#15586 - Clinical Negligence - GDL Tort Law

Tort Law : Clinical Negligence

Who to sue

• (1) Medical professional at fault

• (2) Hospital/health authority vicariously for medical professional’s negligence, if employee

• (3) Hospital/HA directly.

Loss

• PI only (re duty of Dr to patient); and can claim consequential economic loss (eg loss of earnings).

• No duty for pure economic loss (Kapfunde v Abbey National, re not getting job due to negligent medical reference from occupational therapist, no DoC).

• Courts reluctant to recognise wrongful life claims:

  • McFarlane v Tayside Health Board: court compensated for pain & suffering of pregnancy; but not for costs of bringing up child. ‘Pleasure of a child’ = ‘incalculable’. No duty.

  • Rees v Darlington: sterilisation didn’t work; compensation for pain & suffering of pregnancy; not for bringing up child; gave 15,000 standard award for wrongful life claim.

DoC

• Professional duty (White v Jones)

  • Solicitor to clients: White v Jones.

• DofC between medical professional and patient: Cassidy v Ministry of Health

  • starts when medical prof accepts patient for treatment. .

  • Also applies to emergencies Barnett v Chelsea & Ken: in emergency, DoC owed once treatment undertaken by medical professional, (eg those entering A&E).

• Not always, eg no DoC re economic loss, Kapfunde v Abbey National: No DoC re Dr providing advice for occupational health report, economic loss claim.

• Kent v Griffiths, ambulance service, DoC to respond, and within ‘reasonable’ time.

• DoC re writing clearly and checking prescriptions, Prendergast v Sam & Dee: duty to ‘write clearly and legibly’ [Dr 25% liable; pharmacist 75%].

• DoC to prevent patients harming themselves/others

  • Clunis v Camden & Islington HA: had mental disorder; discharged; murdered somebody.

  • Goodwill v British Pregnancy Advisory Service: vasectomy failed on man; woman fell pregnant; mother sued for cost of bringing up daughter; no DoC to third party, lack of proximity.

• DoC on Hospitals/Health Authorities:

  • Duty = to provide the services of medical professionals with sufficient skill & experience.

  • Wilsher v Essex HA; Kent v Griffiths: Duty to provide doctors or services of a sufficient level of competence/training/skill.

  • Bull v Devon AHA, hospital/patient, direct DoC, re mismanagement of system in hospital, long wait between deliveries of twins; (not about lack of resources). DoC includes: Doctors trained correctly in right area; training ancillary to running of hospital; supervision in place for doctors/staff.

  • Johnstone v Bloomsbury HA: staff overworked, breach.

  • Resources/right to treatment, no absolute duty on HA to provide treatment

  • R v Cambridge HA, ex p Child B (a minor): HA declined to continue experimental treatment re leukaemia; high cost of treatment (75,000); chance of success between 10-20%; no absolute DoC to provide every treatment.

    • Funding/resource issue, courts unlikely to interfere.

• No DoC for wrongful life claim:

  • McFarlane v Tayside

  • Rees v Darlington

Breach (1)—Standard

• Bolam, facts: re electro-convulsive therapy (ECT), fractured pelvis; should relaxant drugs be used; 2 bodies of opinion.

• Limb 1, standard = professional standard (Bolam; Wilsher)

  • Bolam v Friern—professional standard, reasonably qualified Doctor.

  • Wilsher v Essex:

    • act not actor, act is medical so standard = reasonable qualified Dr.

    • Junior/training Doctor no lower standard, test is objective

    • Bolam standard is uniform. Eg if surgery, ‘reasonably competent surgeon’.

    • But if Junior Dr seeks advice from more senior Dr liability might fall on Senior Dr for lack of supervision (Wilsher)

  • Bull v Devon AHA: HA could be liable for putting junior Dr in situation with no supervision.

  • Standard of consultants—Ashcroft v Mersey.

  • Bolam standard, remember specific to the act: eg ‘reasonably competent ICU nurse’ , ‘reasonably competent surgeon’ etc.

• Standard for hospitals/health authorities: Reasonable competent hospital/health authority (Bolam; Bull v Devon; R v Cambridge HA, ex p Child B; Wilsher v Essex).

Breach (2)—Breach, fallen below standard, Bolam test

• Bolam test: not guilty of negligence if he has ‘acted in accordance with a practice accepted as proper by a responsible body of medical opinion’.

• De Freitas v O’Brien, doesn’t have to be a majority of opinion, merely an acceptable body.

• Courts won’t choose between professional opinions:

  • Maynard v West Midlands RHA: decision to go ahead with procedure rather than wait for test results. Applied Bolam test--Complexity of decision/procedure—court won’t challenge opinion.

• CF, now, Courts might choose, if the decision is illogical or unsafe

  • Bolitho v City & Hackney HA: obiter, Lord Browne-Wilkinson, might choose. Re Dr, summoned to attend baby with breathing difficulties; didn’t attend. Experts said would not have attended. If the professional opinion ‘is not capable of withstanding logical analysis’—will be ‘rare’. If illogical/unsafe.

  • Marriott v West Midlands HA: obiter, woman fallen downstairs; whether GP should have sent her to hospital re head injury. There was no expert opinion defending the action, so wasn’t consider; but obiter: if there was, might deem the opinion illogical.

  • Actually applied—Taaffe v East of England Ambulance Service NHS Trust: patient had chest pains; ambulance called, didn’t advise going to hospital. Could chose between bodies of opinion, said one (not sending to hospital) was not reasonable/logically defensible.

• Distinguishing these cases, re whether courts will challenge professional opinion

  • Bolam: complex procedure, risk analysis.

  • Maynard: complex procedure, professionals gave good reasons.

  • CF Bolitho: one of reasons for not attending was that pager wasn’t working not a complex medical factor, more procedural/operational.

  • Marriott: GP decided not to refer to hospital, head injury seemed irrational.

  • Taafe: failure to send to hospital.

  • Make point that courts challenging professional evidence/opinion will only be done very rarely.

  • So courts might want to know (Bolitho; Marriott; Taafe), re breach: how he reached decision, what are reasons given, would other doctors have done so, was action ‘logically’ justifiable.

• NB, omissions to examine/attend can be potential breach [though both these cases failed on factual causation]:

  • Barnett: failure to examine

  • Bolitho: failure to attend

  • Marriott; Taaffe; failure to refer to hospital

• Whitehouse v Jordan, distinguish between non-negligent error of judgment and negligence: re senior registrar; performing C-section; D used forceps; brain damage. NO breach, was an error of judgment, which may or may not be negligent. If an error of judgment that a ‘reasonably competent professional’ would have made not negligent.

• Handwriting, apply Bolam test breach of poor handwriting re prescription: jointly liable with dispensing pharmacist: Prendergast v Sam & Dee.

  • Apply Bolam test: unlikely a reasonably competent Dr/surgeon would write illegibility.

  • [NB: might be able to distinguish Prendergast, eg if Dr is writing in an emergency, CF Prendergast was not an emergency]].

• Bolam test also applied to:

  • Alternative medicine, Shakoor v Situ

  • Experimental medicine, Simms v Simms

• Re advising of risks of treatment, special application of Bolam test/not Bolam test ‘material risks’ (Montgomery).

  • Historic position, Sidaway v Board of Governors of Bethlem Royal, apply Bolam test

    • Surgeon failed to warn of small risk (1%) of damage; surgeon not liable.

    • Lord Diplock: apply Bolam test—if a responsible body of opinion would not have warned of risk, no breach.

    • Lord Bridge, if risk above 10%, a reasonable Dr would tell patient.

    • Lord Scarman, disagreed: whether risk is material depends on whether C wants to know.

    • Emphasised that Mrs Sidaway had not specifically asked re risk. If had done Dr would have been obliged to answer truthfully.

  • Chester v Afshar, if C specifically asks, should be told of risk, however small. [still using Bolam test]. C, considering spine operation, specifically asked.

  • Pearce v United Bristol Healthcare, consider emotional state of patient, if not in best interests can withhold advise of risk (affirmed in Montgomery): Reasonable Dr would not have told patient of all the risks, considering emotional state not in a position to make a proper decision. Therapeutic privilege: Dr can decide might not be in best interests to inform a patient of risks, given their emotional state.

  • Recent change in law (away from Sidaway), duty to advise of any (a) ‘material risks’ (=significant to a person in patient’s position/or to that particular patient), and (b) of any reasonable alternative treatments Montgomery v Lanarkshire Health Board, SC

    • Rejecting Bolam test re advising of risks.

    • Rejects Chester approach re it being about whether patient asks

    • Patient diabetic; pregnant; short risks of delivery baby naturally. Wasn’t told about risk to shoulders of baby; argued if told, would have had C-section.

    • Obstetrician argued: risk was so small. Supported by some experts (invoked Sidaway applying Bolam test).

    • Move away from paternalistic ‘Dr knows best’ approach move to informed consent, patient’s right to choose. Dr should tell patient all info needed to make decision, or in breach.

    • Even if Doctors are hurried/less experienced—need to impose this legal obligation, to ensure they do this.

    • Lords Kerr & Reed; ‘Dr is under a duty to take reasonable care to ensure that the patient is aware of (a) any material risks in any recommended treatment, and (b) of any reasonable alternative or variant treatments.’

    • What is ‘material’ risk: ‘whether ... a reasonable person...