Clinical Negligence

Question 1

Statutory Duty of Candour

Answer 1

Introduced in 2014 in response to investigations.
Requires registered providers and registered managers (known as ‘registered persons’) to act in an open and transparent way with people receiving care or treatment from them.

Para 8 of Regulation 20 –
Harms which…In the reasonable opinion of a healthcare professional, could result in or appears to have:
* resulted in the death of the person - directly due to the incident, rather than the natural course of the person’s illness or underlying condition
* led to the person experiencing severe harm, moderate harm or prolonged psychological harm.

Question 2

Who to claim against?

Answer 2

Can bring claim in negligenc against a doctor if they are practising independently.
If committed by health service employee - can claim against either the individual or the hospital or both.
Liability of hospital can be:
1. Vicarious Liability
2. Direct Liability

Question 3

Agency/locum staff? Jehovah’s witnesses v BXB [2023]

Answer 3

Hospital could be vicariously liable for agency/locum staff:
1. Is the relationship between hosptial and agency worker one of employment or akin to employment?
2. Was the wrongful conduct so closely conencted with acts that the agency worker was authorised todo that it can be fairly and properly regarded as done in the court of employment.

Question 4

Vicarious Liability

Answer 4

Employers of healthcare professionals in NHS will be vicariously liabile for the acts and omissions of their employees in treating patients in the course of employment.
Established in:
Gold v Essex County Council [1942]
Cassidy v Ministry of Health [1951]

Question 5

Direct Liability

Answer 5

Organisations may owe a direct liability where harm has been the result of a series of systems or managerial, as opposed to clinical, errors.
-> E.g., failure to train or supervise properly (Wilsher v Essex [1988])

Organisation can be held to remain liable for its breach even where they have delegated the performance of certain tasks – very fact specific.

Question 6

Duty of Care

Answer 6

Donoghue v Stevenson [1932]

Question 7

Darnley v Croydon Health Services [2018]

Answer 7

Reception has duty not to mislead patient about waiting times – should have given him full information. Hospital in breach.

Question 8

Good Samaritans?

Answer 8

No duty to rescue in English Law → e.g., if doctor does not respond to a call for a doctor in public the doctor incurs no liability (failure to do so may breach professional code of practice though)
If doctor DOES go to sick person’s aid, they undertake a duty to this sick person and may in theory be liable if their skill fails them (but any court will take into account the circumstance in which the doctor volunteers to help).

Question 9

Bolam v Friern HMC [1957]

Answer 9

Standard of care -> the standard of the oridinary skilled man exercising and professing to have that special skill.

Question 10

Wilsher v Essex AHA [1957]

Answer 10

No allowance made for inexperience.
E.g. junior doctors held to same standard.

Question 11

Jones v Manchester Corporation [1952]

Answer 11

If you do not know how to do it all → call more experienced practitioner then you have discharged your duty to them.

Question 12

Maynard v West Midland RHA [1985]: The role of expert opinion

Answer 12

If two professional bodies are of different opinions a judge is not free to prefer one body over another.

Question 13

De Freitas v O’Brien [1993]

Answer 13

The responsible body need not be large in order to satisfy Bolam test.

Question 14

Roe v Ministry of Health

Answer 14

Defendant is to be judged by the state of knowledge at the time the alleged breach took place (and not at time of trial).

Question 15

DF Health Care v St George’s NHS Trust [2005]

Answer 15

Failure to follow professional guidelines/protocols can be used to demonstrate negligence unless the defendant can show good reason for departing from them.

Question 16

Bolitho v Hackney Health Authority [1998]

Answer 16

Court must be satisfied that the professional body of opinion (relating to reasonable standard of care) must be capable of withstanding logical analysis → adds ‘gloss’ to Bolam.

Question 17

The ‘But for’ Test - Causation

Answer 17

Claimant must establish that breach of duty CAUSED injury. But for the breach -> they would not have suffered injury.

Question 18

Standard of Proof for causation

Answer 18

Must be more likely than not (more than 50%)

Question 19

Chester v Afshar [2005]

Answer 19

Claimant said had she been informed of risks, she would not have consented that day (but would have a different day)
The majority held in her favour – giving proper force to patient’s rights to autonomy and dignity justified ‘a narrow and modest departure from traditional causation principles’.

Question 20

Material Contribution

Answer 20

McGhee v National Coal Board: claimant is entitled to damage for injury if he proves on the balance of probabilities that the breach of duty contributed to it causing the injury

Question 21

Fairchild v Glenhaven [2003]

Answer 21

Where it is impossible to identify which among a group of Ds was the causal action, all will be liable.

Question 22

Barker v Corus [2006] (Material contribution)

Answer 22

Only liable for their share of risk.

Question 23

Bailey v MOD and Portsmouth Hospital [2008]

Answer 23

In particular circumstances ‘material contribution’ to the claimant’s injury was sufficient to establish causation in clinical negligence claim – do not need to prove strict but for test.

Question 24

Loss of Chance of recovery

Answer 24

Loss of chance claims will not succeed
where the origional chance of recovery was less than 50%.
Hotson v East Berkshire HA [1987]: To recover damages must establish at least a 51:49 likelihood that but for the negligent delay in treatment, he would have made an uncomplicated recovery.
Gregg v Scott [2005]

Question 25

Paul and Others v Royal Wolverhampton NHS Trust [2024]

Answer 25

Failure of diagnosis and treatment cannot lead to relative to claim damages if they witness the death of a family member.

Question 26

Reasonbly Foreseeable

Answer 26

Damage must be reasonably foreseeable and not too remote – The Wagon Mound [1961]

Question 27

Criminal Law and Medicine

Answer 27

Gross negligence causing death can lead to prosecution for gross negligence manslaughter
Limitations:
* Only available if patient dies.
* Unjust to accused as depends on ‘moral luck’ – 2 doctors could make same mistake; one patient may die and one may survive with extrema brain damage

Question 28

R v Bateman (1925)

Answer 28

Sets out test for GNM
Doctor must have demonstrated ‘such disregard for the life and safety of others as to amount to a crime against the State and conduct desiring punishment’

Question 29

R v Adomako [1995]

Answer 29

Facts: Failed to notice that tube supplying oxygen has been disconnected. Failed to respond to alarm raised by operating system.
Held: Adomako failed to perform his essential and sole duty to see patient was breathing satisfactorily and to cope with breathing emergency -> GNM.

Question 30

AG Ref (No 2 1999) [2000]

Answer 30

Law does not require an evaluation of defendants state of mind.

Question 31

R v Broughton [2020]

Answer 31

Principles of GNM
1. Duty of care
2. Breach of duty
3. At time of breach there was a serious and obvious risk of death which was reasonably foreseeable
4. Breach caused death of victim
5. In view of jury, circumstances of the breach are so exceptionally bad and reprehensible to justify the conclusion of GNM

Question 32

R v Misra and Srivistava [2004]

Answer 32

Challenge stating that GNM was incompatible with Art 7 as it lacked certainty and was too vague was rejected.

Question 33

R v Rudling [2016]

Answer 33

Must be a serious and obvious risk of death foreseeable at point.

Question 34

R v Honey Maria Rose [2017]

Answer 34

Held not guilty of GNM as at the time of breach she could not know that this breach would give rise to a serious and obvious risk of death.

Question 35

Causation of GNM

Answer 35

Must be shown that the defendant’s gross negligence caused or made a significant contribution to the patient’s death.

Or put slightly different – defendant’s negligence made a significant contribution to the patient dying as and when he did.

Question 36

Dr Bawa-Garba

Answer 36

Number of failings found in Dr BGs care including missing signs of infection/mistakenly thinking DNAR in place.
Also - computer system failure. Worked double shift with no break. No senior assistance.
Held: Originally convicted of GNM (2 years prison) and erased from medical register.
Concerns among medical professionals – lots of systemic issues – fair to portion all blame on her?
Medical register erasure overturned.
Led to reviews of law – punish system instead?

Question 37

Corporate Manslaughter and Corporate Homicide Act 1007

Answer 37

Act declares that an organisation is guilty of an offence if the way in which its activities are managed causes a person death and amount to a gross breach of a relevant duty of care.

Issues: Difficult to prove these elements in C difficile outbreak

Question 38

Wilful Neglect

Answer 38

S20 Criminal Justice and Courts Act 2015: Offence for an individual who has care of another individual by virtue of being a care worker to ill-treat or wilfully neglect that individual.
No intent to harm need be proved, nor need any assault be proved.