Medical Mistake Claims - Simpson Millar LLP

Jail for a Surgeon's Mistake?

Author: Neil Fearn  Bullet  Dated: 02/09/2014

No surgery is risk free, and before undergoing surgery, every patient should fully understand the risks and the potential complications.

Being aware of the inherent risks of surgery does not protect you against mistakes made by the surgeon during the procedure itself. But will criminal proceedings and the threat of jail lead to a reduction in surgical mistakes?

Your Life in Their Hands

A senior doctor that has been convicted and jailed for the mismanagement of a surgical procedure has received support from scores of surgeons and doctors. Many have written to Home Secretary, Theresa May begging for clemency on his behalf. You would be right to ask why they would do such a thing when a man has lost his life.

Isn't it irresponsible to let this surgeon off the hook?

Doctors and surgeons perform a very difficult role, they literally have people's lives in their hands. When they get the decision right, they can save lives, but the wrong decision could result in devastation. Could the threat of a prison sentence deter surgeons from performing more complicated and pioneering procedures?

Alternatives may not be Better

According to a 2012 NHS workforce census, there were 19,116 surgeons currently practicing in England for a population which far exceeds that.

At some point in their life, most people will have surgery, if more problems arise such as the one mentioned in this article, the number in England may become fewer due to a backlash. Medical professionals may become reluctant to recommend a form of surgery in case it does not go to plan, and they end up on the receiving end of the law.

Alternatives may not always be the best substitute for a surgical procedure, but the use of alternative methods to surgery may increase if there is a culture of fear surrounding surgery.

The Law As it Stands

The legal principles surrounding medical negligence are more complex than those in other areas of law because of the complex nature of the subject. One of the most important legal principles that affects medical negligence claims is known as the "Bolam Test" dating back to a case in 1957. This states that if a responsible body of professionals in a similar field would have done the same thing, then the standard of care you received would have been correct even if some harm had come to you.

Over the years, the test has received a lot of criticism because it means that all someone needs to do to verify their actions is to find another doctor that would have done the same thing.

The "Bolitho Test", from 1997, follows the Bolam Test. It states the court should not accept a 'reasonable', 'respectable' or 'responsible' argument unless it stood up to logical analysis. However, if expert medical evidence could show that the treatment was 'reasonable, respectable and responsible' it would be rare for a court to find it was otherwise.

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