What Constitutes Negligence and Gross Negligence Manslaughter?

This chapter discusses the necessary legal elements in establishing civil claims in clinical negligence and a criminal charge of gross negligence manslaughter (GNM). In order to succeed a negligence claim against a healthcare worker, a claimant needs to establish and prove that the defendant owes him a duty of care; that the defendant breached his duty; that the defendant’s breach of duty caused the claimant’s physical and /or psychiatric injury; and that the injuries were not ‘too remote’. Whilst the courts have no difficulty to impose a duty of care on the defendant doctor in an established doctor-patient relationship, it has been observed that such a duty has been expanded and extended to third parties who are not direct patients of the defendant doctor. In assessing whether the defendant has breached his duty or not, the courts have relied on the Bolam test to gauge whether the defendant’s act or omission has lived up to the standard of care. Put simply, a defendant doctor does not breach his duty of care and is not negligent if he has acted in accordance with a responsible body of medical men skilled in that particular art, even though some other practitioners might have adopted a different practice. However, it has been criticised that the courts have excessive deference to medical expert opinions rendered claims in this area difficult if not impossible. Thus, in Bolitho, the House of Lords in the UK has reclaimed that expert testimony must be capable of withstanding logical analysis before being accepted by the courts. Moreover, in the realm of risk disclosure and informed consent, Bolam was disapproved and replaced by the test in a Scottish case Montgomery, in the Supreme Court judgment in 2015. In establishing the legal causation in medical negligence claims, the courts have used the strict ‘but for’ test. Notwithstanding, it was observed that there was some relaxation of the strict rule in the interest of policy consideration in recent cases. That said, the claimant is still required to prove that the injury alleged is not too remote and is reasonably foreseeable. Turning to criminal cases, the House of Lords in Adomako has reaffirmed that the gross negligence test should form the proper basis of liability for manslaughter in breach-of-duty cases, not subjective recklessness. Thus, in GNM trials, the jury has to decide, having regard to the risk of death involved, whether the conduct of the defendant was so bad in all the circumstances as to amount to criminal sanctions. © 2023 City University of Hong Kong