#3079 - Professional And Clinical Negligence - GDL Tort Law

• Duty

  - Professionals: duty to client (White v Jones: solicitor liable for not amending will).

  - Medical profession: duty to patients (R v Bateman; Cassidy v MOH: [Ld Denning] once responsibility assumed, no need for contract/reward.)

  • emergency: only when responsibility assumed (Barnett v K&C HMC).

  • duty to act in best interests of patient (Re F (Mental Patient: Sterilisation): no consent needed).

  • duty to write prescriptions clearly (Prendergast v Sam & Dee Ltd: dr. + pharmacist jointly liable).

  • limitations:

    • c. must be patient (Kapfunde v Abbey National: not liable for pre-job assessment w/out examination).

    • no common law duty to prevent patient harming self/others (Clunis v Camden HA: mental patient stabbed passer-by HA not liable.) – but consider statute (Mental Health Act 1983).

    • no duty to 3^rd parties (Goodwill v British Pregnancy Advisory Service: no duty to vasectomy partner).

    • wrongful life: only pregnancy, NOT raising child recoverable (McFarlane v Tayside Health Board).

  - Hospitals/HA: duty to provide services of medical professionals with sufficient skill.

  • Wilsher v Essex AHA; Kent v Griffiths obiter – hospitals liable for failure to provide adequate care.

  • Bull v Devon AHA: hospital organised care badly, 2^nd twin born disabled HA liable.

  • Johnstone v Bloomsbury AHA: junior dr. overworked HA liable.

  - Policy/resource allocation – no absolute duty to provide all treatments (R v Cambridge HA ex p Child B: 75k procedure with small chance of success refused not liable) – policy: unreasonable, floodgates, defensive practices etc.

  • but decision must be reasonable (Rogers v Swindon NHS Trust).

Standard of Care + Breach

- Standard: ordinary skilled man exercising + professing to have special skills (Bolam v Friern HMC, [McNair J]).

• inexperience irrelevant (Nettleship v Weston; Wilsher v Essex AHA: jr. dr. mistook vein for artery).

  • but: senior may be liable for improper supervision (WIlsher v Essex; Bull v Devon AHA).

• surgeon: reasonably competent surgeon (Ashcroft v Mersey RHA).

• alt. medicine: reasonably competent practitioner (Shakoor v Situ).

Breach

- Test: action acceptable to reasonable body of professional opinion (Bolam v Friern HMC).

• differing opinions valid (Maynard v W Midlands HA, [Ld Scarman]: court should not decide).

• can be minority (De Freitas v O’Brien & Connolly: 11/1000 consultants) – esp. for specialism.

• but: court can deem body unreasonable if no logical basis (Bolitho v City HA, [Ld Browne-Wilkinson]: rare).

  • e.g. Marriott v W Midlands HA: GP advised patient with head injury + headache to stay home.

  • e.g. AB v Leeds Teaching Hospital NHS Trust: taking organs from dead children w/o consent.

  • e.g. Lybert v Warrington HA: warning about possibility of sterilisation insufficient (despite standard).

• guidelines: also considered (Thompson v James: GP failed to observe DoH guidelines re: advocating MMR vaccine to parents liable) – now more codification (NICE etc. greater emphasis on standard practice).

• - Level of info. given on risks – apply Bolam (Sidaway v Bethlem Royal Hospital Governors).

  • Sidaway v Bethlem Royal Hospital Governors: dr. did not advise of 1% risk of spine damage from back op not liable (RBOP would not have warned).

    • but not unlimited discretion: [Ld Bridge] obiter: 10% risk should be disclosed.

  • BUT: if patient asks – full disclosure required (Chester v Afshar: small risk of nerve damage in spine op).

  • can take a/c of patient’s emotional state (Pearce v United Bristol Healthcare NHS Trust: c. in labour + emotional, d. did not give all options not liable).

  - Error of judgment: not negligent if might be made by man with reasonable care (Whitehouse v Jordan: dr. tried to deliver baby with forceps 6 times before using Caesarean section not liable.

  • rationale: defensive practices – [Ld Denning]: like ‘holding dagger to doctors’ backs’.

  - ‘State of the art’ defence: cannot guard against unknown/unforeseeable risks (Roe v Minister of Health).

  • Roe v MOH: anaesthetic contaminated with disinfectant from invisible cracks in ampules unforeseeable.

  • need not be aware of every new development (Crawford v Charing Cross Hospital: d. did not read 6m old Lancet article not liable.)

  • experimental treatment: more risks allowed (Simms v Simms: experimental treatment for CJD allowed).

  • BUT: must make reasonable appraisal (N v UK Medical Research Council: failure to carry out appraisal of HGH + link with CJD liable).

  - Res Ipsa Loquitur: if accident does not occur in ordinary course of things w/o neg. (Scott v St Katherine’s Docks).

  • Cassidy v MOH: stiff fingers worse after operation to correct RIL: some negligence by HA at some point.

  • Mahon v Osborne: swab left inside patient.

  • Ratcliffe v Plymouth & Torbay HA: c. lost sensation in leg + penis after ankle operation.

  • BUT limited: only in most extreme + obvious cases (Hucks v Cole, [Ld Denning]).

  Causation

  - Factual causation: ‘but for’ test (Cork v Kirby; Barnett v K&C HMC; Wilsher v Essex AHA).

  • cumulative causes: material contribution/increase in risk (McGhee v NCB; Bailey v MOD: c. weak b/c of non-tortious pancreatitis + negligent care, choked on vomit d. liable.)

  • if result uncertain: courts flexible.

    • Chester v Afshar: c. not warned of risks, could not prove would have withheld consent d. liable anyway.

      • policy rationale: otherwise duty to warn meaningless.

    • Wright v Cambridge Medical Group: GP negligently delayed referring child to hospital, then further delay...