The charge of gross negligence manslaughter, a criminal offence, is rarely invoked in medical cases. In the most recent, a surgeon, Mr David Sellu, was convicted but released after serving half of a 30 month sentence, the judge having failed to instruct the jury on the difference between gross and simple negligence. Liam Donaldson, Clare Dyer, and others have discussed this and other cases in The BMJ. But how do different types of negligence differ?
“Gross” is from the IndoEuropean root GWERTSO, thick or fat, and a related root GHER, to scratch or scrape, connoting roughness. They also give us grain, gravel, grind, grist, gristle, grit, groats, gruel, and gruesome. The relevant definition of gross in the OED is “In concord with nouns of evil import . . . glaring, flagrant, monstrous”. The dictionary gives examples of its use with “nouns denoting vices, errors, faults, etc.”: gross absurdity, blunders, carelessness, credulity, ignorance, perfidy, sophistry, and stupidity, even though most of those are not of “evil import”. Flagrant, of an offence or crime, is “glaring, notorious, scandalous”; “notorious” is “of a reprehensible action flagrant”; and scandalous is “guilty of grossly disgraceful conduct”—circularity seems unavoidable.
“Negligence” has two etymological roots.
1. The phoneme /n/ gives us prefixes and words meaning “no”. To indicate “no” speechlessly you shake your head. To emphasise it you can grimace and phonate twice: “n-nn”. In Latin this was transformed into the prefix in- and its variants (il-, im-, ir-), as in incontinent, illegitimate, immature, and that irritating phrase, irregularly irregular. In Teutonic languages in- became on- (compare German ohne) or un- (unbalanced, unconscious, unstriated). Many negative Latin words begin with an n: ne (lest, or so that not), nec or neque (nor), nefas (unspeakable), negare (to naysay), nemo and nullus (no-one), nil and nihil (nothing).
2. The IndoEuropean root LEG meant to gather or set in order, to consider or choose, and so to read or speak. Those meanings are all reflected in the Greek and Latin words λέγειν and legere. Many words with -leg-, lex-, -lect-, and -log- derive from these, including elegy, dyslexia, dialectic, and ologies. Ligneous, woody, comes from the Latin lignum, wood, something that is gathered. LEG may even have given us the word leech, a medical practitioner, from Old Germanic læ̂kjoz and Old English lǽce, someone who speaks magic words, and by confusion with bloodsucking leeches.
Put Latin nec and legere together and you get neglegere, to disregard, ignore, overlook, do nothing about, the supine of which is neglectum, giving us neglect; and the present participle, neglegens, giving the noun negligentia, implying lack of order. Hence negligence.
Legally, negligence is conduct that falls below the standards of behaviour established by law for the protection of others against unreasonable risk of harm, or as the OED puts it, “not doing what a reasonable person would do, or doing what a reasonable person would not do; failure to carry out a legally imposed duty of care; lack of reasonable care”.
To prove negligence it must be shown that there was a duty of care, that that duty was breached by a failure to conform to the required standard of conduct, that harm resulted, and that the negligent conduct was the cause of the harm.
Gross negligence is defined as a conscious and voluntary disregard of the need to use reasonable care, likely to cause foreseeable grave injury or harm to persons, property, or both. It differs from simple negligence in regard to the amount of attention paid.
In a judgment on another case, Lord MacKay is reported as having said that the jury had to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, when there was a risk of death to the patient, was such that it should be judged criminal: “The essence of the matter . . . is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in [the jury’s] judgment to a criminal act of omission.”
It is hard to see in many cases how a jury can easily reach such a judgment, even with direction. Although his sentence has been remitted, Mr Sellu has not been exonerated of gross negligence. However, some might say that he appears to have been the victim of a gross injustice.
Jeffrey Aronson is a clinical pharmacologist, working in the Centre for Evidence Based Medicine in Oxford’s Nuffield Department of Primary Care Health Sciences. He is also president emeritus of the British Pharmacological Society.
Competing interests: None declared.