#4661 - Professional Clinical Negligence - GDL Tort Law

• Professional negligence means negligence within the professional sphere

• Main difference to ordinary negligence is establishing whether a particular professional duty of care has been breached

Functions:

1. Make professionals more accountable

2. Threat of litigation ensures that professions maintain high standards of practice

3. Explanations when procedures go wrong

4. Compensation to wronged parties

5. Degree of retribution

Growth in professional negligence claims:

• Change in relationship btw professional and client – particularly within clinical sphere – scepticism and a willingness to challenge professionals

  • E.g. childbirth particularly high – relatively dangerous and people have high expectations

• Kennedy & Grubb – Principles of Medical Law:

1. Increased expectation of patients

2. Development in drugs/science

3. Increased knowledge of rights/law

4. Increased assistance with claims

5. Increased pressure on doctors

6. Influence from abroad (US)

The Duty of Care

• Professional duty : White v Jones

  • Duty owed by a solicitor to his/her clients – White v Jones; Ross v Caunters

• Duty owed by a doctor to a patient: Cassidy v Minister of Health; R v Bateman – Lord Hewitt – ‘if he accepts the responsibility and undertakes the treatment and the patient submits to his discretion and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment’

• Don’t assume doctor always owes duty of care - e.g. where a doctor provides advice for occupational health report – no direct doctor-patient relationship and duty to prevent economic loss does not exist – Kapfunde v Abbey National plc (company doctor – duty was to the company)

• Emergencies:

• once responsibility is assumed and treatment has been undertaken, a duty of care is owed: Barnett v Chelsea & Kensington HMC

• Duty to assist:

• No duty to the world at large (Re F (Mental Patient: Sterilisation))

  • (Re F) also authority for the fact that doctors must act in the best interest of the patient: patient could not give consent to sterilisation but doctor not in breach when he went ahead as it was in the patient’s best interest

• But: GP’s do owe duty of care to any patient on their list under statutory law

• Also there is an obligation to assist under the GMC’s code of practice and there are legal disciplinary powers from parliament to enforce this

• Duty to prevent patients from harming themselves and or others and the rights of third parties:

  • Clunis v Camden & Islington Health Authority: patient (C) had a mental disorder, was discharged from hospital and went on to murder somebody ; claim vs. the health authority for failing to provide appropriate care – but was not allowed to bring a claim arising from his own unlawful act

  • Goodwill v British Pregnancy Advisory Service: vasectomy patient told he didn’t need to use contraception – 3 years later a woman fell pregnant with his child and sued for the cost of bringing up the daughter, reduced income etc. – there was no duty of care – lack of proximity – generally no duty to a third party

• Duty to write clearly:

• Prendergast v Sam & Dee Ltd: doctor was found to be jointly liable alongside a pharmacist for the incorrect dispensing of a drug – doctor’s handwriting could not be deciphered (apportionment – pharmacist was more to blame on the facts)

• Duty of Care on Hospitals/Health Authorities:

  • Duty to provide the services of medical professionals with sufficient skill and experience

  • Wilsher v Essex and Griffiths v Kent Ambulance Service: failure to provide doctors or services of a sufficient level of competence could be regarded as a breach of the duty of care

  • Bull v Devon AHA: catalogue of errors – mismanagement (not about lack of resources so within the jurisdiction of the court)

  • Johnstone v Bloomsbury Health Authority: staff were overworked – breach by the health authority

• Duty of Care and the right to treatment:

  • Clinical decisions as to treatment should be for medical professionals and not the courts

  • Courts cannot interfere with policy issues – allocation of resources: these should be left to the executive (limited resources and infinite wants)

  • R v Cambridge Health Authority ex p Child B (a minor): local health authority declined to continue experimental treatment on minor dying of leukaemia – cost of treatment was 75,000 – chances of success were between 10% and 20%: Bingham MR – would be unreasonable to impose an absolute duty on health authority to provide every treatment

• Wrongful life:

  • McFarlane v Tayside Health Board – check lecture

Breach of duty of care

• Reasonable man test (“The Activity test”) – Nettleship v Weston (‘learner driver’ case) : slightly modified

• C must show that the clinical professional has taken a course of action which would not have been acceptable to any reasonable body of medical opinion (“The Bolam Test”)

Bolam v Friern Hospital Management Committee

• C required treatment for depression: 2 bodies of medical opinion as to the treatment:

  • McNair, J – ‘’a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art’

  • Judgement approved by the Lords

• Justification for Bolam by Lord Scarman in Maynard v West Midlands R.H.A – ‘there is seldom one answer exclusive to all others to problems of professional judgement’

• Professionals are judged by the standard of the ordinary skilled man exercising and professing to have special skills (not the man on top of the Clapham omnibus): courts make reference to professional guidelines in order to determine standards – the HL refused to choose one professional opinion over another

Level of information as to the “risks” a patient should expect to be told about

• Sidaway v Board of Governors of the Bethlem Royal Hospital: Surgeon failed to warn patient of small risk (1%) of damage to spine during operation; patient consented and operation was performed with all due care and skill; injury materialised leaving the patient diabled

  • HL applied Bolam: held that the surgeon was NOT liable – had conformed with a reasonable body of medical opinion which would not have warned of the risk

  • Lord Bridge: said that 10% risk of stroke arising from a medical procedure would be a situation whereby ‘a disclosure of a particular risk was so obviously necessary….that no reasonably prudent medical man would fail to make it’

• Important that the patient in Sidaway had NOT specifically asked the surgeon about the risk – had she done so their Lordships said that the doctor would have been obliged to answer ‘truthfully and fully’

  • Applied in Chester v Afshar (HL)–here the C specifically asked her consultant of the risks inherent – surgeon failed to disclose very small risk of paralysis, answering her question with ‘well I have never crippled anyone yet’: C suffered nerve damage and HL found D to be in breach for failing to warn for the risk – however slight it might be

• Courts will also take into account the emotional state of the patient when being told the medical risks involved: Pearce v United Bristol Healthcare NHS Trust

Application of Bolam:

• Handwriting (Prendergast)

• Use of alternative medicine (Shakoor v Situ)

• Experimental Medicine (Simms v Simms)

• Distinction between negligence and error of judgement – Whitehouse v Jordan – CA reversed the trial judge’s decision of negligence

  • Senior registrar had unsuccessfully delivered child by forceps – pulled on the baby 6 times in 25 minutes

  • CA reversed decision of negligence – whether an error is negligent depends on the nature of it – to determine all errors of judgement as negligence would be like holding a dagger to doctors’ back

• What constitutes a ‘reasonable body’ of opinion:

  • Does not have to be the majority - but an acceptable body

  • Can be very small – for example in De Freitas v O’Brien and Connolly – a body was 11 consultants out of 1000

Criticisms of Bolam

1. Weighted too heavily in favour of the defendant (professionals)

2. Means by which professionals protect themselves - ‘conspiracy against the laity’ (G.B Shaw)

3. Allows professionals to determine their own standard of care

4. Allows standards to be set too low: in Bolam itself the approach taken was generally frowned upon

5. No precise guidelines as to what constitutes a reasonable body of opinion

6. Bolam test : said to be descriptive (what is actually done) rather than normative (what should be done) which is the basis for general negligence claims

Challenges to Bolam Test

1. Can a judge make a choice between different bodies of medical or professional opinion?

• It seems that a judge can initially decide whether a specific body is reasonable , although this powe would only rarely be exercised

• Lybert v Warrington Health Authority: warning about the possibility that a sterilisation operation may fail was held to be inadequate despite representing standard procedure

• Thomson v James and Others: GP failed to observe government advice about informing parents to use the MMR vaccination on children – child became brain damaged – doctor was found to be negligent for failing to follow standard practice as set by Department of Health

2. When will the courts state that the deviation from standard professional practice is to be regarded as negligence?

• Depends on the profession – more lenient in medical professions (deference given to medical opinions)

• Courts do not simply look at majority

• Proliferation of Codes of Practice, Guidelines and Protocols – more emphasis will be placed on standard practice in the future

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