Medical law assignment.docx - University of Essex of Law...

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University of Essex School of Law Assignment Feedback and Cover Sheet (Do not write your name on this sheet or your essay) Module Name: Medicine and Law ! Module Code: LW 232 Registration Number: 1 7 0 2 0 7 9 Number of Words: 3000 Date Submitted: 25/4//2018 DO NOT WRITE BELOW THIS LINE Relevance of content and research Excellent Good Satisfactory Weak Poor Comments Analysis and argument Excellent Good Satisfactory Weak Poor Comments Structure Excellent Good Satisfactory Weak Poor Comments Use of language Excellent Good Satisfactory Weak Poor Comments Referencing and presentation Excellent Good Satisfactory Weak Poor Comments Key areas for improvement Comments
Mark: Deductions: Final Mark: (Subject to External Examiner) Reason(s) for Deduction: Signed by Marker___________________________________________ Date____________________
Introduction The statement given shows that the courts have become less deferential to medical professionals in medical negligence cases post-Bolitho. I did agree with this statement and this essay will address the law in relation to medical negligence with few cases and arguments which justified it. Then, the content will be followed by some discussions about how much judicial deference the court put towards medical professionals in the law of mental capacity and consent. There will also have some debates over the law on informed consent and best interests. Medical malpractice Medical malpractice is a legal cause of action which occurs when a hospital, doctor or other health care professional causes an injury to a patient through negligence or omission. 1 There is a well-known phrase stated that ‘Doctors are meant to make you better, not worse.’ However, occasionally things go wrong and it is not surprising that people who have been injured turn to the law to seek redress. 2 There are three main legal consequences which include, criminal prosecution, civil action and disciplinary proceedings brought by the National Health Service (NHS) or General Medical Council (GMC) whenever medical malpractice exists. However, in fact, it is very rare for doctors to face criminal charges unless they are clearly very blameworthy. 3 The disciplinary proceedings do not provide money compensation to the victims. 4 Thus, it is 1 Jo Samanta & Ash Samanta, Medical Law , (2 nd Edition, Palgrave, 2015) 92 2 Ibid 3 Sarah Green, ‘Coherence of Medical Negligence Cases: A Case of Doctors and Purses’ (2006) 14(1) Medical Law Review 1 4 Jonathan Herring, Medical Law , (5 th Edition Pearson, UK 2017) 62
submitted that usually the patients will bring a claim against the doctors or the authority under the tort of negligence. It is necessary for the claimant to show three things to succeed in negligence claim. First, he is owed a duty of care by the defendant. Next, the defendant breached the duty of care. Then, that breach of duty caused him injuries and those injuries are not too remote. 5 Normally, it is quite easy for the duty of care within the doctor-patient relationship to be established as the basic rule is that a person owes a duty of care to anyone they may foreseeably injure. 6

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