers and other stakeholders. [ABSTRACT FROM AUTHOR]

In Samantha Thimmaya v Lancashire NHS Trust v Mr Firas Jamal (Thimmaya), Mr Jamil, an expert witness acting for the Claimant in a clinical negligence action, was ordered to pay part of the Defendant's costs, amounting to over £88,000. The court determined that his conduct as an expert had been 'improper, unreasonable, or negligent', thus enabling the court to make a third-party costs order against him. Although the case must have raised alarm amongst medical experts, the facts of the case show that it concerned a very unusual set of circumstances. Additionally, the more recent case of Walker and Walker v Tui UK Ltd v Dr Timothy Leigh (Walker), also discussed below, suggests that the threshold to be applied in determining whether costs orders should be made against experts will be higher than that applied in Thimmaya. Both cases serve as a reminder of the duties owed by experts to the court. [ABSTRACT FROM AUTHOR]

Introduction: Cauda equina syndrome (CES) is a condition where early identification and treatment is crucial to avoid potentially devastating effects. There is a high number of litigation cases linked with CES given it is a relatively rare condition. This scoping review protocol proposes to explore the extent and process of CES litigation in UK healthcare context cases amongst UK physiotherapists. Methods and analysis: The methodological framework recommended by Arksey and O'Malley, Levac et al. and the Joanna Briggs Institute will be used throughout this review to aid reporting and transparency. A patient and public involvement (PPI) group meeting was convened at the beginning of the review process in order to provide knowledge exchange to inform the search strategy and propose resources to be used during the scoping review. Two reviewers will independently review the literature in order to apply the inclusion and exclusion criteria. Once the studies to be included have been identified, the data from these studies will be extracted and charted. Results will show quantitative data of the studies included in the review and a narrative synthesis of the literature. Dissemination: This scoping review will evaluate the existing knowledge relating to CES and litigation and will map the key concepts around this topic. Results will be disseminated to practitioners and policy‐makers through peer‐reviewed publications, conferences, reports and social media. This method may prove helpful to others who are investigating extent and processes relating to medicolegal cases involving healthcare practitioners. Registration: The current paper is registered with OSF registries (DOI 10.17605/OSF.IO/MP6Y3). [ABSTRACT FROM AUTHOR]

The first problem is whether a duty of care exists requires judicial clarification (F Page, 'Manslaughter: Manslaughter by an Illegal Act - Gross Negligence Manslaughter' [2005] Crim LR 389 at 391-92). Keywords: Duty of care; manslaughter by gross negligence; clinical negligence; mens rea; recklessness EN Duty of care manslaughter by gross negligence clinical negligence mens rea recklessness 409 412 4 09/28/21 20211001 NES 211001 The facts were straightforward - Dr Mak Wan Ling (the "appellant") was accused of having injected a contaminated blood product into her patient during a beauty treatment known as "CIK/AI therapy", causing the death of the patient. Objectivity v Subjectivity - Gross Negligence Manslaughter Revisited: HKSAR v Mak Wan Ling (2019) 22 HKCFAR 321. [Extracted from the article]

Paramedic independent prescribing is in its infancy and there are limitations to the range of medicines that can be prescribed when compared with other professions undertaking independent prescribing. Medication and prescribing errors are common events within the NHS in England, resulting in a substantial number of litigation and fitness-to-practise proceedings against other professions in relation to prescribing and medicines management. It is foreseeable that paramedic independent prescribers could also find themselves subject to legal action. This article considers a fictitious scenario where a patient suffers harm as a result of a prescribing decision and the legal implications for the prescriber. [ABSTRACT FROM AUTHOR]

Artificial intelligence (AI) systems advising healthcare professionals will be widely introduced into healthcare settings within the next 5–10 years. This paper considers how this will sit with tort/negligence based legal approaches to compensation for medical error. It argues that the introduction of AI systems will provide an additional argument pointing towards no-fault compensation as the better legal solution to compensation for medical error in modern health care systems. The paper falls into four parts. The first part rehearses the main arguments for and against no-fault compensation. The second explains why it is likely that AI systems will be widely introduced. The third part analyses why it is difficult to fit AI systems into fault-based compensation systems while the final part suggests how no-fault compensation could provide a possible solution to such challenges. [ABSTRACT FROM AUTHOR]

Surgical swabs are routinely used by obstetricians and midwives to absorb blood during caesarean sections or perineal repairs following a vaginal birth. On rare occasions, a surgical swab can be left behind by mistake inside the patient's body. When an incident involving a retained swab occurs, this is declared a 'never event'. Although a rare occurrence, a retained surgical swab is the source of high morbidity (infection, pain, secondary postpartum haemorrhage and psychological harm). It is also important to mention the financial burden and the legal implications affecting healthcare providers worldwide. Over the years, several strategies have been implemented in clinical practice to reduce such risk. However, none of these seem to provide a definitive answer. Having offered a brief overview of the evidence surrounding retained surgical swabs, this article presents an innovative approach based on creating a physical barrier by introducing an anchoring point linking the swabs together, making it physically impossible to leave one behind. At present, these modified swabs are undergoing development and testing. [ABSTRACT FROM AUTHOR]

Purpose: Groin hernia repair is the most frequently performed general surgical operation in the UK. Complications from laparoscopic and open repair are well recognised; however, potential differences are yet to be considered in relation to litigation. Methods: Administrative data were obtained and analysed from the NHS Litigation Authority for inguinal hernia-related claims from 1995 to 2016. Claims identified as using an open or laparoscopic approach were compared. Results: 880 claims were made, 760 had been settled. 88 laparoscopic and 241 open procedures were identified; 65% laparoscopic and 63% open hernia claims were found to be in favour of the claimant. Payouts totalled to 4.1GBP/4.8EUR/5.3USD million and 9.4GBP/11.0EUR/12.1USD million for laparoscopic (mean 82,824GBP/96,579EUR/106,453USD) and open (mean 66,796GBP/77,892EUR/85,852USD) approaches, respectively. The most common reasons for claim initiation were visceral/vascular injury (54%) in the laparoscopic group, and testicular complications or chronic pain (35%) in the open group. Additional procedures were necessary for 48% and 44% of laparoscopic and open claims, respectively. The highest average payouts were associated with visceral injury, (laparoscopic 116,482GBP/135,820EUR/149,715USD; open 199,103GBP/232,246EUR/255,905USD) and vascular injury (laparoscopic 88,624GBP/103,369EUR/113,892USD; open 64,460GBP/75,163EUR/82,870USD). Additional procedures resulted in an average payout of 93,352GBP/108,917EUR/120,008USD (laparoscopic) and 60,408GBP/70,506EUR/77,657USD (open). The most common additional procedures were corrective visceral/vascular repairs, orchidectomy and recurrent hernia repair. Conclusions: The rate of litigation for clinical negligence in inguinal hernia surgery in the UK is increasing. Whilst there has been a recent increase in laparoscopic hernia repair claims, the volume and burden of claims related to open procedures remain greater. [ABSTRACT FROM AUTHOR]

Over the decades we have witnessed legal cases influencing the government to develop the statutory duty of candour (DoC) in the medical profession. A duty that for a long time existed only in tort (civil) law. The purpose of the statutory DoC is understandingly important. For the public it simply reinforces an ethical duty already enforced by most professional regulators. For the medical profession, it is rather complex in ways that the courts can interpret and use it leaving uncertain legal ramifications for doctors. In this chapter, we explore the law in relevance with DoC in the United Kingdom, and the limitations and controversies around it for a better clarification and understanding. For organizations, we advocate the avoidance of bureaucracy in the DoC process and consideration of human factors before a regulatory response that avoids the fear of penalties, litigation and defensive practice among doctors undermining the development of culture of DoC. For the legal profession, is it time to change their outlook, where they are most able to support process of DoC and avoid the use of open disclosures to support a case of clinical negligence and its legal ramifications for doctors? [ABSTRACT FROM AUTHOR]

We consider various types of litigation that may follow the Covid-19 pandemic, including: claims against National Health Service (NHS) Trusts by patients who have contracted the coronavirus (or by their bereaved families), claims by NHS staff against their employer for a failure to provide any or adequate personal protective equipment or testing, commercial claims arising from the procurement of medical supplies, the potential liabilities to those who suffer adverse reactions to any vaccine and the guidance issued by the regulators in relation to subsequent disciplinary action. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

Reporting on adverse events is essential to create a culture of safety, which focuses on protecting doctors and patients from medical errors. We present a fatal case of Streptococcus C pharyngitis in a 56-year-old man. The clinical course and the results of additional diagnostics and autopsy showed that sepsis followed by multiple organ failure was the ultimate cause of death. The clinical course appeared fatal due to a chain of adverse events, including errors made by the physicians caring for the patient for 10 days.

The treatment of sepsis is a significant cause of clinical negligence. Determining causation is a key aspect to successful litigation. We have reviewed the use of medical evidence in establishing legal causation. [ABSTRACT FROM AUTHOR]

The General Medical Council clearly states that a doctor must offer help when off-duty, if an emergency arises. However, despite an English doctor’s professional duty to offer their assistance, this duty does not exist as a legal duty. Therefore, a doctor would not be held negligent for failing to offer help, outside of their clinical setting. This article will critically analyse the reasons behind this lack of legal duty, comparing the law to other jurisdictions. [ABSTRACT FROM AUTHOR]

In this case concerning a hypoxic birth injury, the High Court awarded damages for Post Traumatic Stress Disorder to two "secondary victims" (the mother and grandmother) caused by the events in questions. This is one of only very few reported clinical negligence cases where such claims have succeeded. [ABSTRACT FROM AUTHOR]

Objective To explore different models of clinical–insurer engagement around maternity safety and to understand how state insurers could and should engage with clinical staff to improve outcomes and reduce harm. Design Semi-structured interviews and focus groups were conducted with senior representatives from state insurers. Transcripts were analysed to identify different models of engagement. Themes were also elicited from the transcripts. A further one-day focus group allowed for clarification and elaboration of these themes. Participants Senior representatives from state insurers in England, Scotland, Wales, Republic of Ireland, Sweden and Victoria, Australia. Results A variety of clinical engagement activities were undertaken by the insurers. These included training on claims and risk management, hospital site visits, facilitating multi-professional network meetings and working with clinical experts to develop best practice recommendations. Some insurers engaged with frontline clinical staff through collaborative patient safety programmes. The themes (identity and size, data and research, incentivising improvement and system integration) were important for considering the role of state insurers within health systems and how insurers could engage with clinical teams. Conclusions This study identified different examples of clinical–insurer engagement. Whilst this was encouraging, the relationships between insurers and clinical teams could be developed further. Insurers and clinical staff could still collaborate more closely and work together in improving patient outcomes. Whilst not specifically their domain, insurers do have a role in patient safety. Closer clinical collaboration may strengthen this contribution. [ABSTRACT FROM AUTHOR]

Williams v Bermuda Hospitals Board concerned questions of causation arising from a hospital board's negligent delay in failing to diagnose and treat a patient expeditiously. In this case, pus from a ruptured appendix began to develop before the hospital board's negligent delay in providing proper treatment by performing surgery to remove the appendix. This delay also contributed to the accumulation of sepsis, which eventually caused injury to the patient's heart and lungs. The purpose of the appeal was to determine whether it was possible in principle to substantiate a causal link by proving that a breach of duty of care made a material contribution to the damage suffered in cases where the factors contributing to the indivisible damage operated successively, as opposed to simultaneously. The Privy Council decided that Bonnington Castings v Wardlaw, the principal authority governing material contribution to damage, was not limited to cases in which the timing of the origin of the contributory causes is simultaneous. Whilst this makes Williams a patient-oriented decision, and commendable as a matter of principle, no indication is given as to whether there will be any difference in how damages are awarded in cases with multiple defendants versus cases with single defendant. Further, Williams' obiter comments on Bailey v Ministry of Defence and the relationship between the 'but for' test for and the material contribution test is vague, when a more definitive conclusion could have bolstered the pro-patient decision in this case. [ABSTRACT FROM AUTHOR]

This short article provides an overview of the legal system in the UK with a focus upon the civil law of negligence and its relevance for nursing practice. Further discussion is provided on the definition of negligence, duty of care, breach of duty and damage. Specific focus is given to the scope of nursing related to surgical dermatological nursing practice and the principle of vicarious liability. Duty of candour is also addressed. Some recommendations and suggestions on good practice are provided to assist in reducing the risk of exposure to claims of negligence. [ABSTRACT FROM AUTHOR]