Sometimes cases come to medical negligence litigation many years after the event. My record so far was litigation 40 years after the event. Litigation was allowed because although the Claimant had had the problem all the while, they had not discovered that they had the problem until recently.
So, doctors, you’ll never be free of that small risk of litigation, even years later.
In such cases, the standard of care expected of the doctor concerned is the standard of care that existed at the time the events occurred. The principle is that it would be ridiculous to criticise Ignaz Semmelweis (1818-1865) for not using antibiotics in treatment of puerperal fever.
It can be tricky for lawyers to find a doctor in medicolegal practice who was also in practice 40 years ago – but they will have a go.
Experts dealing with such cases must time-travel back to those days and refer only to references and techniques that were in use or known about then. This means using references and textbooks that predate the events when dealing with Breach of Duty in management of the patient.
Anyone who might be interested in a medicolegal career – keep your old textbooks. I have kept every edition of Campbell’s that I have bought since I was a trainee. They come in handy for this sort of thing. (They are also useful if some obsolete disease turns out not to be as obsolete as was thought – like the occasional case of pseudo-poliomyelitis.The management of polio is still lurking in those texts. You only have to open them).
When it comes to Causation arguments however, my observation is that matters are different to the situation in Breach of Duty (BoD). By contrast to the situation in BoD, if we ignore current knowledge in discussion of the issues of causation, we do not get a sensible and equitable result.
I want to stretch the earlier analogy about Semmelweis. While we applaud Semmelweis for his enlightened preventative management of puerperal fever, we do not have to accept his ideas about causation. He thought that puerperal fever was caused by the transfer of ‘cadaverous particles’ from the dissecting rooms…close, but not quite there.
We cannot talk usefully today about puerperal fever or any infection, and the consequences thereof, without acknowledging the existence of bacteria. We have to use current knowledge.
So in Breach of Duty & Liability we must use the standards of the time, and texts & references that pre-date events. If diagnosis was delayed, ask yourself – had MRI been invented, was it available & in widespread use? Consideration of such matters can alter the complexion of a case significantly. Could whatever condition it was have been diagnosed without appreciable risk by available techniques? We take for granted the wonderful diagnostic techniques (and wonderful radiologists) that we have now. But, as they say, the past is a different country.
When we look at the causation or consequences of decisions made, we are not limited in the same way. We use current knowledge.
Condition and Prognosis refer to matters as they are now. You can use any reference you like provided it is relevant and preferably recent, but the classics still work too. I would caution against predicting wonderful advances in years to come that will miraculously cure the residual problem. It may well not happen. More to the point, I have never seen that approach be successful in arguments about prognosis. Perhaps others have?