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NEGLIGENCE IN CLINICAL MEDICINE
1. Duty of care to third parties: (a) Dangerous psychiatric patients, and confidentiality:
* 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. o Majority:o o
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  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. o Stuart Smith LJ:o
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 Yacht and 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.
(b) Unwanted pregnancy by patient's partner:
* Goodwill v British Pregnancy Advisory Service  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. o 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.o
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.
(c) To the patient's employer:
* West Bromwich Albion Football Club Ltd v El-Safty  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. 1
o Rix LJ:
? This case is quite unlike the typical case where an adviser 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.
2. Standard of care
Bolam v Friern HMC  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: o 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. o 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. o 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  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: o 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. o 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  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. o 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. 2
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 allowance must be made for treatment carried out in battle conditions.
A doctor is not negligent simply because someone else would have taken a different approach.?
Refuses to make allowance for inexperience; tort is based on the act done, and not the quality of actor. Interprets ratio in McGhee as:
* If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue, and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way, and if one party does conduct himself in that way, and if the other party does suffer injury of the kind to which the injury related, then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.
* Applied to the present case means that P succeeds on point of causation. Glidewell LJ: Agrees that there should be no allowance for inexperience as would defeat number of actions; there is no reason in principle which compels that finding either; rejects concept of team negligence. Browne-Wilkinson dissent on the basis that should take into account the reason for a person's position; also thought that this case is different from McGhee in that there was a single causal agent there but not here.
Burne v A  EWCA Civ 24: P had a shunt fitted to drain fluid from brain. When he became ill mother phoned doctors who asked open questions (accepted method of diagnosis) and diagnosed him incorrectly. Appeal against finding of the judge that the method of questioning was not appropriate where child was known to be vulnerable. o Sedley LJ:o
This limb of the law is about the exercise of clinical judgment. It needs to be related, therefore, to the kind of judgment which was in issue here, which was not a judgment as to what was wrong with the child, but his judgment as to how to go about getting the relevant information from the mother. This skill, while an important aspect of clinical practice, sits at the threshold rather than at the centre of it.
? Essence is that the judge must give a proper opportunity for the experts before he dismisses their views. As this was not done, case sent for retrial. Ward LJ: Agreed that the experts should have been given opportunity to explain their practice before a judge can proceed to dismiss their views and rely upon his own notion of common sense judgement.
M Brazier and J Miola, "Bye bye Bolam: A Medical Litigation Revolution (2000) Med L Rev 85: o Bolam has generally left the medical profession to set its own standards, which will, for all practical purposes be beyond the scope of judicial intervention; in 6 cases that have gone to the House of Lords on this point, in none has the patient succeeded. This form of philosophy has permeated other areas of law, notably;
? The best interests test for those who lack capacity;
? An assessment of Gillick competence. o The concern is that the above treatment does not accord with the courts treatment of experts in other professions- cases concerning architects and accountants have had evidence assessed against the logical and reasonable standard as perceived by the court. Thus, the Bolam approach essentially means that important moral and social questions are medicalized- all human rights considerations are squeezed out of healthcare law. o Post Bolitho it seems that the day of the unfettered autonomy of the individual consultant is now over; supported by bad press for the profession, and the articulation of new guidelines by new bodies such as NICE. Bolitho has had a marked impact in the following cases:
? Hucks v Cole;
? Marriot v West Midlands HA o This approach combined with the new trend towards publishing of guidelines should furnish a new role for the courts which accords with their approach where other professionals. The wishes of the patients and the circumstances of the case will have a significant impact on whether guidance should be followed- this should prevent guidance become a set of rigid rules. The existence of guidance simply requires that a doctor justifies and explains his decision to depart from it. Any claim that this will increase litigation is speculative. o Bolam is already being reigned in where best interests are concerned, with new proposals by the law commission. This marks a new focus on the rights of patient in culture of the proliferation of documents emphasising obligations on the part of medical professional. Further supported by the Human Rights Act. 3
K Keren-Paz, 'Liability Regimes, reputation loss and defensive medicine' (2010) Med LR 363: Seeks to advocate a strict liability regime on the basis that it more appropriately deals with reputational problems. Litigation might trigger additional reputation loss in the following ways: Publicity for the case: Fact finding services abandoned where settlement achieved; By clarifying the social meaning of the disputed conduct/providing normative guidelines. The assumption that a positive finding of liability against the defendant increases the defendant's reputation loss could be disputed; the magnitude of the reputation loss generated by court findings of liability will vary. A finding of liability under negligence will almost always generate greater reputation loss than equivalent finding under strict liability. Since the market cannot sort out negligent defendants from non-negligent ones when defendants are found liable under strict liability, the market spreads the reputation loss generated by instances of negligence equally across attributing to them equal statistical chances of having been negligent. o More empirical research is necessary to answer the question which regime produces greater reputation loss. o One result of adverse selection caused by strict liability's pooling effect is that the negligent physician will be underdeterred since she is subsidised by the cautious physician which may make negligence regimes seem superior. However, any evaluation of the regimes must take into account the likelihood of judicial error in determining whether a given defendant met the required standard of care.
? A shift to strict liability can be justified, provided its benefits in terms of preventing over-investment in precaution by cautious physicians outweigh the loss caused by the diluted incentive given to negligent physicians to invest in precaution. If courts are relatively error proof and the deterrent effect of reputation loss under negligence is close to optimal, negligence seems superior to strict liability since it avoids the problem of cautious physicians bearing some of the reputation loss due to negligent physicians. In contrast, if, for example, negligence liability results in over-deterrence of physicians and a shift to strict liability would result in a decreased investment in precaution, strict liability is preferable. The combination of the following factors suggests that cautious physicians might prefer strict liability due to its loss-spreading potential in spite of the problem of adverse selection: Even a cautious physician might at times be negligent; indeed, rationale behind purchasing insurance. Cautious physicians might fear judicial error and a finding of negligence when in fact there was none. Courts might err in determinations about negligence since they do not possess the technical expertise needed to solve questions of medical malpractice. There are two problems with the argument that Bolam suffices to deal with this issue: It ignores the asymmetry involved in the chances of being found liable for over-/under-testing. Physicians have an incentive to over-test since the chances of being found liable for damage caused from over-testing (in the far future) is extremely low due to the difficulty of proving causation. On the other hand, over-testing reduces the chance that an accident in the near future will happen: an accident which might produce liability and reputation loss. Under Bolitho v City and Hackney HA a physician who followed an existing practice might (rarely) nevertheless be found negligent. The bias courts might have towards a misfortunate patient who would be left without compensation if there is no finding of liability. Even an unmerited claim that the given professional was negligent is likely to trigger reputation loss. All physicians are likely to be especially risk averse regarding reputation loss, since they are not likely to be able to insure themselves against such a loss. Strict liability, then, might function as a form of insurance against reputation loss. Cautious defendants' preference of strict liability over negligence depends on their degree of risk aversion and on the size of the premium they have to pay for the shift to strict liability. Since the reputation loss to a defendant found liable is more significant under a negligence regime than under strict liability, a negligence regime provides a stronger incentive for the parties to settle.
R Mulheron, 'Trumping Bolam: a critical legal analysis of Bolitho's "gloss"' (2010) 69 Cambridge Law Journal 69: 609: o Perceived problems with Bolam:??
Perception that the medical profession was above the law; Did not protect the community against unsafe medical practice; Contrary to a rights-based society; Judicial scrutiny was lesser than that which other professions were subjected to. Points of interest regarding Bolitho:In cases where it is applied very little authority is relied upon; seems to be case-by-case basis. 4
Have used it to express a preference for evidence of the claimant's witness (not clear why?) Operation is generally regarded as a rare occurrence. Court now seems to look to whether the expert testimony:o
Took account of a clear and simple precaution which was not followed but which, more probably than not, would have avoided the adverse outcome;
? Considered conflicts of duties among patients, and resource limitations governing the medical practice;
? Weighed the comparative risks/benefits of the medical practice, as opposed to other course(s);
? Took account of public/community expectations of acceptable medical practice;
? Was correct in light of the factual context as a whole;
? Was internally consistent;
? Adhered to the correct legal test governing the requisite standard of care. If the answers to any of these is no then a red flag should arise, because it then constitutes a ground upon which English courts, over the past decade, have been prepared to reject peer medical opinion as being indefensible. In an age when patient-based rights seem to be in the ascendancy, it is worthwhile emphasising that the medical profession has rights too; one of which is a clear exposition and application of legal principle as to when, and why, Bolam evidence will not carry the day and absolve a defendant doctor of breach.
T Douglas, "Medical Compensation: Beyond 'no fault'" (2009) MLR 30: Suggests that arguments deployed by the proponents of no-fault systems in fact support the abandonment of injury compensation altogether. The dispute should be recast as one about whether medical injury compensation systems should exist at all. o Comments on fault regime:o
Though tort systems are committed to the fault criterion, they fail to impose the costs of injury compensation on those at fault, both because of the widespread (and in some cases compulsory) uptake of liability insurance by those who are likely to cause injuries, and because the legal tests for negligence are poor proxies for actual moral fault.
? Though the fault criterion are often defended on the ground that it creates a disincentive to careless action, there is little evidence to support the claim that tort systems reduced the frequency of injuries.
? Any supposed advantages of the tort approach come at a considerable cost: the court-based process is expensive to administer, the long process of a case may impair the rehabilitation of injured claimants, and the susceptibility of the procedure to chance means that the outcome is difficult to predict. The fairness-based argument for no-fault runs as follows: to compensate the victims of wrongfully caused medical injuries while excluding the victims of faultlessly caused medical injuries is unfair to the latter.If we are prepared to invoke the argument in support of no-fault medical injury compensation, then we should also invoke it in support compensating those who suffer natural misfortune.Indeed, it seems possible that the argument from fairness could be used to defend the compensation of all persons suffering disadvantages that were not within their own control.o
Seems that persons who support no fault envisage that some victims of medical wrong should be compensated, fairness then demands expansion of the scheme to others who have suffered. Major difficulties would surround an attempt to include the naturally incapacitated within the schemes:?
Cost; would then be offset by lower compensation payments; The benefits provided by an expanded system would arguably have more in common with the benefits provided by social security and public healthcare systems.
? Thus, a scheme supported by the argument from fairness would be more aptly described as a supplementary social security and public healthcare system than as an injury compensation scheme. Some responses to above:?
A line demarking the limits of compensation cover has to be drawn somewhere, and claim that existing no-fault schemes draw it in as good a place as any.
* This would perhaps be plausible if there were no positive reason to draw the line at any particular location, but according to the fairness argument, there is such a reason: we should draw the line so as to include all whose situation is relevantly similar to those already covered.
* This would entail including those incapacitated through natural misfortune, as well, perhaps, as those disadvantaged in any other way that was not within their control. An advocate of no-fault compensation might turn to a pragmatic political argument, claiming that, despite being difficult to justify, the existing boundaries of no-fault schemes are at least widely accepted in countries that operate such schemes. 5
*However, this claim would be at odds with the evidence: in both New Zealand and Sweden defining the boundaries of medical injury compensation has been a persistent problem. Perhaps a more promising line of response would see the proponent of no-fault medical injury compensation distancing herself from the fairness-based argument altogether and defending her preferred system on independent grounds.
* As it stands the author does not accept that these are viable to the extent of demonstrating that tort law is better than no regime.
* Also notes that one can feel remorse without having to pay compensation
3. Forms of breach of duty (a) Obtaining consent to medical treatment: negligent non-disclosure of risks, failure to warn and misstatement regarding the treatment
* Sidaway v Bethlem Royal Hospital  AC 871: P underwent an operation. The operation, even if performed with proper care and skill, carried an inherent, material risk, which was put at between one and two per cent, of damage to the spinal column and the nerve roots. In consequence of the operation P was severely disabled; damages claimed for failure to warn of the risk. o Lord Bridge:o
Rejects the doctrine of informed consent as giving insufficient weight to the realities and complexities of the doctor/patient relationship, being too imprecise and burdensome upon the doctor.
? Thinks that Bolam should be applied; likely to cover the case where there is a failure to warn of a substantial risk (10%?) of grave adverse consequence, but primarily a matter of clinical judgement. Lord Templeman:o o
An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctor's contractual obligation to have regard to the patient's best interests.
? A patient may make an unbalanced judgment because he is deprived of adequate information.
? A patient may also make an unbalanced judgment if he is provided with too much information and is made aware of possibilities which he is not capable of assessing because of his lack of medical training, his prejudices or his personality.
? In order to make a balanced judgment if he chooses to do so, the patient needs to be aware of the general dangers and of any special dangers in each case without exaggeration or concealment. Lord Diplock: Thought that should simply apply the Bolam test to failure to warn cases; no dissection of duty. Lord Scarman (Dissent):??*
It would be a strange conclusion if the courts should be led to conclude that our law, which undoubtedly recognises a right in the patient to decide whether he will accept or reject the treatment proposed, should permit the doctors to determine whether and in what circumstances a duty arises requiring the doctor to warn his patient of the risks inherent in the treatment which he proposes. A doctor who operates without the consent of his patient is, save in cases of emergency or mental disability, guilty of trespass to the person: he is also guilty of the criminal offence of assault. The doctor's duty can be seen to be one which requires him not only to advise as to medical treatment but also to provide his patient with the information needed to enable him to consider and balance the medical advantages and risks alongside other relevant matters of which the doctor will not be informed. If one considers the scope of the doctor's duty by beginning with the right of the patient to make his own decision whether he will or will not undergo the treatment proposed, the right to be informed of significant risk and the doctor's corresponding duty are easy to understand. Ideally, the court should ask itself whether in the particular circumstances the risk was such that the prudent patient would think it significant if he was told it existed.
* The critical limitation is that the duty is confined to material risk.
Pearce v United Bristol Healthcare NHS Trust (1998) BMLR 118: P was expecting her 6th child, who was late. She went to see a consultant and begged for an induced labour or C-section, but he decided that she should wait. He explained that the other procedures would be risky and she accepted that advice. The baby died. Issue as to whether D should have advised P that there was an increased risk of stillbirth as a result of the delay in delivery. Lord Woolf: o If there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt. 6
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