Looking for a term used in legal liability and medical ethics?

Question

I'm looking for a term in medical ethics.  If I actively do something that results in your harm, that is called strict liability, and there is abundant legal precedent assigning guilt.  But what if I prevent you from doing something that ultimately leads to your harm?  It seems that strict liability can never be established because I diidn't actually DO something that created the harm.  I am looking for the term that describes the disconnect of legal liability stemming from inaction on the part of the accused.

For example, say I am a doctor and I tell you NOT to take a particular vitamin because I have no knowledge of any benefit and I just don't believe in that stuff. But it turns out that years later you develop a chronic degenerative disorder that appears to be caused by a deficiency of that nutrient. Clinical studies show a clear association and a highly likely causative effect. The medical / legal environment doesn't assign liability based on inaction or failure to recommend a vitamin with benefits that have not been definitively proven. I don't think this is called "the null hypothesis" but I am searching for a similar term that describes this condition.

Lackadaisical.One · Accepted Answer

I think you've got the wrong end of the stick. Strict liability is the term given to liability which is established based solely on the actus reus, i.e. the fact that someone made an act or omission which led to a certain harm, regardless of their intention. You have to look to case law to find which act or omission carries strict liability. Just to emphasise, you can definitely be liable for a failure to act in cases where there is a duty to act.

Most things work by negligence in tort, i.e. failing to meet the appropriate standard of care with regards to a person to whom you owe a duty of care. I'm no expert, but I am under the impression that strict liability doesn't attract to the provision of medical services. Medical malpractice is an area which revolves around negligence. So, in the UK at least, you are not negligent if you have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. That's the Bolam test expounded in the case of the same name by McNair J.

So, doctors always owe a duty of care to their patients and therefore have to act in accordance with that duty of care. In the example you give, if the doctor can prove that, given the information available at the time, the advice not to take a vitamin was advice which a responsible body of practitioners would have given, then he is not negligent. To be fair, your example doesn't really cover omissions, since the doctor telling someone not to take something is still an active, positive act.

I think what might be more relevant to your question is the stance of a doctor who fails to mention a treatment which would be of benefit to the patient. That is an omission, but the doctor is only liable for that omission if no responsible body of practitioners would have given that advice.

So that was a long-winded way of saying that the term you are looking for doesn't exist in common legal parlance because liability is not automatically disconnected from omissions in medicine. If the omission is backed up by the responsible body of practitioners, then you could say that "the doctor adequately discharged his duty to the patient."

Wikipedia is your friend on this my man, check out the pages on strict liability, negligence and the Bolam test and you should be sorted.

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Looking for a term used in legal liability and medical ethics?

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