Medical Negligence and Informed Consent — ENT Exam Notes (20 Marks Each)

Q1. Medical Negligence (20 Marks)

Definition

Legal Basis

• Negligence - requires proof of harm and causation ("but for" test), but requires a truly informed consent to succeed as a defence.
• Battery - any unlawful touching without consent; does not require proof of harm, but even minimal/less rigorous consent is enough as a defence.

Four Essential Elements (must ALL be proved)

1. Duty of care - must exist a doctor-patient relationship (arises via NHS list, hospital employment, or private contract). No "Good Samaritan" legal duty in the UK.
2. Breach of that duty - care fell below the accepted standard.
3. Harm occurred - actual damage/injury to the patient.
4. Causation - the breach caused the harm (the "but for" test: harm would not have occurred but for the breach).

Standard of Care - Key Legal Tests

• Bolam test (Bolam v Friern Hospital Management Committee): the standard is that of "the ordinary skilled man exercising and professing to have that special skill" - not the highest expert skill. A doctor is not negligent merely for practising differently from other doctors, provided a responsible body of medical opinion (at least two practitioners) supports that practice.
  • Standard relates to the specialty practised (a GP is not held to specialist standard).
  • An inexperienced/junior doctor cannot use inexperience as a defence (Wilsher v Essex AHA), but may discharge duty by seeking senior help.
  • Doctors must stay reasonably updated with developments; failing to know widespread new techniques may be inexcusable (Crawford v Charing Cross Hospital).
• Bolitho test (Bolitho v City & Hackney HA) - qualifies Bolam: the body of opinion relied upon must be logical and defensible, not merely asserted. This brings Bolam into the field of causation.

Types of Negligence (Forensic Medicine cross-reference)

Vicarious Liability

Damages Awarded

• General damages - for pain, suffering, loss of amenity (a conventional/scaled figure, e.g. GBP 150,000-170,000 for the most severe injuries).
• Special damages - specific quantifiable out-of-pocket losses: loss of earnings, medical/travel expenses, future care costs. May be a lump sum, provisional damages (if condition may deteriorate), or a structured settlement (annuity) for large lifetime claims.

Process When a Surgeon Is Sued

ENT-Specific Examples of Negligence Litigation

• Torrential haemorrhage after inferior turbinectomy (incidence ~1 in 60-200), especially with posterior turbinectomy.
• FESS complications - orbital injury, dural breach/CSF leak, and their sequelae (e.g. meningitis).
• Failure to warn of risk of "dead ear" after stapedotomy.

Defences Against a Negligence Claim

• No duty of care existed.
• Standard of care was met (Bolam-compliant, logical per Bolitho).
• No harm occurred.
• Causation not established ("but for" test fails, as in Bolitho itself).
• Contributory negligence by the patient.

Prevention (Practical Point for Exams)

Q2. Informed Consent (20 Marks)

Definition

Why Consent Is Necessary - Three Legal Jeopardies

1. Criminal battery (rare, exceptional circumstances).
2. Civil battery - touching without valid consent; no need to prove harm, only lack of valid consent.
3. Negligence for failure to warn - the most common route: claimant argues they were not warned of a material risk, and had they been warned, they would have refused treatment ("but for" causation).

Elements of Valid Consent

• A persistent sense of self with personal values.
• Understanding and knowledge of available choices.
• Ability to reflect and judge between options.
• Capacity to communicate the decision.
• Sufficient information - what would affect that particular person's choice (this is disputed/variable, not a fixed checklist).

Types/Forms of Consent

Standard for How Much Information Must Be Disclosed

• Bolam test (older/professional standard) - doctors themselves, via a responsible body of opinion, decided how much to disclose.
• Sidaway case (Sidaway v Bethlem Royal Hospital) - modified this: where a proposed treatment carries a substantial risk of grave/adverse consequences, it may be negligent not to warn regardless of "usual practice" - reflecting a patient's right to decide. The judges themselves were divided (not unanimous) on whether "informed consent" was truly part of English law.
• Factors weighed in deciding which risks must be disclosed: probability of the risk occurring and seriousness of the injury if it occurs.

Who Can Give Consent

• Competent adults (presumption of competence).
• Incompetent adults - cannot consent; best-interest/substituted decision-making applies.
• Minors/parental responsibility issues arise separately (age of consent, Gillick competence in UK practice).

ENT-Specific Consent Issues (High-Yield for Exam)

• FESS: must document warning of orbital injury, dural breach/CSF leak, and downstream risks (meningitis, anosmia) - litigation often arises not because a risk wasn't mentioned, but because the patient did not understand its consequences.
• Turbinectomy: must document warning of torrential haemorrhage risk and its psychological impact, especially in adolescents/young adults.
• Submucosal diathermy / local anaesthesia with adrenaline in rhinological surgery: rare risk of blindness - English courts (unlike the Australian Rogers v Whitaker case) have generally applied Bolam here, i.e. no duty to warn if virtually no ENT surgeon would routinely warn of an extremely rare risk.

Consequences of Inadequate Consent

• Civil claim for battery (if no consent at all) or negligence (if consent was inadequate/uninformed), potentially leading to damages.
• Undermines doctor-patient trust and may trigger disciplinary/regulatory action.

Key Exam Takeaway