Reasons to choose Wilson Browne
Usually, medical negligence involves a civil action brought by the claimant, but in some instances, it can lead to a criminal prosecution by the state.
When this happens, the case is one of gross negligence, and it is different to ordinary medical negligence.
What Makes Gross Negligence Different to Medical Negligence?
For gross negligence to apply, the defendant’s behaviour has to amount to a criminal act or omission (failure to act).
If someone dies as a result of this behaviour, then it is a case of gross negligence manslaughter.
A 1995 House of Lords ruling sets out the conditions where gross negligence manslaughter applies:
- Someone dies due to a grossly negligent act
- A duty of care applies
- There has to have been a breach of this duty of care
- This breach caused or significantly contributed to the person dying
- The breach is therefore gross negligence and is a criminal offence.
The difference between gross negligence and medical negligence isn’t just in the outcome for the patient.
Gross negligence arises from extreme disregard or carelessness on the part of a healthcare practitioner towards a patient. Malpractice may apply if the case shows that the healthcare practitioner was aware of the consequences of their actions but went ahead with their course of action anyway.
But the focus of a gross negligence case is on the act rather than the person committing it. The prosecution will attempt to prove that there was an extraordinary degree of negligence involved.
When Does Criminal Liability Apply to Negligence?
Some cases allege a doctor’s actions amount to criminal responsibility for the death of a patient.
In the Adomako case that sets down the current test for gross negligence manslaughter, the defendant was a locum anaesthetist. He was taking part in an operation to correct a detached retina.
The defendant failed to notice that there was a dislodged tube during the operation. This deprived the patient of oxygen, and they suffered a cardiac arrest and died.
Adomako had failed to notice for over four minutes that the oxygen tube was disconnected. One expert witness for the prosecution said that a competent anaesthetist would notice this within 15 seconds.
The defendant was convicted of manslaughter based on gross negligence. He appealed to the House of Lords, but they upheld the conviction, confirming that gross negligence was the correct test to apply in this case.
This means that a conviction of gross negligence manslaughter can apply to a doctor or other healthcare professional if the breach in the standard of care results in death and is so grossly negligent as to justify a criminal conviction.
The standard of care a doctor should provide is that of a reasonably skilled doctor in the same field of medicine. Therefore, in a criminal case, it’s up to a jury to decide whether the standard of care the defendant provided was badly negligent to the extent that it was criminal.
Claiming for Medical Negligence
Most medical negligence claims are civil cases, and the NHS pays out considerable sums every year to settle them.