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Medical Negligence: Non-Patient and Third Party Claims
Description: Healthcare professionals face an increasing threat of litigation from parties whom they have never met in their daily medical practice and who look nothing like the traditional patient. The so-called ‘non-patient’ may take many forms—for example, a person who is injured or killed by a mentally-ill, physically-disabled or diseased patient; a wrongfully-accused parent in a child neglect/abuse case; or a local authority which is put to the expense of caring for a negligently-treated patient. This book explores the legal principles and conundrums which arise when determining a healthcare professional’s liability in negligence towards a wide variety of non-patients.
The topic is assuming increasing legal importance and relevance, given the potential for many non-patient claims to give rise to class actions litigation, and in light of the legislative and human rights interventions, and the frequent appellate judicial consideration, which non-patient claims have attracted in recent times. The aim of the book is to have utility for both legal and medical professionals; for academics and students of comparative medical negligence and tort law; and for law reformers who may be interested in adopting certain features of statutory models elsewhere which pertain to some non-patient claims, such as those based upon ‘Good Samaritan’ conduct. Important parallels or counterpoints from other common law jurisdictions, in which courts and commentators have grappled with the legal complexities of non-patient claims, are also discussed and critically analyzed.
About the Author
Rachael Mulheron is Professor of Law at Queen Mary University of London. A former practising lawyer in Brisbane, Australia, she is also author of The Class Action in Common Law Legal Systems: A Comparative Perspective (Hart Publishing, Oxford, 2004), and The Modern Cy-près Doctrine: Applications and Implications (Routledge Cavendish Publishing, London, 2006).
Contents: Preface Table of Cases Table of Legislation List of Abbreviations List of Tables List of Figures
Notes on Mode of Citation and Style PART I: Setting the Context
1 The Book: An Overview A INTRODUCTION
B THE COVERAGE OF THE BOOK
1. Claims arising out of physical injury to the non-patient 2. Claims arising out of non-physical injury to the non-patient C WHY THE TO PIC IS IMPORTANT
1. No ‘neat and tidy’ boundaries
2. An area of increasing appellate and extra-jurisdictional consideration 3. Legislative and human rights impacts
4. The potential to give rise to group/class actions (a) The current position
(b) The winds of reform?
5. The contrast with other ‘patient-centric’ contexts
D SCENARIOS AND CLAIMS OUTSIDE THE AMBIT OF THE BOOK 1. General exclusions
2. Tri-partite scenarios involving patients as claimants
3. Non-patient claims for compensation for violation of a Convention right E CONCLUSION
2 Establishing Negligence in Novel Non-Patient Scenarios A INTRODUCTION
B THE NEGLIGENCE ACTION IN THE CONTEXT OF NON-PATIE NT CLAIMS
C THE LEGAL FRAMEWORK FOR ESTA BLISHING A DUTY OF CARE: SOME PRELIMINARY COMMENTS 1. The relevant application of the Caparo test to non-patient suits
(a) Reasonable foreseeability of harm (b) The role of proximity and public policy (c) The ‘proximity basket’
(d) Relevant policy factors
2. The assumption of responsibility/reliance test
(a) Proving an assumption of responsibility by the healthcare professional (b) Proving reliance by the non-patient
3. The incremental test in the context of non-patients
D SOME COMMON THEMES OF DIFFICULTY IN NON-PATIENT CLAIMS 1. Derivative liability versus independent liability
2. The duty of confidentiality owed to a patient 3. Omissions to act
4. The size of the non-patient class
5. How the duty of care is framed, and how the standard of care is set E CAUSATIO N CONUNDRUMS ARISING IN SOME NON-PATIENT SCENARIOS 1. Causation and omissions to act
(a) How can omissions ‘cause’ the non-patient’s harm?
(b) Pure omissions require a hypothetical scenario to prove causation 2. Long chains of causation/intervening acts
F CONCLUSION
Part II: Actual or Potential Negligence Liability for Physical Injuries to Non-Patients 3 Injuries to Non-Patients Caused by Physically-impaired or Mentally-ill Patients A INTRODUCTION
B THE POTENTIAL SCENARIOS
1. Injuries to non-patients caused by mentally-ill patients
2. Injuries to non-patients caused by physically-impaired patients
3. Injuries to non-patients by reason of medically-caused physical injury to the patient C CONSTRUCTING (AND DECONSTRUCTING) A DUTY OF CARE
1. Reasonable foreseeability of harm
2. The requisite proximity between healthcare professional and non-patient 3. The relevant policy factors in the context of dangerous patients
4. How would Tarasoff be decided in English law today? 5. Patients who kill a non-patient, and art 2 of the Convention
D THE TREAT MENT OF TARASOFF IN THE UNITED STATES : LESONS FOR ENGLAND? 1. What does a Tarasoff-type duty actually require a healthcare professional to do? 2. A matter for statute?
3. Judicial rejection of the Tarasoff principle: policy and distinctions 4. Other expansions of the Tarasoff principle
5. What responsibility (if any) should the non-patient bear? 6. Defining the trigger for the Tarasoff duty
7. The problem of proving breach in a Tarasoff scenario 8. Proving a causal link may be difficult
E CONCLUSION
4 Contraction or Inheritance of Disease by Non-Patients from Patients A INTRODUCTION
1. Introducing the two facets of disease liability 2. What the chapter does not cover
B RELEVANT DISEASE-RELATED SCENARIOS 1. Contagious or communicable diseases 2. Sexually-transmitted diseases
3. Inherited diseases and conditions C THE KEY DUTY OF CARE QUESTION 1. The weak form of duty
(a) A corresponding duty of confidentiality?
(b) The onerous task cast upon the healthcare professional (c) A fragile or unwilling patient
3. The particular problem of genetic information: the case against any duty of care at all 4. Summary: weak or robust form of duty?
D CONSTRUCTING (AND DECONSTRUCTING) A DUTY OF CARE 1. Proximity factors
2. Public policy considerations
E PARTICULAR CAUSATIO N CONUNDRUMS IN DISEASE-RELATED SCENARIOS
1. No positive act by the healthcare professional regarding the inheritance or spread of disease 2. The linear chain of causation
(a) The patient’s own conduct (b) The non-patient’s conduct (c) Infection from some other source F CONCLUSION
5 ‘Bad Samaritan’ Liability: Failing to Assist Non-Patients A INTRODUCTION
B NO COMMON LAW DUTY TO ASIST A STRANGER IN A MEDICAL EMERGENCY 1. The no-duty-to-assist rule illustrated in medical scenarios
2. Reasons for the no-duty-to-assist rule
3. The relationship between the Convention and the no-duty-to-assist rule
C EXCEPTIONAL SCENARIOS: A COMMON LAW DUTY TO ASIST STRANGERS IN MEDICAL EMERGENCIES 1. Requests for medical treatment at A&E facilities
2. An emergency request, an affirmative undertaking, and reliance 3. An emergency request, and a refusal to assist
(a) The facts and reasoning in Lowns v Woods (b) Reaction to Lowns v Woods
(c) Would English law follow Lowns v Woods?
D CRIMINAL LIABILITY FOR FAILING TO ASIST: A SNAPSHOT FROM OTHER JURISDICTIONS 1. The Northern Territory
2. The state of Vermont 3. Continental Europe
4. A ‘Bad Samaritan’ statute for England? E CAUSATIO N CONUNDRUMS
1. How does ‘doing nothing’ cause the victim’s harm?
2. Hypothetical scenario: what would the healthcare professional have done? F CONCLUSION
6 ‘Good Samaritan’ Liability: Intervening to Assist Non-Patients A INTRODUCTION
B JUDGING THE GOD SAMARITA N AT COMMON LAW 1. Some illustrative medical scenarios
2. A duty of care owed by the healthcare professional to a stranger 3. Where is the legal standard of care set for the Good Samaritan? (a) The effect of ‘battle conditions’
(b) No relevant specialism
(c) What does not suppress the standard of care 4. How is breach assessed for a Good Samaritan? (a) The Bolam test of breach
(b) The ‘making it worse’ rule (c) The gross negligence test 5. Conclusion
C GOD SAMARITA N LEGISLATIO N: ANY LESONS FOR ENGLAND? 1. The desirability of Good Samaritan legislation: law reform opinion 2. The legislative position in Australia, Canada and the United States 3. Drafting and interpretation problems under ‘Good Samaritan’ statutes (a) Bad faith/gross negligence
(b) No expectation of fee or reward (c) Can a corporation be a good Samaritan? (d) Rendering ‘assistance’
(e) Assistance rendered at a hospital/medical centre (f) Emergency medical care
(g) Level of injury
(h) A ‘voluntary’ act (the problem of a pre-existing duty to rescue/assist) (i) The effect of inebriation on the part of the rescuer, etc
(j) The type of healthcare professional protected D CONCLUSION
PART III: Actual or Potential Negligence Liability for Non-physical Injuries To Non-patients 7 Pure Economic Loss Claims by Third Parties Associated with the Patient
A INTRODUCTION
B THE POTENTIAL SCENARIOS
1. The failed sterilisation/failed abortion cases (a) Relevant cases
(b) Joint and solo claims
(c) Failed sterilisation and future sexual partners (d) Failed sterilisation and siblings
(e) Summary
2. Wrongful birth scenarios (a) Relevant cases
(b) Joint and solo claims
3. The costs of caring for a negligently-treated patient
4. Where third parties incur other financial losses brought about by a patient’s negligent treatment
C CONSTRUCTING (AND DECONSTRUCTING) A DUTY OF CARE IN PURE ECONOMIC LOS SCENARIOS 1. Reasonable foreseeability of economic injury or harm
2. The requisite proximity between healthcare professional and third party 3. Relevant policy factors
D CONCLUSION
8 Pure Psychiatric Injury Claims by Third Parties Associated with the Patient A INTRODUCTION
B SETING THE CONTEXT 1. Some preliminary points
2. A genuine or recognised psychiatric illness
C ILUSTRATIVE SCENARIOS OF NON-PATIE NT CLAIMS FOR PURE PSYCHIATRIC INJURY D CLAIMS BY NON-PATIE NTS AS PRIMARY VICTIMS AGAINST HEALTHCARE PROFESIONALS 1. Proving that the non-patient was a ‘participant’
2. Elevating an apparent secondary victim to primary victim status
3. Proving a duty of care, as a primary victim in medical negligence scenarios (a) The test of foreseeability of psychiatric injury
(b) The role of proximity
(c) No requirement that the non-patient is of ‘normal fortitude’ (d) Any requirement of shock?
(e) Public policy considerations
E CLAIMS BY NON-PATIE NTS AS SECONDARY VICTIMS AGAINST HEALTHCARE PROFESIONALS 1. Can a non-patient be both ‘primary’ and ‘secondary’ victim?
2. Proving a duty of care, as a secondary victim in medical negligence scenarios (a) Reasonable foreseeability of psychiatric harm
(b) Relationship proximity: close tie of love and affection (c) Spatial and temporal proximity
(d) Direct perception of events (e) Non-patient of ‘normal fortitude’ (f) Shock
(g) Public policy considerations
F NON-PATIE NT CLAIMS FOR PSYCHIATRIC INJURY VIA OTHER AVENUES 1. Recovery under Caparo principles
2. Negligent misstatement G CONCLUSION
9 ‘Fear-of-the-Future’ Claims by Non-Patients A INTRODUCTION
B FEAR-OF-THE-FUTURE CLAIMS IN MEDICAL SCENARIOS 1. The English position
2. Relevant case law from elsewhere
C PROVING A LEGALY -RECOGNISABLE INJURY
1. Why a ‘genuine psychiatric illness’ should be mandatory for fear-of-the-future claimants 2. Falling short: the options
(a) A consequential fear-of-the-future claim (b) Should anxiety about the future be sufficient? (c) Conclusion
D PROVING THE DUTY IN ENGLISH LAW
1. Denying fear-of-the-future claimants primary victim status 2. Recovery under the Caparo test
(a) Reasonable foreseeability of psychiatric harm
(b) Proximity between healthcare professional and non-patient (c) Public policy considerations
3. The case for rethinking fear-of-the-future claims (a) The zone-of-danger test
(b) The timing point
(c) Extending the Page v Smith principle to other scenarios (d) The role of policy
E SOME AMERICAN INSIGHTS ABOUT FEAR-OF-THE-FUTURE LITIGATION 1. Exposure to the disease-causing agent
(a) The options: actual or possible exposure (b) The arguments for and against
2. Proving that the anxiety was objectively reasonable F CONCLUSION
10 Wrongfully-Accused Third Parties in Neglect or Abuse Cases A INTRODUCTION
B THE CHILD CLAIMANT 1. The early days
(a) The no-duty viewpoint (b) The pro-duty viewpoint 2. Key interim developments
(a) The Phelps and Barrett shifts in view (b) Some interim successes in Strasbourg 3. The East Berkshire (CA) decision C THE WRONGFULY -ACUSED CLAIMANT 1. The East Berkshire (HL) decision
2. Some applications of the rule in East Berkshire (HL)
D THE IMPACT OF THE ECHR ON THE WRONGFULY -ACUSED’S LEGAL POSITION 1. The East Berkshire rule and art
2. Recovery by the wrongfully-accused under art 3. Does the common law need to change in light of art? (a) The East Berkshire (HL) obiter dicta
(b) The Lawrence v Pembrokeshire ratio E CONCLUSION
Appendix: Potential Liability to Non-Patients and Third Parties: A Synopsis for Healthcare Professionals
Bibliography Index
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