Medical negligence - Key cases and application of legislation

Rajkumar Cheluvappa; Selwyn Selvendran

doi:10.1016/j.amsu.2020.07.017

Medical negligence - Key cases and application of legislation

Ann Med Surg (Lond). 2020 Jul 17:57:205-211. doi: 10.1016/j.amsu.2020.07.017. eCollection 2020 Sep.

Authors

Rajkumar Cheluvappa¹, Selwyn Selvendran²

Affiliations

¹ Australian Catholic University, Watson, ACT, 2602, Australia.
² Department of Surgery, St George Hospital, Kogarah, NSW, 2217, Australia.

Abstract

Background: Law entails precedent-based common law and parliamentary-legislation-based statutory law. Australian courts recognise civil wrongs, called torts. The most common tort worldwide is negligence. The first aim of the paper is to educate the Australian nursing community about medicolegal issues, statutes, important cases, legal applications, and negligence statistics pertaining to clinical practice. The second aim is to determine whether medicolegal negligence claim-numbers are commensurate with recorded statistics on adverse events. The third aim is to determine and discuss preventative approaches to minimise culpability.

Materials and methods: Relevant searches were done using Pubmed, Google Scholar, and Austlii. Data, negligence legislation, key cases, and law processes were collated and analysed based on court decision citations, legal impact, and relationships between legislation application and case law. Although New South Wales legislation was used throughout this paper, parallel statutes exist across Australian jurisdictions.

Results: The basics of the civil tort offence of negligence are explained with step-by-step explanations. Key judgments and application of legislation in key medical negligence cases are discussed. Relevant medicolegal issues and negligence statistics are discussed. The civil tort of negligence is elaborately discussed, step-by-step, with relevant Common Law and legislation relevant to NSW. The watershed cases of Hadiza Bawa-Garba and Nurse Amaro are summarised with the ramifications for doctors and nurses. Expedient strategies to assist doctors and nurses in minimising unlawful action are discussed.

Conclusions: Adverse medical events are high in Australia. However, new claims are decreasing. Negligence claim-numbers are disproportionate to statistics on adverse events. The Hadiza Bawa-Garba and Nurse Amaro cases have opened a legal can of worms with manifold negative ramifications for the nursing community.

Keywords: ABS, Australian Bureau of Statistics; AIHW, Australian Institute of Health and Welfare; Adverse event; Australia; CLA, Civil Liability Act 2002 (NSW); Law; Medication error; Midwife; NSW, New South Wales; Negligence; Nurse; Nursing; Tort; UK, United Kingdom.