Medical Negligence Non Patient and Third Party Claims 1st Edition by Rachael Mulheron 9780754646976 0754646971

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Product details:

ISBN 10: 0754646971

ISBN 13: 9780754646976

Author: Rachael Mulheron

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.

Table of contents:

Party 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 Topic 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

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-Patient Claims

C The Legal Framework for Establishing a Duty of Care: Some Preliminary Comments

1 The relevant application of the Caparo test to non-patient suits

2 The assumption of responsibility/reliance test

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 Causation Conundrums Arising in Some Non-Patient Scenarios

1 Causation and omissions to act

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) Aduty 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 Treatment of Tarasoff in the United States: Lessons 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

2 The robust form of duty

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) Aduty of Care

1 Proximity factors

2 Public policy considerations

E Particular Causation 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

F Conclusion

5 ‘Bad Samaritan’ Liability: Failing to Assist Non-Patients

A Introduction

B No Common Law Duty to Assist 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 Assist 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

D Criminal Liability For Failing To Assist: 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 Causation 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 Good Samaritan 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?

4 How is breach assessed for a Good Samaritan?

5 Conclusion

C Good Samaritan Legislation: Any Lessons 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

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

2 Wrongful birth scenarios

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) Aduty of Care in Pure Economic Loss 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 Setting the Context

1 Some preliminary points

2 A genuine or recognised psychiatric illness

C Illustrative Scenarios of Non-Patient Claims for Pure Psychiatric Injury

D Claims by Non-Patients as Primary Victims Against Healthcare Professionals

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

E Claims by Non-Patients as Secondary Victims Against Healthcare Professionals

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

F Non-Patient 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 Legally-Recognisable Injury

1 Why a ‘genuine psychiatric illness’ should be mandatory for fear-of-the-future claimants

2 Falling short: the options

D Proving the Duty in English Law

1 Denying fear-of-the-future claimants primary victim status

2 Recovery under the Caparo test

3 The case for rethinking fear-of-the-future claims

E Some American Insights about Fear-of-the-Future Litigation

1 Exposure to the disease-causing agent

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

2 Key interim developments

3 The East Berkshire (CA) decision

C The Wrongfully-Accused 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 Wrongfully-Accused’s Legal Position

1 The East Berkshire rule and art 6

2 Recovery by the wrongfully-accused under art 8

3 Does the common law need to change in light of art 8?

E Conclusion

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Tags: Rachael Mulheron, Medical, Negligence, Patient