As doctors can be held liable for negligent acts or omissions they may have committed, which result in injury/death to their patients, so too can hospitals, through the negligence of their employees.
In laying a claim against a hospital for being negligent, it is important to know what has to be proved—the elements to be established and satisfied.
This was stated by attorney-at-law Kamal Ramkarran in an address to doctors and other medical professionals at a continuing medical education seminar held by the Medical Council of Guyana three Sundays ago at the National Cultural Centre.
Ramkarran, a former member of the medical council began his discourse on this aspect of negligence by highlighting the concept of vicarious liability, through which employers are held liable for the negligent acts/omission of their employees who may be found to have a duty of care to patients.
By liable he explained that if a private doctor’s receptionist is found to have a duty of care in a negligence case brought against her and the doctor because he is her employer, they will both be responsible to pay the money awarded as compensation.
He said that there is no apportionment of that money and, in reality, the doctor or the hospital has assets and the receptionist has none so, at the end of the case, the patient will come for the doctor’s property or the hospital’s property to satisfy his judgment rather than pursuing the receptionist.
Illustrating the point in which a receptionist had a duty of care, the lawyer referenced a 2018 case from the United Kingdom in which a man who was assaulted and suffered a blow to his head went to the A&E department of a hospital on a busy night. He was told by the receptionist that he would be seen in about four or five hours.
In reality, a triage nurse would have examined him in about 30 minutes and she would have been likely to decide that because of his head injury, he should have been seen much earlier. He waited for about 19 minutes and then went home where his condition worsened.
By the time he underwent surgery to remove a hematoma, he had suffered partial paralysis which would have been avoided had he been treated promptly.
The man lost his case in the High Court and Court of Appeal but the Supreme Court, the highest court, unanimously held that the hospital owed a duty to the man to provide accurate information about waiting times and that that duty had been breached, causing the man’s brain damage.
Ramkarran pointed out that the reason for this was that the hospital had designated the receptionist with being the first point of contact with persons seeking medical assistance and, as a consequence, with the responsibility of providing accurate information as to the availability of that medical assistance.
He reasoned that while the receptionist could not be expected to give medical advice or information, she was expected to take reasonable care not to provide misleading advice as to the availability of medical assistance.
So, although he had not been examined or spoken to by a doctor, the hospital was found liable for negligence.
Ramkarran noted that this is equally applicable to private clinics run by one doctor as it is to hospitals—both public and private.
Ramkarran also discussed a doctor’s duty to third parties—where negligence to his patients has an effect on a third person.
He explained that in such a case, the patient can sue the doctor for compensation as well as the third party, for the loss/injury they would have suffered because of the doctor’s negligence towards the patient.
Such circumstances he said, might arise in four distinct situations: first; where a woman suffers what is called a wrongful pregnancy; secondly, where a third party suffers a psychiatric injury as a result of the negligent treatment of a patient; thirdly, where there is a failure to prevent the patient from causing harm; and fourthly, where a negligently conducted medical examination, including negligently analyzing test results causes harm to a third party.
Citing the case of McFarlene v Tayside Health Board [2000] 2 AC 59, Ramkarran explained the wrongful pregnancy situation. In that case, a couple who had four children decided that the husband should have a vasectomy in order to limit the size of their family. Six months after the vasectomy, the consultant surgeon advised the husband that his sperm counts were negative and that he could dispense with contraceptives.
Relying on that advice, he did so and, eighteen months later, his wife became pregnant. The couple sought compensation for the costs of rearing the child and for the pain and suffering of the wife, who was the third party affected by the doctor’s negligence, in carrying and giving birth to the child
While the court ruled that the parents could not recover the costs of rearing a healthy child, they also ruled that the wife was entitled to be compensated for the pain, suffering and inconvenience of pregnancy and childbirth as well as for medical expenses, clothing and loss of earnings associated with the pregnancy.
In the second situation of psychiatric injury, doctors may be ordered to compensate third parties who suffer psychiatric injuries caused by witnessing someone else’s negligent treatment.
To establish this, four elements must be proved—that the third party must have a close relationship with the patient, he or she must be close in time and space to the incident, they must witness it or its immediate aftermath (with his or her unaided senses, so you can’t see a video recording or be told about it on the phone) and, fourthly, he or she must suffer a recognizable psychiatric illness as a result.
To explain, Ramkarran referenced the case of North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 in which a newborn baby died as a result of medical negligence.
The baby’s mother had witnessed his distressing final thirty-six hours and the English Court of Appeal felt that the circumstances were sufficient for her to be compensated although the primary victim of the negligence was her baby and not her.
In another case from 2017—RE v Calderdale & Huddersfield NHS Foundation Trust, a baby’s grandmother who was present at delivery suffered post-traumatic stress disorder after witnessing his negligent and traumatic delivery and believing him to be dead.
The Judge felt that this event was sufficiently sudden, shocking and objectively horrifying for her to be compensated as a third party affected by negligence.
Ramkarran noted that finding a doctor to have a duty of care to a third party in respect of a psychiatric injury is very rare and the scene witnessed by the third party has to be horrifying by objective standards for the court to determine that it was an assault on the senses of the third party.
Ramkarran said that the third situation of failing to prevent a patient from causing harm to third parties can arise where patients who are negligently advised by a doctor pose a risk to others.
He said an example is where a doctor, who knows a patient is unfit to drive, fails to advise that patient not to drive. If the doctor fails to properly advise the patient, it is foreseeable that a third party could be injured as a result.
Another example he proffered is where persons with infectious diseases pose a risk to third parties if their condition is not diagnosed due to negligence or, if due to negligence, they are not properly advised or treated to prevent harm to others as a result of the infection.
The lawyer explained that because this third category depends on an omission or failure to act rather than being because of negligent treatment by the doctor, in order to succeed in this category, the third party must prove three things.
First, that the harm suffered was foreseeable, that there was a proximate relationship between the doctor and third party, (which means that the third party was a person who was in a special or exceptional or distinctive category of risk from the treatment of the doctor as opposed to just being a member of the wider public) and thirdly, that the imposition of a duty on the doctor to the third party by the court is fair, just and reasonable.
