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Serious sentence for medical negligence

In early November 2013 consultant surgeon David Sellu was convicted of manslaughter by gross negligence and sentenced to two and a half years in prison.

When presented with a patient suffering from severe abdominal pains, Sellu suspected a ruptured bowel but delayed in prescribing antibiotics and doing abdominal scans. The patient, James Hughes, went on to die and the court found that he would have stood a higher chance of surviving had Sellu treated him with the appropriate urgency.

What is medical negligence?

There are two kinds of medical negligence. The more common is civil negligence, in which the patient seeks compensation from their doctor for damage caused by poor treatment.

Civil negligence claims can result in huge amounts of compensation being awarded for which the doctor’s insurer or employer is normally liable. However, doctors do not avoid responsibility as they can be sanctioned or struck off by the General Medical Council.

For a successful civil negligence claim it is necessary to show that the doctor or medical professional breached the duty of care owed to the patient.

The test for whether this has been breached was set in the case of Bolam v Friern Hospital Management Committee (1957). The doctor’s actions must be in accordance with the standard of a responsible body of medical opinion. As such, it is recognised that doctors may encounter situations in which there is a range of treatments that could be appropriate. In these circumstances doctors can exercise responsible professional judgement.

Patients should be aware that if a doctor uses an unconventional procedure they will not necessarily be held responsible if things go wrong. Moreover, medical negligence claims are often difficult and costly to make in practice. This is because you need to provide expert medical opinions to show that the damage for which you claim compensation was caused by the doctor breaching their duty of care, and not because of your underlying condition.

Criminal negligence

More unusually, medical negligence can result in prosecution for manslaughter, as in the case of David Sellu. This is when a medical professional causes someone’s death by extreme carelessness or incompetence.

In this situation the level of negligence must be gross – or so bad that it amounts to a crime. Sometimes, the family members of deceased patients may feel that a criminal prosecution of the doctor is the only way to achieve true justice for their loved one. From the point of view of medical practitioners, a criminal negligence prosecution is far worse than a civil negligence claim. It could mean getting a criminal record at the least and life imprisonment at worst.

Are other professions immune?

Similar civil and criminal negligence rules apply to other professions and more generally to those providing services to clients. It is common for people in occupations where mistakes could cause significant damage (eg. doctors, lawyers, builders, architects and pilots) to have professional indemnity insurance.

However, it should be remembered that this does not prevent criminal prosecution for manslaughter if someone dies as a result of your gross negligence. It can be a high price to pay, but in a profession in which your actions have real consequences it must be accepted.

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Do you want more information on medical negligence? Visit Caven’s medical negligence section.

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