Using the medical treatment contract as an instrument for replacing the tort liability system in England.

In modern medical law, there is much criticism of the existing medical liability system in England, which is based on the duty of care and breach of that duty (negligent behaviour). The duty of care plays a crucial role as its violation is the foundation for establishing negligent behaviour. It is set through general principles, whose content cannot effectively encompass the diverse types of relationships between a patient and the healthcare provider. The main participants in the relationship built around medical treatment are not satisfied with the existing system. Patients do not feel that the system works for them. They are struggling with a lack of information and complicated requirements of proof in litigation, especially with demonstrating whether the doctor acted negligently. This further leads to long litigation and high costs. Moreover, courts do not interpret negligent behaviour as one of the conditions for medical liability, in the same way in similar situations, which causes different outcomes and lack of reliability. Additionally, doctors fight stigmatisation in the case of mistakes because the focus is on their potentially negligent actions during the medical treatment provision. They answer this challenge by practising defensive medicine. Despite defensive behaviour, the number of litigations constantly rises, which, together with defensive medicine, induces significant costs for the NHS and society. As one of the possible solutions for the problems described above, this work appraised a new balanced contractual model for England that should effectively regulate the relationship between a healthcare provider and a patient, including potential disputes between them. The new model was created through an analysis and comparative research of case law, discussions of legal and socio-legal concepts found in academic literature, and interpretation of legal rules. This resulted in a combination of the standard term framework agreement as a roof structure and particular contracts, both with a relational nature, centred in most situations around the obligation to achieve a particular result ('fit for purpose, obligation) and exemption clauses. Further, this research examined how the proposed model can effectively resolve the problems identified in English jurisdiction. Then, the solutions proposed in the new contractual model were compared with the legal framework in England to consider how its approach fits into English law and to consider if it can apply universally to all patients and healthcare providers. Finally, the developed model was compared with alternative solutions such as tort liability, no-fault liability and the classic contract. The conclusion is that a new contractual model created through this work offers a mixture of predictability, certainty, balance, efficiency, and adaptability to different situations. Based on that, this research proposed universal model, applicable to all patient-healthcare provider relationships, established on mutuality in obligations and rights, delivering quality care, and achieving the expected goals, which provides necessary efficiency in the case of establishing liability, to be adopted in English law as a replacement for the existing system.

Grantor dc:publisher.institution

Robert Gordon University

Year dc:date.issued

2025

Author dc:creator

• Tasić Dittrich, Katarina

Advisor dc:contributor.advisor

• S. Sivers, U. Iloka and D. Christie

• Tort liability
• Negligence in healthcare
• Duty of care
• Contractual models
• Patient-provider relationship
• Healthcare dispute resolution
• Relational contracts
• English medical law

Language dc:language

en

Identifier

oai:rgu-repository.worktribe.com:3217090
https://doi.org/10.48526/rgu-wt-3217090

Author Identifier

0000-0001-9586-0166

OAI identifier oai:identifier

oai:rgu-repository.worktribe.com:3217090