#1756 - Stuff About Duty Of Care And Exceptions - Medical Law

1. Duty of Care

• Every doctors owes a duty of care to patients in their hospital

• However, what about third parties? E.g. relatives/public – these are dealt with under Caparo principles of negligence

  • Was it reasonably foreseeable that D’s actions would cause the victim harm?

    • So if D prescribed medicine to X, who’s granddaughter then found the pills in X’s house and ate them

      • D would owe no duty to X’s granddaughter – her actions would not be reasonably foreseeable.

  • Proximity

    • WBA FC v El-Safty

      • Herring: result might have been different had WBA employed the surgeon directly and warned of the consequences of any negligence.

    • At the scene of an accident?

      • No duty unless contract of employment requires them to offer assistance

        • So GP who came across one of their patients in a car crash might be in breach of contract if they failed to assist or summon help.

      • If D begins to treat, assumption of responsibility towards them – so liable in tort

  • Public policy

    • A duty only exists if it is just and reasonable to establish one.

    • Palmer v Tees HA (dangerous sex offender patient released by psychiatrist, kills girl in his street – is there a duty to her?)

      • Stuart Smith LJ

        • While a defective machine will behave in a predictable way

          • via the laws of physics and mechanics and therefore liability is owed to wider class of people

            • a human being will not, save in readily predictable circumstances

        • For humans, it is at least necessary of the victim to be identifiable, although it may not be sufficient, to establish proximity

    • Smith v Jones [CAN]: X was referred to P to assess him, X having been told that his conversation would be privileged. X told P of his plans to rape, maim and kill prostitutes. P advised defence counsel of this, but while X pleaded guilty, defence counsel failed to introduce this evidence. P sought to breach privilege to get these facts disclosed.

      • Held

        • Three factors should be looked at in deciding whether public safety outweighs solicitor/client or doctor/patient privilege:

          • (1) Is there a clear risk to an identifiable person or group of persons?

            • Named persons/groups must be given greater weight, even if large,

              • than a general threat to the population

          • (2) Is there a risk of serious bodily harm or death?

          • (3) Is the danger imminent?

            • The nature of the threat must be such that it creates a sense of urgency.

              • This may be applicable to sometime in the future

        • Where, after consideration, the weight outweighs the right to privilege,

          • only the minimum disclosure necessary to protect public safety should be disclosed
            

Breach of duty in the medical context

• The test is modified from normal law:

  • Bolam v Friern HMC [1957]

    • McNair J

      • It is not essential for you to decide which of two practices is the better practice,

        • as long as you accept that what the D did was in accordance with a practice accepted by responsible persons;

        • And if you are satisfied that his practice is better than the practice suggested, then it is really a stronger case

  • Me: The effect of the Bolam test is that it is not enough to show that one expert would have done things differently from D – the body of opinion need not be substantial

    • C has to show that no professional body of opinion (subject to Bolithio) would have considered what D did to be in compliance with reasonable practice.

• Doctors do not have to be fully up to date

  • Bolam v Frien

    • McNair J

      • You have to consider whether it was negligent for certain action to be taken in 1954,

        • you must not look with 1957 spectacles at what happened in 1954.

  • Roe v Minister of Health [1954]:

    • A practice which is now considered bad but at the time was considered reasonable

      • Will mean that D in following the bad practice is not considered negligent

  • Crawford v Board of Governors [1953]:

    • And D does not have to be fully up to date with recent (published 6 months ago) research on practices

      • Although the advent of the internet probably means they need to be more up to date than in 1953

• The Bolithio exception

  • Bolithio v Hackney HA [1998]:

    • Lord Brown Wilkinson:

      • In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion.

        • But if, in a rare case, it can be demonstrated that the evidence supporting the professional opinion is not capable of withstanding logical analysis,

          • the judge is entitled to hold that the body of opinion is not reasonable or responsible

  • Wisniewski v Central Manchester HA: C argued that there should have been further investigations of abnormalities in the fetal heart beat. It was established that an earlier C-Sec would have avoided the injuries C suffered. The judge at first instance rejected the body of opinion which said this was fine.

    • Brooke LJ

      • The judge had heard eminent experts stating that there was a responsible body of opinion which would not have done further investigations

        • Only rarely could a judge declare that the views of experts could not be supported logically at all

        • It is quite impossible for a court to hold that the views held by doctors of such eminence cannot be logically supported at all.

  • Burne v A: M telephoned D concerned about her child who had recently had a shunt inserted to drain fluid on the brain. D did not ask further questions, but simply listened to M’s concerns. The child had a blockage of the shunt.

    • Sedley LJ

      • It was understandable for the judge to think it unacceptable that medical opinion was that it was unnecessary for the doctor to ask specific questions of this kind

        • But needs to be a retrial – judges must let experts an adequate opportunity to explain and defend common practice.

    • Ward LJ

      • Can’t dismiss acceptable practice on common sense w/o giving experts chance to defend themselves

• The duty must be exercised to the standard of the role

  • A GP can’t be expected to diagnose a condition only an expert consultant would diagnose

    • But they might be negligent for failing to refer on a patient if they had particularly unusual symptoms.

    • But the fact that D is inexperienced, a student or old does not modify the duty of care expected from the role D is in.

  • Student following the instructions of senior colleagues might have a defence

    • Wilsher v Essex AHA [1986]:

      • Wilson LJ

        • The duty of care is not the “team” standard – this would impose the same duty on the student nurse as the consultant

          • However, nor can the duty be tailored to the personal doctor –

            • otherwise right to complain will depend on roster and who they happen to get.

        • This true duty of care is not related to the individual, but to the post which he occupies.

          • it must be recognised that different posts make different demands.

      • Browne Wilkinson VC:

        • In my view, the junior doctor was not negligent.

          • H’s evidence shows that junior doctors of D’s experience in special care baby units were in general unaware of the significance of such loop.

          • Moreover, D called in his superior, Dr. K to check what he had done.

        • However, the case Dr K is quite different. He was an experienced registrar with six years' paediatric experience,

          • His shortcomings in failing to spot the absence of the "loop" cannot be put down to inexperience

            • And the evidence discloses a negligent failure.

  • So long as it’s not blatantly wrong

    • Horton v Evans [2006]: C was misprescribed by eight times the normal dosage medication which she had been previously been prescribed seven times before. The doctor admitted liability, and C also sued the pharmacists, alleging that they had been negligent in failing to question the prescription and just dispensing it.

      • Keith J

        • C had had previous prescriptions dispensed by the pharmacy, of the same strength, for 16 months.

          • Such a significant increase raised at the very least the possibility that the prescription might be inaccurate.

            • The Branch procedures manual covered this situation, stating that previous records should be scrutinised and the change queried.

            • And common practice is that they should consider whether the medication prescribed is suitable for...