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Death following severe burns and claims of medical negligence clarified
burns 33 (2007) 123–124
available at www.sciencedirect.com
journal homepage: www.elsevier.com/locate/burns
Reply to Letter to the Editor
Death following severe burns and claims of medical negligence clarified 1.
Introduction
BR Sharma’s article [1] describes the various complications that victims of severe burns are at the risk of developing, and the causes of delayed death in this patient group. Despite the mention of ‘medical negligence’ in the title of the article, unfortunately for the reader, Sharma does not explain the fundamental principles of this very important legal concept, and only glosses over it in his concluding comments. This article seeks to address this. In his introductory paragraphs, Sharma describes that his article will focus on the various causes of delayed death from a forensic viewpoint, citing examples, of homicide, ‘dowry death’, and suicide as causes of the severe burns. In a hypothetical scenario, a victim of severe burns (in a case of alleged ‘dowry death’ or alleged homicide) has died as a result of a complication of the burn, (e.g. infection, sepsis, etc.). Sharma states that if such a case were to go to court (we assume in criminal proceedings against the alleged suspect behind the ‘dowry death’ or homicide, although this is not explicitly stated), the defence counsel may ask questions pertaining to the standard of care the patient had received. From a legal viewpoint, this does not make sense. This is because, in such a criminal case the standard of care is not in doubt, and therefore questions pertaining to it are irrelevant and would not be raised. What is being questioned is whether a criminal act has occurred or not. The only situation when the standard of care would be questioned would be if it was specifically a case of alleged negligence, and this would take place in a civil court. It is important to clarify this, as Sharma appears to be confusing two very distinct legal entities.
2.
Clinical negligence
Clinical negligence is a tort, i.e. a civil (rather than a criminal) wrong, where the patient has suffered harm as a direct result of an action (or inaction) by the defendant, (i.e. doctor). In order to prove a case of negligence the plaintiff needs to satisfy three conditions:
(1) Duty of care Firstly, the defendant (in this case, the medical doctor and/or their team) owed a duty of care to the patient. This is not in doubt as the doctor-patient relationship automatically assumes there is a duty of care. (2) Breach of duty of care Secondly, the plaintiff has to prove that there was a breach of this duty. This can be difficult to prove unless there has been a specific mistake made by the doctor. Sharma correctly summarises that the minimum standard of care a patient should receive is that which would be provided by ‘. . . a normally skillful member of the profession’. This is derived from the English case of Bolam v Friern Hospital Management Committee [2] and has subsequently come to be known as the Bolam principle or test. It was held in the judgement in Bolam (by McNair J.) that ‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that art’. Hence, as long as the care has been of an appropriate standard, and the doctor has acted in a way that other competent members of his profession would, a breach of duty of care cannot be proved. Another debatable aspect of Sharma’s hypothetical scenario is that doctors directly involved in the deceased patient’s care are being questioned and asked about standards of care. In a real court of law, these doctors may be questioned, but it is not their testimony that decides whether the standard of care was appropriate or not. In a court of law, the standard of care (if in doubt) is assessed by means of an independent expert medical witness, with application of the Bolam principle (see Loveday v Renton [3] for an example of the role of the expert witness in UK law). (3) Causation Thirdly, and probably most crucially in burns victims, is that if there was a breach in the duty of care, then the plaintiff has to prove that it was that breach that actually caused death. This is known as causation and the plaintiff
124
burns 33 (2007) 123–124
has to prove that the defendant’s action (or inaction) caused death the in fact (factual causation) and in law (legal causation). Generally, in cases of medical negligence, proving factual causation suffices. To prove factual causation, the ‘but for’ test is commonly used (see Wilsher v Essex AHA [4] for a UK example of the use of this test). The question to be asked is: ‘Would the patient have died but for the negligence of the doctor? Only if the answer to that question is ‘No’ can the doctor be held as being negligent. Victims of severe burns in India have a high mortality rate [5], as Sharma has discussed. Hence, trying to make a case for factual causation can be very difficult, because the answer to the ‘but for’ question will more-often-than-not be ‘Yes’. Effectively, the burns team can do their very best to save the life of a severely-burned patient, but ultimately, as there are so many possible causes of death in these individuals, proving the causation limb in alleged negligence is near-impossible.
3.
Summary
As Sharma correctly points out, litigation in health care is becoming increasingly common. Although summarised only briefly here, clinical negligence can be a very difficult concept to understand, but one that surgeons and other healthcare professionals should be aware of. In general terms, the burden of proving the three limbs of negligence remains with the plaintiff and all three need to be proved to successfully claim negligence.
In death following severe burns, in the absence of a specific mistake by a doctor, alleged negligence can be very difficult to prove, assuming an appropriate standard of care has been maintained. If this is the case, it should not be a cause for overconcern amongst burns surgeons and other healthcare professionals.
references
[1] Sharma BR. Delayed death in burns and the allegations of medical negligence. Burns 2006;32:269–75. [2] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. [3] Loveday v Renton [1991] Med LR 117. [4] Wilsher v Essex Area Health Authority [1988] All ER 871, HL. [5] Batra AK. Burn mortality: recent trends and sociocultural determinants in rural India. Burns 2003;29:270–5.
A.J.K. Patel* Department of Plastic Surgery, Norfolk and Norwich University Hospital, Colney Lane, Norwich NR4 7UY, United Kingdom *Tel.: +44 1603 286286; fax: +44 1603 288378 E-mail address: [email protected] 0305-4179/$30.00 # 2006 Elsevier Ltd and ISBI. All rights reserved. doi:10.1016/j.burns.2006.06.001
available at www.sciencedirect.com
journal homepage: www.elsevier.com/locate/burns
Reply to Letter to the Editor
Death following severe burns and claims of medical negligence clarified 1.
Introduction
BR Sharma’s article [1] describes the various complications that victims of severe burns are at the risk of developing, and the causes of delayed death in this patient group. Despite the mention of ‘medical negligence’ in the title of the article, unfortunately for the reader, Sharma does not explain the fundamental principles of this very important legal concept, and only glosses over it in his concluding comments. This article seeks to address this. In his introductory paragraphs, Sharma describes that his article will focus on the various causes of delayed death from a forensic viewpoint, citing examples, of homicide, ‘dowry death’, and suicide as causes of the severe burns. In a hypothetical scenario, a victim of severe burns (in a case of alleged ‘dowry death’ or alleged homicide) has died as a result of a complication of the burn, (e.g. infection, sepsis, etc.). Sharma states that if such a case were to go to court (we assume in criminal proceedings against the alleged suspect behind the ‘dowry death’ or homicide, although this is not explicitly stated), the defence counsel may ask questions pertaining to the standard of care the patient had received. From a legal viewpoint, this does not make sense. This is because, in such a criminal case the standard of care is not in doubt, and therefore questions pertaining to it are irrelevant and would not be raised. What is being questioned is whether a criminal act has occurred or not. The only situation when the standard of care would be questioned would be if it was specifically a case of alleged negligence, and this would take place in a civil court. It is important to clarify this, as Sharma appears to be confusing two very distinct legal entities.
2.
Clinical negligence
Clinical negligence is a tort, i.e. a civil (rather than a criminal) wrong, where the patient has suffered harm as a direct result of an action (or inaction) by the defendant, (i.e. doctor). In order to prove a case of negligence the plaintiff needs to satisfy three conditions:
(1) Duty of care Firstly, the defendant (in this case, the medical doctor and/or their team) owed a duty of care to the patient. This is not in doubt as the doctor-patient relationship automatically assumes there is a duty of care. (2) Breach of duty of care Secondly, the plaintiff has to prove that there was a breach of this duty. This can be difficult to prove unless there has been a specific mistake made by the doctor. Sharma correctly summarises that the minimum standard of care a patient should receive is that which would be provided by ‘. . . a normally skillful member of the profession’. This is derived from the English case of Bolam v Friern Hospital Management Committee [2] and has subsequently come to be known as the Bolam principle or test. It was held in the judgement in Bolam (by McNair J.) that ‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that art’. Hence, as long as the care has been of an appropriate standard, and the doctor has acted in a way that other competent members of his profession would, a breach of duty of care cannot be proved. Another debatable aspect of Sharma’s hypothetical scenario is that doctors directly involved in the deceased patient’s care are being questioned and asked about standards of care. In a real court of law, these doctors may be questioned, but it is not their testimony that decides whether the standard of care was appropriate or not. In a court of law, the standard of care (if in doubt) is assessed by means of an independent expert medical witness, with application of the Bolam principle (see Loveday v Renton [3] for an example of the role of the expert witness in UK law). (3) Causation Thirdly, and probably most crucially in burns victims, is that if there was a breach in the duty of care, then the plaintiff has to prove that it was that breach that actually caused death. This is known as causation and the plaintiff
124
burns 33 (2007) 123–124
has to prove that the defendant’s action (or inaction) caused death the in fact (factual causation) and in law (legal causation). Generally, in cases of medical negligence, proving factual causation suffices. To prove factual causation, the ‘but for’ test is commonly used (see Wilsher v Essex AHA [4] for a UK example of the use of this test). The question to be asked is: ‘Would the patient have died but for the negligence of the doctor? Only if the answer to that question is ‘No’ can the doctor be held as being negligent. Victims of severe burns in India have a high mortality rate [5], as Sharma has discussed. Hence, trying to make a case for factual causation can be very difficult, because the answer to the ‘but for’ question will more-often-than-not be ‘Yes’. Effectively, the burns team can do their very best to save the life of a severely-burned patient, but ultimately, as there are so many possible causes of death in these individuals, proving the causation limb in alleged negligence is near-impossible.
3.
Summary
As Sharma correctly points out, litigation in health care is becoming increasingly common. Although summarised only briefly here, clinical negligence can be a very difficult concept to understand, but one that surgeons and other healthcare professionals should be aware of. In general terms, the burden of proving the three limbs of negligence remains with the plaintiff and all three need to be proved to successfully claim negligence.
In death following severe burns, in the absence of a specific mistake by a doctor, alleged negligence can be very difficult to prove, assuming an appropriate standard of care has been maintained. If this is the case, it should not be a cause for overconcern amongst burns surgeons and other healthcare professionals.
references
[1] Sharma BR. Delayed death in burns and the allegations of medical negligence. Burns 2006;32:269–75. [2] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. [3] Loveday v Renton [1991] Med LR 117. [4] Wilsher v Essex Area Health Authority [1988] All ER 871, HL. [5] Batra AK. Burn mortality: recent trends and sociocultural determinants in rural India. Burns 2003;29:270–5.
A.J.K. Patel* Department of Plastic Surgery, Norfolk and Norwich University Hospital, Colney Lane, Norwich NR4 7UY, United Kingdom *Tel.: +44 1603 286286; fax: +44 1603 288378 E-mail address: [email protected] 0305-4179/$30.00 # 2006 Elsevier Ltd and ISBI. All rights reserved. doi:10.1016/j.burns.2006.06.001