#5358 - Negligence In Clinical Medicine - Medical Law

Tarasoff v Regents of the University of California (1976) 131 Cal Rptr 14 (Cal Sup Ct): P told D of his intent to kill another; he was detained on this basis. Later released when appeared rational, but after non-attendance at further sessions he went on to kill the named person.

• Majority:

  • When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.

  • Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.

  • The risk that unnecessary warnings may be given is a reasonable price to pay for the saving of lives.

  • The public policy favouring protection of the confidential communications must yield to the extent to which disclosure is essential to avert danger to others. The privilege ends where the public peril begins.

• Mosk J (Partial dissent): Thinks that the rule should only apple where violence is actually predicted.

• Clark J (Dissent): Confidentiality is required for effective treatment of these kinds of illness.

Palmer v Tees HA [1999] Lloyd's Rep Med 351 (CA): Action brought for failure to treat A who claimed that after release he would murder a child; this is exactly what happened. Further claimed that if did not abandon proximity limb in this case then that would amount to blanket immunity rule which is contrary to ECHR.

• Stuart Smith LJ:

  • There is no doubt that rules are governed by policy, but once they are established it is not open to the courts to extend or modify accepted principles simply because the facts are particularly horrifying.

  • Counsel raised question as to why a mechanic that fails to fix brakes properly can be liable to unidentified victim but psychiatrist cannot; answer is that a defective mechanical device will behave in a predictable way and human conduct will not, save in readily predictable circumstances.

  • Thought that no liability here as lack of proximity but reserved opinion on whether the appropriate test to be invoked was one of assumption of responsibility.

• Pill LJ: Dorset Yachtand Hill are binding authority for the proposition that, in circumstances such as the present, the identity of the victim is an important factor in deciding whether the foreseeability test is passed.

Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161 (CA): After having vasectomy M was advised that he would not need to use protection anymore. He later got P pregnant who brought an action for birth and eco loss.

• Peter Gibson LJ:

  • If the existence of that partner is known to the doctor and the doctor is aware that she wishes not to become pregnant by the man and the vasectomy is carried out to meet her wish as well as the man's wish, it may be said that the doctor is employed to confer that benefit on her. But that is not this case.

  • In any event, in this case no complaint is made of the vasectomy: it is only the advice following the vasectomy that the doctor gave the man that is the subject of complaint.

    • Cannot satisfy assumption of responsibility under Hedley Byrne in this case.

  • Noted that there was a possibility for abortion also; discovery at 14 weeks.

• Thorpe LJ: Thought that could not be allowed as the class of persons which P belonged to was potentially excessive in size and uncertain in character; would be different if P was his wife; in the event that she is not then it is P’s own responsibility to protect herself against unwanted conception and to take independent advice.

West Bromwich Albion Football Club Ltd v El-Safty [2006] EWCA Civ 1299: WBA had signed a player; the contract provided that prescribed medical treatment should be without expense to the player. He suffered a knee injury whilst training. E negligently recommended reconstructive surgery should be carried out. Could not play football again. Claim in contract and tort by the football club.

• Rix LJ:

  • This case is quite unlike the typical case where anadviser knows that his advice will be relied on by third parties with relevant financial interests.

    • The immediate interest here is medical, not financial.

    • WBA is interested, but principally as a good employer not as an investor in player contracts, and it appears on the scene, in the person of Mr Worth, in the form of a referring health professional, and not in a managerial or business context.

  • There is no reason to find here the proximity necessary to the creation of a duty of care. The dominant relationship is that of the doctor and his patient not the financial security of the employer.

  • Insurance against financial loss arising from the ill-health of employees, even where that is increased or exacerbated by third parties, naturally lies with their employers.

• Mummery LJ: There was no assumption of responsibility and insurance considerations point in favour of the burden lying with the employer as opposed to the doctor.

Bolam v Friern HMC [1957] 2 All ER 118: P was advised to undergo ECV for mental illness. He signed a form of consent to the treatment but was not warned of the risk of fracture involved (1/10000). No relaxant drugs were used, which would have excluded the risk of fracture. At the time, two bodies of opinion existed as to whether such drugs should be used and whether the risk of fracture should be told to a patient who is mentally ill. McNair J:

• In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. It has been said that you judge it by the conduct of the man on the top of a Clapham omnibus.

• Where there is a special skill or competence the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

• That does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.

Bolitho v Hackney HA [1997] 4 All ER 771: P had previously been admitted to hospital for breathing problems. He suffered two episodes but was not attended to and appeared to return to a stable state. Then suffered total failure, brain damage, and death. Dr claimed that the cardiac arrest would not have been avoided had he been attended to; common ground that intubation would have had to have occurred prior to final episode to be effective. Lord Browne-Wilkinson:

• A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter.

• There were, therefore, two questions for the judge to decide on causation:

  • What would Dr H have done, or authorised to be done, if she had attended? and;

  • If she would not have intubated, would that have been negligent?

• The court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. The court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis.

• The judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.

• It will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant's conduct falls to be assessed.

• Thought that in this case however, there was no liability.

Wilsher v AHA [1986] 3 All ER 801 (CA) [NB: breach not contested in HL]: P was born prematurely suffering from various problems. Doctors wrongfully inserted catheter into vein instead of artery. Issue as to whether mistakes resulted in near blindness.

• Mustill LJ:

  • The fact that in retrospect the choice actually made can be shown to have turned out badly is not in itself a proof of negligence; must remember that the duty of care is not a warranty of a perfect result.

  • Makes number of observations:

    • Where treatment is relatively new and safeguards are in the course of development, so long as the decision to embark was justifiable and with consent, should be careful to find negligence.

    • Full...