Written by Chrysanthi Vasiliou

Introduction

Medical Negligence is a crucial part of civil law and essentially relates to claims between patients and their doctors. Further, the medical profession is a field in which duty of care has been imposed in a strict manner. A doctor has a duty to provide treatment to his patients according to the acceptable standard of care and exercises the degree of skills that would be expected from an average practitioner.

Further, the “average practitioner” rule establishes a standard of care owed to patients and protects doctors as well. Under this approach, a doctor is not liable for a mere error or mistaken diagnosis when the treatment leads to an undesirable result, if he acted with a reasonable degree of care.

What is Medical Negligence?

Medical negligence occurs when a doctor acts below the acceptable standard of care and fails to take reasonable steps to prevent loss or injury to a patient. Thus, negligence may result from either an act or omission.

In Cyprus, medical negligence could also amount to criminal offence under the Criminal Code, Cap. 154, and a doctor may be found guilty of manslaughter. On the other hand, in civil law medical negligence is covered by the Civil Wrongs Law, Cap.148 and especially Article 51 deals with negligence in general and codifies most of the principles which derives from English Tort Law.

Further, for any legal action arising from medical negligence, the following elements must be satisfied:

• The doctor owes a duty of care to the patient
• That duty of care was breached by the doctor
• The patient was injured as a result of doctor’s breach of duty
• The patient suffered damages

What is a duty of care?

The law imposes a duty of care on doctors and healthcare practitioners to exercise reasonable care in treating their patients and use their professional skills to provide competent medical treatment without causing injury. Further, a duty of care exists once a doctor agrees to treat a patient who has requested his services and expertise.

When is the duty of care breached?

Once a duty of care is determined, the claimant must prove that the defendant doctor breached that duty and did not act according to the required standard of care.

Further, the standard of care has been established according to the ‘’Bolam Test’’ which was implemented following the case of Bolam v Friern Hospital Management [1957] 1 WLR 582. Since, then the test was adopted by several jurisdictions including Cyprus, as a universal test in relation to the standard of care in medical negligence claims.

Essentially, the ‘’Bolam Test’’ is based on the principle that a doctor would not be liable for negligence if he has acted with a level of care that would be expected from a professional body. However, over the years it has been considered as principle which was excessively reliant upon medical testimony. Furthermore, it has restricted the degree to which the Court could interfere in the decisions, since the standard of care was essentially set by a professional body and proved by medical testimony.

Consequently, the Court narrowed the scope of ‘’Bolam Test’’ and established the ‘’Bolitho Test’, following the case of Bolitho v City & Hackney Health Authority [1998] AC 232. The effect of the ’Bolitho Test’, is that the Courts would have to decide whether doctors’ practice was unreasonable and dangerous for the patient, under the given circumstances and they would no longer rely on the medical expert’s opinion.

Further, the ‘’Bolitho Test’’, merely had restricted the degree to which the medical profession may exercise discretion in setting the standard of care in medical negligence cases. Also, the shift from the Bolam to the Bolitho approach allowed the Court to reach its own assessments based on logic.

In the case of Aggeli v Vorka, (2007) 1 A.A.D 761, it was mentioned that the Bolam – Bolitho Tests consists of the legal position that applies in medical negligence cases in Cyprus and a doctor can be held liable for negligence even if medical professionals claimed that they would have acted in a similar way. The crucial question of whether a doctor is liable for negligence, must be answered by the Court within the context of the whole evidence which will be provided during the hearing of the case.

Nevertheless, the United Kingdom’s Supreme Court recently appeared to have modified the ‘Bolam Bolitho Test’’, in the case of Montgomery v Lanarkshire Health Board, [2015] UKSC 11, by imposing a general duty on doctors to inform and explain any possible risks involved in any recommended treatment. The above mentioned case of Montgomery v Lanarkshire Health Board’, stated that there will be legal obligations on all healthcare professionals to ensure that their patients are aware of material risks associated with their proposed treatment and what suitable alternatives, if any, are available.

What is causation?

According to the third element, the doctor’s act or omission must have caused injury to the patient and that loss was reasonably foreseeable by the doctor. It must also be established that the patient’s injuries were caused due to the negligent treatment of the doctor and if that treatment have not been provided, then the patient’s injuries would not have occurred.

Damages

Provided that all the above essential elements have been satisfied, the Claimant must prove that he has suffered injuries as a consequence of Doctor’s negligence. In medical negligence cases, damages are divided into the following categories:

General damages

General damages are a type of compensatory damages, which are awarded for pain and suffering. Courts have wide discretion in awarding general damages, and the amount of money awarded as compensation is determined by the Court according to the type and severity of the injury and its long-term impact on the injured party.

Special damages

A Claimant is entitled to compensation for financial losses resulting from the injury. When claiming Special Damages claimant has to provide sufficient and specific evidence in order to prove his loss.

Conclusion:

In conclusion, it should be noted that medical negligence claims have increased over the last years in Cyprus and the Courts have awarded significant amounts as remedies in medical negligence cases. This article provides an elementary outline of medical negligence and its legislation, while it refers to the elements that the Court would examine in case of a medical negligent claim.

For further information or advice on this matter, please contact Chrysanthi Vasiliou, Advocate in the Litigation Department (email: chrysanthi.v@yiangou.com.cy, telephone number: +357 22 653140)