Professional Negligence

What are civil claims?

• Within the Law of Tort (an act or omission that gives rise to injury or harm to another)

• Does not involve the GOC

• If successful will result in some form of damages being awarded to the plaintiff

Why might the GOC get involved in civil claims? And what will the GOC do?

• If the plaintiff reports the incident to the GOC and there has been a breach of the Standards of Practice

• The GOC will investigate to determine if the registrant is ‘fit to practise’ or if any restrictions need to be put in place

• It is unlikely to involve a financial penalty

What is the Law of Tort?

• Tort is the law of civil wrongs

• Usually provides people with the rights to compensation when another person harms their legally protected interests

• From an optometrists POV: negligence is the most relevant

What is the definition of negligence?

• Any act of omission which falls short of a standard to be expected of ‘the reasonable man/person’

What is personal negligence?

• Failure of a professional to behave with the level of care that another professional would have exercised in the same circumstances

How is negligence demonstrated legally?

Through 3 steps that must be proven by the plaintiff ON THE BALANCE OF PROBABILITIES:

1. Establish a duty of care (e.g. between optometrist and patient)

2. Show the duty of care has been breached

3. Show that harm has been suffered as a result of the breach of duty

What does ‘on the balance of probabilities mean’?

• Definite, clear proof is not needed

• But it needs to appear that it is more than 50% likely a situation would have occurred

What is a duty of care?

• Legal obligation imposed on an individual requiring that they adhere to a reasonable standard of care while performing any acts that could harm others

What are the three components to duty of care?

1. Reasonable foreseeability of damage to the claimant

2. Proximity between the defendant and claimant

   • Is there a link between what the optometrist has done and what the patient has suffered from

3. Is it fair, just and reasonable to impose a duty

   • This evolves over time as technology and testing improves

What is the principle of neighbour and how did it come about?

• “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

  • Neighbour - any person that is closely or directly impacted

• Started in 1932 after the Donoghue vs Stevenson beer and dead slug incident

What incidents relate to the foreseeability?

1. Roe vs. Minister of Health in 1954

   • Roe became paralysed after being injected with anaesthetic which had been contaminated by disinfectant

   • At the time it was not known about the contamination and therefore it was NOT FORESEEABLE

2. Haley vs London Electricity Board in 1965

   • The LEB had put an hammer in place to prevent people tripping over a hole made in the ground

   • Haley was blind and the hammer was not sufficient

   • This WAS FORESEEABLE

What incidents relate to the proximity?

1. Bourhill vs. Young in 1943

   • Young was driving motorcycle recklessly and caused a fatal accident, Bourhill later went to the location and saw blood

   • Bourhill later had a miscarriage and believed it was due to seeing the blood of the individuals who had passed

   • NOT ENOUGH PROXIMITY - maybe if Bourhill had interacted with Young could have been more proximity

What incidents relate to the fair, justness and reasonable?

1. Haley vs LEB in 1965

2. Bolton vs Stone in 1951

   • Cricket ball went over 100+ yards and 17ft high fence and hit bolton

   • A ball had been hit that distance 6 times in the last 30 years therefore there was no need for extra pre-cautions

     • NOT REASONABLE

What was the main outcome of the Bolam vs Frieirn Hospital Management case?

• If a doctor reaches the standard of a responsible body of medical opinion, he id not negligent

• If a procedure or diagnostic exam can be carried out a number of ways, a practitioner is not negligent for opting for a particular method that may result in an adverse effect in the patient undergoing treatment

  • So long as they have followed an appropriate method

• But the court is still able to discuss whether the method chosen was appropriate for that patient

What implications does duty of care have on optometrists?

• Avoids ‘corridor consultations’ - giving short advice without properly examining the px

• Avoids offering any advice outside of a formal consultation when findings and results have been evaluated

• Ensures documentation of any informal encounters or advice given

• Optometrists are allowed to decline a request for a patient appointment but must take the appropriate steps when doing so

What does the ‘average competent person’ mean for inexperienced optometrists?

• For inexperienced optometrists the GOC does recommend referring to other optometrists when dealing outside of their scope of practice

• Therefore an inexperience optometrist cannot be accountable for errors IF they have taken the appropriate steps and referred the patient along

What damages can occur due to a breach of duty?

Economic loss:

• Compensation for pain and suffering

• Future loss of earnings

• Loss of earning capacity and prospects

• Loss of benefits such as a person

• Future expenses including medical care

Non-economic loss:

• Affect of QoL

• Blindness

When can action be taken when a breach of duty has occured?

• Claims must be made within 3 years from the date the patient KNEW or should have known that his/her injuries were significant and had resulted from an act of omission of an identifiable professional

• However, minors cannot make any claims until the age of 18 therefore it is possible an incident could occur when they are much younger and claim anywhere between the ages of 18-21

• Exemptions can be made in exceptional circumstances

What are the most common causes of litigation in optometry?

• Failure to detect glaucoma

• Failure to detect RD

• Cataract surgery

• Tumours

• Contact tonometry