Reforming Gross Negligence Litigation to Institute a Balance between Professional Autonomy and Legal Accountability Through Adopting a Holistic Approach (Research Paper Sample)

Reforming Gross Negligence Litigation to Institute a Balance between Professional Autonomy and Legal Accountability Through Adopting a Holistic Approach Student’s Name Course Name: Course ## Institutional Affiliation Professor Date Contents TOC \o "1-3" \h \z \u Part 1 PAGEREF _Toc174353510 \h 3Introduction PAGEREF _Toc174353511 \h 3Theories PAGEREF _Toc174353512 \h 3Analysis PAGEREF _Toc174353513 \h 4Conclusion PAGEREF _Toc174353514 \h 4Part 2 PAGEREF _Toc174353515 \h 5A critique of the relevance of the primary academic source PAGEREF _Toc174353516 \h 5Primary sources PAGEREF _Toc174353517 \h 7Cases PAGEREF _Toc174353518 \h 7Bibliography PAGEREF _Toc174353519 \h 7Journal articles PAGEREF _Toc174353520 \h 7 Reforming Gross Negligence Litigation to Institute a Balance between Professional Autonomy and Legal Accountability through Adopting a Holistic Approach Part 1 Introduction The central focus of the commentary was to highlight the notoriously elusive nature of gross negligence in medical spaces and most importantly, highlight how cases of manslaughter as a result of gross negligence by medical professionals test the boundaries of criminality. Years of legal scholarship have continued to show the indeterminate nature of medical manslaughter which in turn has worked to challenge the provision of justice because of a lack of a reliable theoretical regime and legal framework to determine culpability. The elusive nature of manslaughter is further compounded by the fact that medical violations fall in the ambit of professional bodies which are required to investigate and provide decisive directions in the events of their occurrence, not the courts. However, in the case when the harm is far too extensive such as in the case of manslaughter, it has been proven time and again that common law has unfortunately focused on the harm rather than the principle of culpability in delivering justice when we all know that harm should not be used as the central compulsion for justice.[‘R V Cristea [2021] EWCA Crim 1597, Court of Appeal’, ‘R V Cristea [2021] EWCA Crim 1597, Court of Appeal’ (28 December 2021).] Theories Although medical errors and cases of gross negligence in their totality raise important issues, two theories have traditionally emerged, professional autonomy and legal accountability. The first theory is that the medical practitioner (defendant) failed to use, or did not effectively use professional competencies in a way that would help avoid the misfortune (suggesting timid use of professional autonomy). The second theory posits that the medical practitioner consciously violated per se rules and precautions that directly or foreseeably led to the undesirable outcome as tabled in the court of law (legal accountability). Analysis As simple as deciphering the line between professional autonomy and legal accountability may seem, the multi-layered nature of medical practice as a science invites the need to interrogate multiple related areas that intimately touch these two spheres in order to establish a substantial foray in this discussion. For example, it is important to interrogate how standards of practice and care factor if cases of manslaughter are tabled for litigation. The overarching question in this regard is thus "Did the conduct of the defendant deviate from what is expected of them? In this sense, the crux at this point is to determine whether the inaction or inactions of the practitioner fall squarely (or not) within what is expected of a person holding their position. Further, if the behavior under scrutiny is found to be defiant from standard practice, the court must decide whether the conduct of the professional amounts to gross negligence and therefore deserving of state censure or is one that falls in the jurisdiction of professional organizations. The results of the process may then be used to provide clarification on whether the medical violations as reported make the defendant liable for criminal behavior. Lastly, as expected of standard legal practice, the court must also determine and substantiate the causality of the advertence or inadvertence of the medical professional to the outcome of the practice, whether foreseeable or direct. Conclusion In conclusion, the commentary inferred that when law meets medicine in the context of medical malpractice, courts are confronted with the responsibility to adopt a holistic approach in arriving at a consensus. It is noteworthy to report that to ensure a safe conviction, the decision must reflect the factual background of the case, its legal history, all applicable laws, previous court decisions as well as source for expert knowledge in clinical matters to shed light upon the issue. This way, the court enjoys greater prospects of arriving at a decision that not only acknowledges the independence of medical professionals but in a way that ensures desirable patient outcomes. Part 2 A critique of the relevance of the primary academic source The commentary features ideas and arguments from the landmark case; R v Sellu (2016) because the case provides a rich specimen that precisely captures the degree of legal uncertainty that conventionally surrounds cases of medical malpractice. R vs Sellu is an appeal submitted by a previously convicted colorectal surgeon following a sentencing on the basis of gross negligence. One of the reasons the case becomes significantly important in the present conversation is that R v Sellu (2016) is an appeal to a case that was centrally decided on the principle of harm, thereby neglecting the equally important principle of culpability as common in these scenarios. Secondly, the case is selected because it reignites the conversation on what entails gross negligence in cases of medical malpractice. The conviction of the defendant before the appeal was based on three central grounds; failure to take immediate action following the deceased's dischar...