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BCL Law Notes Medical Law and Ethics Notes

Causation In Medical Negligence Notes

Updated Causation In Medical Negligence Notes

Medical Law and Ethics Notes

Medical Law and Ethics

Approximately 82 pages

A guide to some of the key topics in the BCL course on Medical Law and Ethics.

This features numerous academic positions, case summaries, arguments and up-to-date statistics pertinent to some of the substantial topics in this module (eg. abortion, autonomy, medical negligence)...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Medical Law and Ethics Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

CAUSATION IN MEDICAL NEGLIGENCE

OPENING

  1. Thomson v Bradford – even if C can establish negligence, this isn’t enough

TEST

  1. Barnett v Chelsea & Kensington

  • But for test applies

  • FACTS: Doctor had turned away a patient with stomach pains, who later died of arsenic poisoning. Doctor had breached duty of care, however, evidence showed that on the balance of probabilities, even if the doctor had seen the patient he would not have been able to save him.

EXCEPTION 1: WHERE IT’S UNCLEAR WHETHER INJURY CAUSED BY D OR SOME OTHER CAUSE

  1. law in not clear on this, but recent cases seem to suggest that if D materially contributed towards the injury, he’s liable

  2. Wilsher v Essex – HL where there were 5 possible causes of C’s injury, Doctor’s breach couldn’t satisfy causation and thus D wasn’t held to be negligent THEN

  3. Fairchild v Glenhaven HL

  • asbestos exposure from a number of employers, all held to liable as all had materially increased the risk of harm to employee,

  • but HL approved Wilsher as otherwise, according to Lord Hoffman, there would be a ‘massive increase in the liability of the NHS’ THEN

  1. Wooton v J Doctor – CA – more recent decision left as open whether Fairchild can apply to medical case THEN

  2. Bailey v Ministry of Defence CA – Waller LJ said that ‘one cannot draw a distinction between medical negligence cases and others’ THEN

  3. Canning-Kishver – CA – material cause was applied here to 2011 case

  4. ME: Essentially, where a number of breaches of duty could have caused C’s injury, doctor’s negligence being one of them, doctor won’t be found liable according to Wilsher. Fairchild suggested this was otherwise in personal injury, but upheld an exception seemingly to medical situations for a policy reason (too much litigation for the NHS). Fairchild is a HL case so this still stands. However, there have been more recent CA decisions like Bailey which suggest that Fairchild rule should apply to medical law also. Also, Canning-Kishver seems to apply this material cause. So Herring thinks that ‘but for’ isn’t necessary, it’s sufficient to show material cause

FAILURE TO WARN

  1. Chester v Afshar

  • but for couldn’t be satisfied, but HL modified the test on public policy grounds, to reflect the reasonable expectations of the public that they be warned about associated risks so that they make informed decisions (even where only a 1-2% chance of significant nerve damage)

  • but for wasn’t satisfied because even if C was told, she would still have undergone the procedure, except just at a later date

LOSS OF CHANCE

  1. If properly cared for C’s illness would have been diagnosed.

  2. Hotson v E Berkshire

  • Trial judge gave C 25% damages based on 25% loss of chance

  • HL overturned

  1. Gregg v Scott HL

  • Negligent misdiagnosis meant that C’s...

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