Medical liability is likely to continue to be a real problem for the medical profession during the next 10 years. Thus, it is necessary for all of us to have at least the basic legal knowledge to face potentially difficult situations with patients who have suffered a genuine medical problem or those who believe they have.

MAIN RULES FOR MEDICAL LIABILITY

Hospital liability is different from business liability

In contrast to French laws, which have followed the principle of contractual liability since 1936, and American laws, which use a combination of delictual (violation of law) and contractual liability,¹ English medical liability is based purely on the common law principles of liability.* The practitioner will be prosecuted if he causes an involuntary injury through negligence. Negligence occurs when the standard of care is not met, the standard of care being defined as “the standard of the ordinary skilled man exercising and professing to have that special skill... it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art” (Bolam v. Friem Hospital Management Committee, 1957). Thus, if the practitioner can demonstrate that the standard of care was met he is not liable for the patient’s injuries.^2–4

Liability is not, however, limited to personal liability: employers can be held responsible for their employees’ actions.

The plaintiff will have to prove the causal link between his injury and the practitioner’s actions or failure to act. Thus, filing a lawsuit against a practitioner presupposes the association of a medical error, an injury and a causal link between the above—that is, that the error caused the injury and the injury would not have occurred otherwise.²

On the other hand, if there is a clear error, it is the responsibility of the practitioner to prove he was not at fault.

If a patient does not agree …