clinical Negligence Flashcards
Wright v Cambridge medical group (2011)
test of clinical negligence - P must establish (a) they were owed a DOC (b) DOC was breached and (c) the breach caused a legally recognised injury not to remote from the negligence
what are the 3 elements that need to be established for DOC
DOC
DOC breached
causation
cassidy [1951]
hospitals are liable for staff during their employment
(a child) 2004
trusts and foundations need to ensure good facilities and staff to satisfy their DOC to P
Bulk v Devon Area [1993]
the organisations of D’s practice innately possessed a risk he wouldn’t be able to make appointments and therefore it was negligent
Faraj [2009]
hospital didn’t owe a non-delegable DOC for the 3rd party labs failure to make a report
Woodland v Essex [2013]
relationships that give rise to a DOC include (1) dependant person (eg. child) and D (2) existing prior relationship (3) P has no control (4) D has delegated an essential role of their DOC to a 3rd party
what relationships give rise to a DOC (4 types)
vulnerable or dependant person and D
existing relationship
P is in a position in which they have no control
D has delegated a portion of their DOC to a 3rd party
Hopkins v Akramy [2020]
DOC can sometimes be a question of statutory interpretation
donoghue v Stevenson [1932]
DOC applies to acts you can reasonably forsee are likely to cause injury to people affected
savage [2008]
Hospital authorities under ECHR art 2, right to life, have an operational duty to prevent suicide
Rabaone v Pennie [2012]
duty to prevent suicide extends to voluntarily admitted P’s
Paul v Royal Wolverhampton
held theres no DOC on D’s to ensure family members of deceased P’s psychiatric wellbeing
ABC v St George 2017
D’s DOC to P with Huntingtons disease was not breached as the D sufficiently balanced the weight of his Duty to P to protect his privacy and and his duty to disclose to P’s relatives their genetic risk regardless of which he picked to value over the other
is there a duty to protect P’s family members from psychiatric harm
no medical privacy of P’s is still protected after death, the DOC becomes a balancing act re the duty to the deceased’s privacy and the duty to protect current P’s health
what are the two limbs of the bolam breach of DOC test
first limb - standard of care of an ordinary skill of an ordinary man in the same position
seccond limb - not negligent if he acted in the same way as a responsible body of medical opinion would have but also not soley negligent because said body would have taken a contrary view
Roe v Ministry of health [1945]
the standard of practice was the standard of practice at the time of the act
crawford 91953)
healthcare professionals standard is up to date with the newest developments in medical standards
C v north cumbria University [2014]
adherence to protocols and clinical guidelines isnt relevant to good practice
wisher [1986]
standard of negligence is higher in high pressure multitasking situations but there is still no allowance for inexperience, as the D is not negligent so long as he kept the standard and skill and care of a reasonably component experienced professional in the same position
FB v Rana [2017]
standard of care is lower in ‘battle ground’ conditions
Maynard v West Midlands [1985]
judge cannot prefer one professional opinion over the other
De Freitas v O’Brien
the responsible body of professional opinion in the 2nd limb of Bolam doesnt have to be a large body
Bolitho v Hackney [1998]
Bolitho v Hackney [1998]
professional opinion needs a logical basis and have a defensible conclusion
Wisniewski [1998]
regardless that a seperate body disagreed with the body of professional experts, due to the status of the professional body and the reluctance of courts to refute the professional body, the view of the professional body was upheld as the standard
Marriot v West Midlands [1999]
although the risk was small, its severity allowed the court to overule the professional body of opnion that held they found it reasonable not to do further testing
Pennet v East Kent [2000]
the judge held that the smears did have abnormalities in contrast with the body of professional opinion and therefore undermines the decision of the body
Hearne [2016]
expert evidence was considered illogical as it was inconstant with the NICE standards
Montgomery v Lanarkshire [2015]
D has a DOC to disclose to P any material risk a reasonable person in the P’s position would want to know and any alternative treatments
McCulloh [2023]
P needs to be informed of any reasonable alternatives for treatment
what is the test for causation
for acts - but for the act the harm wouldn’t have occurred
omissions - if the act did occur what would the harm have been prevented
Barnet v Chelsa
no causation as ‘but for’ D’s failure the P still would have died
wilsher v essex
BOP for causation is on the calimant
bolitho
causation for omission is determined by what would have happened if the omitted act had occurred
chester v afshar
D’s failure to fully inform meant her consent was not valid
schembri [2020]
to establish causation P doesn’t have to prove exactly how a positive outcome would have occurred just that it could have is the act or omission didn’t occur
material contribution test
D is only responsible for the proportion of the injury attributable to his negligence
Thompson v Ship repairers
after it became a known industry standard that headphones were needed for industrial noise, the respondent could be held negligent for not supplying headphones
bonnington castings v Wardlaw
factors that contribute to a harm can be concurrent or successive
Baily v MOD
if no causal actor can be determined and it can be shown each respondent materially increased the risk of harm all will be held responsible
invisible injuries
the injury cannot be worsened by negligence you either have the injury or you dont eg. cancer
divisible injury
severity of the injury is linked to the extent of the negligence
thotley v Sandwell
material contribution test cannot apply to indivisible injury
davies v frimley
material contribution test cannot apply if there is an indivisible injury or only 1 D
in what circumstances does material contribution test doesnt apply
for indivisible injuries (Thotley v Sandwell; Davies v Findlay)
when theres only one D (Davies v Finlay)
in what circumstances is it argued that indivisible injuries can apply to the material contribution test
D cant escape liability because the injury was indivisible (Williams v Bermuda)
if D has contributed to a indivisible disease they should be fully liable (Sienkiewicz)
Williams v Bermuda
D shouldnt be able to escape liability because the injury is indivisible so as such causation must be able to be applied to such injuries
Sienkiewicz
if a D contributed to an indivisible disease they should be held fully liable whereas for divisible disease they should only be held liale for the extent of the injury they caused
loss of chance test
if P has a chance of recovery over 50% and this is lost by D’s negligence this is a breach of DOC
Hotson
P’s injury was likely to get worse even if the treatment was not delayed, as such it cannot be said the delay caused the deterioration of the injury
gregg v scott
other considerations relevant to if a D will be held liable for negligence is how this finding will impact the common law, the NHS finances, the certainty in the law
wright
just because a hospital was negligent on one day doesn’t mean it would have been negligent on another day as such the referring D was not liable for providing a late referral
