Is tort law appropriately applied to clinical negligence claims?
English common law has developed around notions of liability based on moral wrongdoing, and the right to damages historically established by showing that the defendant deserved to pay for the damage he had caused. As the law developed, fault became the basis for liability. A duty to compensate has grown out of a moral duty to pay recompense for morally blameworthy conduct. Whether conduct falls short of the required standard is assessed objectively. It is accepted that accidents, in the purest sense, cannot attract blame. In medicine, outcomes are not always what may have been hoped for. There are of course risks inherent in all medical and surgical treatment. Sub-optimal outcomes may or may not be avoidable, but if a patient has concerns that a poor outcome could or should have been avoided and wishes to seek compensation, he must bring a negligence claim, as confirmed in Ashcroft v Mersey Regional Health Authority [1]: ‘As the law stands, in order to obtain compensation an injured pe
