A more recent version of these Clinical Negligence notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Tort Law : Clinical Negligence Who to sue
? (1) Medical professional at fault
? (2) Hospital/health authority vicariously for medical professional's negligence, if employee
? (3) Hospital/HA directly. Loss
?????PI only (re duty of Dr to patient); and can claim consequential economic loss (eg loss of earnings).
?????No duty for pure economic loss (Kapfunde v Abbey National, re not getting job due to negligent medical reference from occupational therapist, no DoC).
?????Courts reluctant to recognise wrongful life claims: o McFarlane v Tayside Health Board: court compensated for pain & suffering of pregnancy; but not for costs of bringing up child. 'Pleasure of a child' = 'incalculable'. No duty. o Rees v Darlington: sterilisation didn't work; compensation for pain & suffering of pregnancy; not for bringing up child; gave PS15,000 standard award for wrongful life claim. DoC
? Professional duty (White v Jones) o Solicitor to clients: White v Jones.
?????DofC between medical professional and patient: Cassidy v Ministry of Health o starts when medical prof accepts patient for treatment.
. o Also applies to emergencies ? Barnett v Chelsea & Ken: in emergency, DoC owed once treatment undertaken by medical professional, (eg those entering A&E).
? Not always, eg no DoC re economic loss, Kapfunde v Abbey National: No DoC re Dr providing advice for occupational health report, economic loss claim.
? Kent v Griffiths, ambulance service, DoC to respond, and within 'reasonable' time.
? DoC re writing clearly and checking prescriptions, Prendergast v Sam & Dee: duty to 'write clearly and legibly'
[Dr 25% liable; pharmacist 75%].
? DoC to prevent patients harming themselves/others o Clunis v Camden & Islington HA: had mental disorder; discharged; murdered somebody. o Goodwill v British Pregnancy Advisory Service: vasectomy failed on man; woman fell pregnant; mother sued for cost of bringing up daughter; no DoC to third party, lack of proximity.
1 ?DoC on Hospitals/Health Authorities: o Duty = to provide the services of medical professionals with sufficient skill & experience. o Wilsher v Essex HA; Kent v Griffiths: Duty to provide doctors or services of a sufficient level of competence/training/skill. o Bull v Devon AHA, hospital/patient, direct DoC, re mismanagement of system in hospital, long wait between deliveries of twins; (not about lack of resources). DoC includes: Doctors trained correctly in right area; training ancillary to running of hospital; supervision in place for doctors/staff. o Johnstone v Bloomsbury HA: staff overworked, breach. o Resources/right to treatment, no absolute duty on HA to provide treatment o R v Cambridge HA, ex p Child B (a minor): HA declined to continue experimental treatment re leukaemia; high cost of treatment (PS75,000); chance of success between 10-20%; no absolute DoC to provide every treatment.
? Funding/resource issue, courts unlikely to interfere. No DoC for wrongful life claim: o McFarlane v Tayside o Rees v Darlington
?????Bolam, facts: re electro-convulsive therapy (ECT), fractured pelvis; should relaxant drugs be used; 2 bodies of opinion.
?????Limb 1, standard = professional standard (Bolam; Wilsher) o Bolam v Friern---professional standard, reasonably qualified Doctor. o Wilsher v Essex:
? act not actor, act is medical so standard =
reasonable qualified Dr.
? Junior/training Doctor no lower standard, test is objective
? Bolam standard is uniform. Eg if surgery, 'reasonably competent surgeon'.
? But if Junior Dr seeks advice from more senior Dr?
liability might fall on Senior Dr for lack of supervision (Wilsher) o Bull v Devon AHA: HA could be liable for putting junior Dr in situation with no supervision. o Standard of consultants---Ashcroft v Mersey. o Bolam standard, remember specific to the act: eg 'reasonably competent ICU nurse' , 'reasonably competent surgeon' etc.
2 ?????Standard for hospitals/health authorities: Reasonable competent hospital/health authority (Bolam; Bull v Devon; R v Cambridge HA, ex p Child B; Wilsher v Essex). Breach (2)---Breach, fallen below standard, Bolam test
? ?? ? Bolam test: not guilty of negligence if he has 'acted in accordance with a practice accepted as proper by a responsible body of medical opinion'.
? ?? ? De Freitas v O'Brien, doesn't have to be a majority of opinion, merely an acceptable body.
? ?? ? Courts won't choose between professional opinions: o Maynard v West Midlands RHA: decision to go ahead with procedure rather than wait for test results. Applied Bolam test--Complexity of decision/procedure---court won't challenge opinion.
? ?? ? CF, now, Courts might choose, if the decision is illogical or unsafe o Bolitho v City & Hackney HA: obiter, Lord BrowneWilkinson, might choose. Re Dr, summoned to attend baby with breathing difficulties; didn't attend. Experts said would not have attended. If the professional opinion 'is not capable of withstanding logical analysis'---will be 'rare'. If illogical/unsafe. o Marriott v West Midlands HA: obiter, woman fallen downstairs; whether GP should have sent her to hospital re head injury. There was no expert opinion defending the action, so wasn't consider; but obiter: if there was, might deem the opinion illogical. o Actually applied---Taaffe v East of England Ambulance Service NHS Trust: patient had chest pains; ambulance called, didn't advise going to hospital. Could chose between bodies of opinion, said one (not sending to hospital) was not reasonable/logically defensible.
? ?? ? Distinguishing these cases, re whether courts will challenge professional opinion o Bolam: complex procedure, risk analysis. o Maynard: complex procedure, professionals gave good reasons. o CF Bolitho: one of reasons for not attending was that pager wasn't working? not a complex medical factor, more procedural/operational. o Marriott: GP decided not to refer to hospital, head injury? seemed irrational. o Taafe: failure to send to hospital. o Make point that courts challenging professional evidence/opinion will only be done very rarely. o So courts might want to know (Bolitho; Marriott; Taafe), re breach: how he reached decision, what are reasons 3
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