clinical Negligence

Question 1

Wright v Cambridge medical group (2011)

Answer 1

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

Question 2

what are the 3 elements that need to be established for DOC

Answer 2

DOC
DOC breached
causation

Question 3

cassidy [1951]

Answer 3

hospitals are liable for staff during their employment

Question 4

(a child) 2004

Answer 4

trusts and foundations need to ensure good facilities and staff to satisfy their DOC to P

Question 5

Bulk v Devon Area [1993]

Answer 5

the organisations of D’s practice innately possessed a risk he wouldn’t be able to make appointments and therefore it was negligent

Question 6

Faraj [2009]

Answer 6

hospital didn’t owe a non-delegable DOC for the 3rd party labs failure to make a report

Question 7

Woodland v Essex [2013]

Answer 7

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

Question 8

what relationships give rise to a DOC (4 types)

Answer 8

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

Question 9

Hopkins v Akramy [2020]

Answer 9

DOC can sometimes be a question of statutory interpretation

Question 10

donoghue v Stevenson [1932]

Answer 10

DOC applies to acts you can reasonably forsee are likely to cause injury to people affected

Question 11

savage [2008]

Answer 11

Hospital authorities under ECHR art 2, right to life, have an operational duty to prevent suicide

Question 12

Rabaone v Pennie [2012]

Answer 12

duty to prevent suicide extends to voluntarily admitted P’s

Question 13

Paul v Royal Wolverhampton

Answer 13

held theres no DOC on D’s to ensure family members of deceased P’s psychiatric wellbeing

Question 14

ABC v St George 2017

Answer 14

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

Question 15

is there a duty to protect P’s family members from psychiatric harm

Answer 15

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

Question 16

what are the two limbs of the bolam breach of DOC test

Answer 16

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

Question 17

Roe v Ministry of health [1945]

Answer 17

the standard of practice was the standard of practice at the time of the act

Question 18

crawford 91953)

Answer 18

healthcare professionals standard is up to date with the newest developments in medical standards

Question 19

C v north cumbria University [2014]

Answer 19

adherence to protocols and clinical guidelines isnt relevant to good practice

Question 20

wisher [1986]

Answer 20

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

Question 21

FB v Rana [2017]

Answer 21

standard of care is lower in ‘battle ground’ conditions

Question 22

Maynard v West Midlands [1985]

Answer 22

judge cannot prefer one professional opinion over the other

Question 23

De Freitas v O’Brien

Answer 23

the responsible body of professional opinion in the 2nd limb of Bolam doesnt have to be a large body
Bolitho v Hackney [1998]

Question 24

Bolitho v Hackney [1998]

Answer 24

professional opinion needs a logical basis and have a defensible conclusion

Question 25

Wisniewski [1998]

Answer 25

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

Question 26

Marriot v West Midlands [1999]

Answer 26

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

Question 27

Pennet v East Kent [2000]

Answer 27

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

Question 28

Hearne [2016]

Answer 28

expert evidence was considered illogical as it was inconstant with the NICE standards

Question 29

Montgomery v Lanarkshire [2015]

Answer 29

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

Question 30

McCulloh [2023]

Answer 30

P needs to be informed of any reasonable alternatives for treatment

Question 31

what is the test for causation

Answer 31

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

Question 32

Barnet v Chelsa

Answer 32

no causation as ‘but for’ D’s failure the P still would have died

Question 33

wilsher v essex

Answer 33

BOP for causation is on the calimant

Question 34

bolitho

Answer 34

causation for omission is determined by what would have happened if the omitted act had occurred

Question 35

chester v afshar

Answer 35

D’s failure to fully inform meant her consent was not valid

Question 36

schembri [2020]

Answer 36

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

Question 37

material contribution test

Answer 37

D is only responsible for the proportion of the injury attributable to his negligence

Question 38

Thompson v Ship repairers

Answer 38

after it became a known industry standard that headphones were needed for industrial noise, the respondent could be held negligent for not supplying headphones

Question 39

bonnington castings v Wardlaw

Answer 39

factors that contribute to a harm can be concurrent or successive

Question 40

Baily v MOD

Answer 40

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

Question 41

invisible injuries

Answer 41

the injury cannot be worsened by negligence you either have the injury or you dont eg. cancer

Question 42

divisible injury

Answer 42

severity of the injury is linked to the extent of the negligence

Question 43

thotley v Sandwell

Answer 43

material contribution test cannot apply to indivisible injury

Question 44

davies v frimley

Answer 44

material contribution test cannot apply if there is an indivisible injury or only 1 D

Question 45

in what circumstances does material contribution test doesnt apply

Answer 45

for indivisible injuries (Thotley v Sandwell; Davies v Findlay)
when theres only one D (Davies v Finlay)

Question 46

in what circumstances is it argued that indivisible injuries can apply to the material contribution test

Answer 46

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)

Question 47

Williams v Bermuda

Answer 47

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

Question 48

Sienkiewicz

Answer 48

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

Question 49

loss of chance test

Answer 49

if P has a chance of recovery over 50% and this is lost by D’s negligence this is a breach of DOC

Question 50

Hotson

Answer 50

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

Question 51

gregg v scott

Answer 51

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

Question 52

wright

Answer 52

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