It has been said that Montgomery is a case in which the courts caught up with what was already required of healthcare professionals by their regulatory bodies. This requires a fairly detailed knowledge of your patient and their circumstances, as well as time to explain the treatment options, including, crucially, the option of doing nothing or seeking treatment elsewhere, and the time to write it all down. It is therefore no longer enough to be able to prove that a responsible body of practitioners would not warn of a certain risk - if that risk is material to that specific patient, they must be warned of it, and to fail to do so is a breach of duty. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk or the doctor is aware, or should reasonably be aware, that the particular patient would be likely to attach significance to it. In that case it was held that it is not enough to act in accordance with a reasonable body of opinion the healthcare practitioner is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. More recently we have Montgomery (2015), 3 which applies to the tricky area of informed consent. In Bolitho (1998), 2 it was held that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion: which is logically indefensible. We start with Bolam (1957), 1 which told us that if a healthcare practitioner acts in accordance with a responsible body of opinion, they are not negligent, even if others differ in opinion or practice. The case law in this area is ever-evolving. The experts may be equally well qualified and experienced in their field, however ultimately it will be up to the judge on the day to decide which expert they consider is most persuasive. In all but the most cut and dried cases, it will often be possible for both sides to find an expert who will support their case. The claimant will need expert evidence to support their claim and the defendant will similarly need expert evidence to defend the claim against them. That is, whether they breached their duty of care to the patient by treating them in the way that they did. Even if there is no dispute about what the healthcare practitioner did or didn't do, there may be a dispute about whether what they did was 'negligent'. The next issue is that of expert evidence. Often the consultation was unremarkable and several years ago, so that all the practitioner can tell us is what their usual practice is. What happened? What did the healthcare practitioner do or say? Is there contemporaneous documentary evidence (usually in the form of the clinical records)? Or, as is often the case, are these records lacking in detail so that we are reliant on the patient's account of what happened, and the practitioner's recollection, if they have one. This involves assessing the factual evidence. In most cases, going to court is not the best option, and therefore those of us who represent healthcare practitioners must do our best to advise our clients which way the dice will fall. More usually, the point is highly contentious, and the difficulty is that there is often no right answer, until the judge makes a decision in court. Sometimes, it's easy: if a rogue healthcare practitioner does something which no other practitioner would countenance, and which runs contrary to usual practice, guidance, and the evidence base, you don't need a lawyer or a judge to tell you that they have breached their duty of care. See Restatement (Second) of Torts § 282 (1965).The issue of whether a healthcare practitioner breached their duty of care to their patient is central to clinical negligence claims, and it can be very difficult to determine. Negligent conduct may consist of either an act, or an omission to act when there is a duty to do so. See Restatement (Third) of Torts: Liability for Physical Harm § 3 (P.F.D. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one's previous conduct). A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.
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