Negligence per se does not constitute serious professional misconduct, although a serious failure to meet the necessary standards would be capable of doing so. The behaviour in question, however, has to demonstrate gross neglect, amounting to culpable carelessness or indifference to consequences.
Failure to visit a patient who requires treatment is capable of amounting to negligence.
This is a difficult area, as a practitioner may have on occasion to distinguish between the spurious request for a visit and the genuinely needed one. Charges of serious professional misconduct of this sort frequently specify more than one instance in which the practitioner has failed to respond to a patient’s request for a visit. Erasure from the register may be appropriate in such circumstances.
The improper delegation of duties, which should be performed by a registered practitioner, may constitute serious professional misconduct. This does not exclude the allowing of medical students and nurses to perform tasks, which fall within the scope of their competence, but the practitioner should still provide proper supervision.
The abuse by a practitioner of his power to prescribe drugs may amount to serious professional misconduct. Over-prescribing to addicts falls into this category.
The patient who suffers injury as the result of medical negligence may raise an action either in contract or in delict against the person or body responsible for the injury. In the case of a private patient both such actions are available; in the case of a patient treated under the national health service (the overwhelming majority of patients) the absence of a contractual link between doctor and patient means that any action must be one in delict. The differences between contractual and delictual actions in such cases are, however, of little significance.
A patient may proceed against the practitioner causing the injury or against the practitioner’s employees. If the injury is caused by a general practitioner, who will not be an employee of a Health Board, he alone will be answerable for his delicts, although liability may be imposed on a partnership in the event of a partner not meeting his obligations in this context.
Health Boards are vicariously liable for the delicts of practitioners employed by them: this applies both to junior staff and to consultants. Where the negligent act is one performed by a Health Board employee, the board and the employee’s insurers will in practice share the burden of damages. Since the carrying of insurance against such claims is a condition of employment within the national health service, it is unlikely that the burden of damages will ever fall on a single body.
The starting point of any discussion of the standard of care expected of the medical practitioner must be Lord Clyde’s widely cited dictum in Hunter v Hanley. In this case it was stated that the
‘true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care’
This dictum has been cited with approval in a number of cases in other jurisdictions; in England the House of Lords in the Whitehouse and Maynard cases approved it. There has been some discussion, however, of the significance of Lord Clyde’s judgement: does the use of the term ‘ordinary’ mean that the test to be applied is a pure custom test, namely that of accepting the practice of the medical profession as the ultimate standard, or does it refer rather to a test of reasonableness which can be applied by the court itself? If the latter interpretation is preferred, then adherence to the customary practices of the medical profession may on occasion constitute negligence. Ordinary skill, then, in this context is no different from reasonable skill.
There is ample authority for the view that the courts themselves will ultimately determine whether a professional practice is acceptable. Opinion, both judicial and academic, is firmly in favour of the proposition that the court is the ultimate judge of what is the appropriate standard of care, although it is admittedly the case that in medical cases, as in other technical areas, the court will find it necessary to seek guidance from experts. Whatever view is taken of the significance of Hunter v Hanley, it is nevertheless the case that as a consequence of the judgement in this case it is important for the pursuer to aver that no doctor of ordinary skill in the position of the defender would have acted in the way in which the defender acted.
Custom, of course, is not always unambiguous, and there may be cases in which there is more than one course of action, which would find endorsement within the profession. This problem was directly addressed in Hunter v Hanley, where Lord Clyde said:
‘To establish liability by a doctor where departure from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care’
In circumstances where different opinions exist as to the acceptability of a course of conduct, if a doctor can show that the course he followed was one, which has the backing of a body of respectable opinion within the profession, then liability will not be imposed merely because the treatment may be disapproved of by a section of medical opinion.
The failure of a doctor correctly to diagnose an illness will not necessarily amount to negligence. The standard to be applied in this area, as in other areas of practice, is that of the doctor of reasonable skill. If such a doctor would not have incorrectly diagnosed, then a conclusion of negligence may be drawn. Failure to use routine diagnostic aids may amount to negligence, as may an error of judgement if it is one, which no reasonably competent doctor would have made. This latter proposition has been specifically enunciated for English law in the House of Lords decision in Whitehouse v Jordon, and it is submitted that Scots law is the same in this area. A doctor is thus given leeway for a certain degree of error provided that his error is not excessive according to the standard described above.
A doctor must demonstrate that standard of care expected of a practitioner of ordinary skill; clearly, however, there will be cases in which the practitioner will not have had the experience of others in his field. The holding out of oneself as competent justifies the imposition of liability in cases of professional negligence, the adage imperitia culpae adnumeratur being applied in these circumstances. A recently qualified doctor, therefore, will not be able to claim inexperience as a defence to an allegation of negligence.
The position of inexperienced doctors was discussed in the English Wilsher case, in which a distinction was made between the concept of a hospital rank and that of a post within a medical unit. From the judgement in this case it would seem that English law defines the standard of care according to the nature of the post; a doctor occupying a consultant’s post, or performing work normally performed by a consultant, will therefore be judged according to the standard expected of a consultant in that position. A junior doctor occupying a post normally occupied by a practitioner of a particular rank would be expected, then, to show that degree of competence normally shown by a doctor in that post. A registrar in a senior registrar’s post may therefore find himself being judged according to the standards of a senior registrar. A more experienced doctor occupying a post which would normally be occupied by one of lesser experience might, however, be judged according to the standard of a practitioner of his experience rather than according to a lower standard.
This point has not yet been decided in Scots law, though it is possible that the courts may find the approach adopted in Wilsher attractive. The Wilsher principle, however, would probably not be applicable in general practice, where the hierarchical structures of hospital medicine are inapplicable.
The requirement that the pursuer establish that the defender’s negligence caused his injury might be particularly difficult in cases in which the issues are scientifically complex. Many medical conditions are multi-factorial and consequently it may be difficult to determine whether the defender’s act was the specific cause of the pursuer’s injury. Such a problem of causation arose in the controversial case of McGhee v National Coal Board in which the pursuer, in respect of whom the defenders were in breach of duty to provide washing facilities, developed dermatitis. This breach of duty was a possible explanation of the dermatitis but it was also possible that other causes contributed to the development of the condition. The House of Lords held that where a breach of duty materially increases the risk of an injury, the subsequent occurrence of that injury can be regarded as having been caused by that breach even if other factors might have played a causal role. The Court of Appeal in England has subsequently endorsed this interpretation of the decision in the Wilsher case.
In an attempt to ease the burden of proof on the pursuer, the English case of Clark v MacLennan suggests that departure from an established practice designed to prevent a particular occurrence may result in the imposition of liability. It has been suggested, however, that the requirement in Scotland that the pursuer show that no doctor of ordinary skill would have done what the defender did excludes the application of the rule here.
A pursuer might look to the principle of res ipsa loquitur if the incident was one, which would not normally occur without negligence, but there may be difficulties in applying this theory in the context of intrinsically hazardous activities, such as medical procedures. In practice, once an injury has been shown to have been caused by medical treatment, although the burden of proof still rests on the pursuer, the defender will have to take care to produce evidence of the acceptability of his conduct.
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