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Clinical Negligence Notes

GDL Law Notes > GDL Tort Law Notes

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A more recent version of these Clinical Negligence notes – written by Cambridge/Bpp/College Of Law students – is available here.

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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

Breach (1)---Standard
?????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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