Strict Liability in Tort Law
There are some professions in the world in which negligence or accidents are not allowed for instance in medical professions. However, some situations occur where ambiguity in the practice of healthcare professionals has been observed in terms of treating patients. Some of the ethical issues take place when these health care professionals commit some ethical offense. These issues more often take place when the medical professionals work for their personal interest and which is not at all beneficial for the patient. Each year 10-11% of admissions in hospitals take place due to adverse consequences of medical negligence. From the statistics, it can be observed that 12.6 thousand cases of medical negligence have been reported by NHS in 2020-2021 in the UK. Moreover, from these cases only 0.2% of the medical negligence claims are successful. In this paper light on the strict liability and medical negligence will be thrown. In addition to it, present reforms and well recommendations for future reforms will be highlighted.
The rule in tort law where the liability of the act committed is imposed on the party irrespective of the fault committed by that party or not in case of negligence or tortious intention. The example of strict liability can be observed in the landmark case of Rayland v. Fletcher. The rule of strict liability exists in both criminal as well as tort law. Strict liability in criminal law is related to the offences of possession crime and statutory rape whereas in the case of tort law strict liability has been applied in two cases first is related to possession of animals and second in abnormally dangerous activities. The first is related to the illegal and unlawful possession of animals or dangerous substances at the premises whereas the second one deals with dangerous practices that lay potential risk on oneself or on others in terms of property or physical being. Some of the elements upon which strict liability under this point is established include the first defendant must be engaged in dangerous activities. Second, harm to the plaintiff, third is related to the anticipated consequences of the harm due to the risk that occurred as the result of the activity. Fourth, is to determine the hazardous actions of the defendant as a factor that caused potential harm to the plaintiff. There are some cases where strict liability can be applied for instance in medical negligence cases. The case law of Rogers v. Whitaker is a good example of medical negligence as in that case Roger who is the medical professional carried out the surgery on Whitaker the patient. The consequences of the surgery were that the patient lost her eyesight because Roger did not make the patient aware of the consequences of the surgery. Moreover, if Roger has told about the consequences then Whitaker might get prepared mentally for the loss that has occurred. Thus court made the practitioner liable for the negligence because a simple warning might have been given to avoid the consequences.
Medical Negligence
Medical negligence has been defined as the failure or unconventionality of medical professionals in terms of duty of care for instance not adhering to the accepted standards of care in professional skills, knowledge due to which injury, damage or loss would occur. The term medical negligence has been described in the law of torts. This can be intentional or non-intentional for instance when the medical professional does not align to the legal duties of his or her job or is negligent or violates it or in the case when the professional does not follow the care standards as established by law respectively. Generally, the negligence aspect in the law of torts has four elements the first is the duty of care owed by the negligent party towards the party who suffers the loss. In terms of medical negligence, the plaintiff is responsible to show that the medical professional is under the duty of care. The second element relates to the breach of duty of care which the medical professional in case of medical negligence or any other authority owes. The third is causation which means the consequences of the act or the loss or damage that has been caused to the affected party is due to the breach of the duty which the professional has to take care of. And the last one is the damage or loss that took place. For instance, in case Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 [1989] AC 53; [1988] 2 All ER 238; [1987] UKHL 12; (1988) 152 LG Rev 709; (1988) 85(20) LSG 34; (1988) 138 NLJ Rep. 126; (1988) 132 SJ 700 where the court held that police is liable for the direct result of the consequences of the acts committed. However, if in case there is no injury then medical negligence will not be taken into consideration. In the case of medical negligence, there are many causes for the injury or damage that took place. In the Landmark case of medical negligence Mahon v. Osborne where the court held that a medical professional is liable for leaving the swab in the patient’s body after the operation which resulted in some complications in the patient’s body.
According to the statistics it can be observed that NHS has spent £1.8 billion in 2017-18 on negligence cases which have been doubled since 2010. The cost in 2017 -18 estimated by NHS for steeling the claims successfully was £65.1 billion which was £56.4 billion in 2015-16. Additionally, a landmark report named To Err is Human: Building a Safer Health System, stated that 98,000 death took place every year due to medical negligence in US hospitals. The errors related to the hospital were observed to be the 8th cause of death nationally and the health staff did not report the errors due to the legal liabilities. In the UK the issue of such negligence was published in the 2013 Francis Report which stated that 1200 people died due to lack of substantial care between 2005-2009. In order to solve the cases related to medical negligence, an act has been passed in 1945 named as Law Reform (Contributory Negligence) Act. Under this Act of Parliament of the United Kingdom, apportion liability for compensatory remedies have been awarded to the injured person by the judge. Under section 1(1) of this Act it has been stated that when any case of medical negligence occurs one party suffers the damage due to the act caused by the party at fault and partly by the fault of another party then the claim for the damages will not be called off only due to the fault of the person suffered, however, the damages recoverable will be minimised to the extent which the court thinks just and reasonable in respect to the share of the responsibility of both the parties. Moreover, in 2019, NHS regulations named as Clinical Negligence Scheme for General Practice (CNSGP) has been established. This scheme is responsible to cover clinical negligence liability that occurs in the general practice during the incidence that took place after 2019. The payout for the damages in the medical negligence case rages from £1,000 to millions of pounds depending upon the case scenario.
Statistics and Reforms
However, according to NHS resolutions, £50,000 is the average payout for medical negligence. The reform related to medical negligence is necessary due to some inconsistencies in law that relate to the medical error as many mistakes have been recognized in terms of culpability of the wrongdoer. Certain concepts have been taken into consideration for instance duties of care in such cases answers of the doctors are affirmative generally. However, there are certain situations where ambiguity might occur. In such cases it is the duty of the senior doctor to determine the efficiency of the doctor dealing with the case and whether he or she has discharged the duty reasonably. Certain steps must be undergone to meet the standard of care by the doctors and upon that the damages must be awarded to the party at fault. Moreover, reasonableness can be incorporated efficiently while examining the case in order to provide an appropriate remedy for the damage. The cases related to medical negligence are solved by providing compensation for the damage caused but sometimes it might be difficult to prove the harm caused. Thus sometimes it seems a very unreliable way to compensate for the harm that occurred so apart from awarding the compensation the threat of litigation should be severe on the defaulter. Besides this, Government must take the responsibility to invest more in providing safety to the people. Moreover, the compensation provided to the affected party must be in the right proportion, in addition to the cost related to any healthcare facility or rehabilitation and for the loss of any incapacity that arises due to medical negligence. No blame culture is hard to adopt while it is acceptable to adopt a just culture where blaming is appropriate in moral situations. The senior medical professional of an institute must be prosecuted as prosecuting junior doctors will not solve the problem infect it will create the scene for same error in future also.
Conclusion
In the end, it can be concluded that healthcare professionals require a high standard of responsibilities as they deal with the life of a person. Moreover, strict liability is important to deal with such cases of medical accidents but it must be used wisely. Additionally, the statutes related to the strict liability need to be clearly worded. The elements of medical negligence have to be used appropriately so that patients do not suffer harm.
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