When Does Negligence Become Criminal?

The patient was an 18-year-old Afro-American female who required a simple procedure to her eye. She was extremely nervous in disposition, and therefore, it was decided she should have light, so-called “conscious”, sedation using a drug called Propofol.

The sedation was administered by intravenous infusion, and the patient was draped so that the only portion undraped was around her eyes for the surgery.

Oxygen was provided through nasal cannula, and a monitor was placed on her finger to check the oxygenation. Unfortunately, because this young lady was very particular about her nails, her heavily coloured acrylic nail varnish was not taken off. The junior anaesthetist who was left in charge felt that the monitor was possibly broken and not reading correctly, but felt she would be fine since she was being given oxygen.

Midway through the procedure, the surgeon became aware that she was not spontaneously breathing, and also immediately afterwards, she suffered a cardiac arrest. The drapes were removed and resuscitation attempted. She was intubated and ventilated, but unfortunately, 24 hours later she was declared brain dead.

The breach of duty of care in terms of not properly monitoring her oxygenation levels was so far below any standard that it would be regarded as reckless. The acrylic nails should have been removed and proper monitoring applied, without which the risk of severe damage, possibly leading to death by the use of intravenous sedation, would have been foreseeable. Following an enquiry, police were involved. Both the attending anaesthetist and the junior were charged with second-degree murder. This case, therefore, highlights that although medical negligence cases are generally regarded as civil offences, if the negligence is so gross as to be regarded as reckless in nature, then it becomes a matter for the criminal court.

MDU figures for 2023 show that fewer than one in six actions in medical negligence actually succeed, with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

Initial screening is, therefore, essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to court with no chance of success. This is stressful for both the client and their legal adviser, and indeed for the medical personnel involved.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44 (0)28 87724177 or email rpeyton@rpeyton.com

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