Clinical Negligence Flashcards
Barnett v Chelsea and Kensington Hospital Management Committee
Doctor owes patient a duty of care as soon as the patient presents themselves for treatment.
Wilsher v Essex AHA
Health authorities owe patients a duty of care to provide properly skilled medical staff and an adequately equipped hospital.
Bull v Devon AHA
CA drew distinction between the hospital’s duty to ensure minimally adequate standard of care, and the hospital’s freedom to choose how to run its services with budgetary constraints. Hospital is liable for failure to provide the former, but is not liable for resource allocation.
Bolam v Friern Hospital Management Committee
McNair J established the general standard for clinical negligence. A doctor is not liable for negligence if he acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art.
I.e. if there is a responsible body of medical opinion supporting the doctor’s practice/conduct, then they are not liable for negligence. Peer-reviewed test which gives a high level of deference to doctors - courts allowing the medical profession to set the appropriate standard of care.
Wilsher v Essex AHA - Narrative
Very sympathetic narrative emanating from the judgements of the Court of Appeal. Praised the role of doctors involved in that case and how vital they were in the patient’s wellbeing, even though a mistake was made in one instance.
Maynard v West Midlands AHA
Lord Scarman stated that the courts should defer to medical opinion of expert witnesses provided that they are “truthfully expressed and honestly held”. Therefore, the focus of the courts in relation to medical opinion is to scrutinise the credibility of the evidence, rather than its content. This compounds the high level of deference set out under the Bolam test.
Bolitho v City and Hackney HA
Patrick Bolitho was an infant who suffered breathing difficulties and died due to resultant brain damage. On duty paedatric registrar did not see him, but said that even if she did she would not have intubated - which was risky but the only way B could have been saved. Expert witnesses on both sides disagreed about whether the failure to intubate was reasonable.
HL found that the doctor was not liable for negligence on the facts of this case. However, most important aspect of the case is Lord Browne-Wilkinson’s development of the test for clinical negligence. Lord B-W stated that the responsible body of medical opinion in favour of the doctor must also be CAPABLE OF WITHSTANDING LOGICAL ANALYSIS.
Bolam test not overruled and still remains the starting point - however, if the body of medical opinion is not capable of withstanding logical analysis, then the court may nevertheless find the doctor liable. Note, however, that Lord B-W said that if distinguished experts testified that they would have done the same as D, then that is an indication of the reasonableness of the doctor’s actions.
Wisniewski v Central Manchester HA
Applying Bolitho, Brooke LJ found that it would be impossible for the court to find that the body of medical opinion was incapable of withstanding logical analysis given that an eminent doctor in that field gave evidence in favour of D that he would have done the same thing. So if a distinguished doctor gives evidence that they would have acted the same as D, highly unlikely that the court will impose liability.
Rachel Mulheron Article
‘Trumping Bolam: A Critical Analysis of Bolitho’s Gloss’
Mulheron argues that Lord B-W’s judgment in Bolitho has created what is now a two-step test for clinical negligence claims.
1) Bolam - did the doctor act in accordance with a responsible body of medical opinion?
2) If yes, is the body of medical opinion capable of withstanding logical analysis?
If yes to the second question also, then the doctor is not liable.
French v Thames Valley Strategic HA
Court explicitly confirmed that Bolitho has now created a two-step test for clinical negligence.
Reynolds v North Tyneside HA
However, there have been some cases in which the courts have been willing to intervene post-Bolitho and find a doctor liable despite the fact that there is a responsible body of medical opinion in favour of their actions/practice. Midwife failed to carry out vaginal examination after mother was admitted to hospital, and her baby suffered cerebral palsy as a result.
Gross J found that the body of medical opinion in favour of D was “irresponsible, illogical and indefensible.”
Lord Woolf writing extra-judicially
‘Are the Courts Excessively Deferential to the Medical Profession?’ argued that the Bolam standard had led to the courts being too deferential to the medical profession and failing to adequately hold them to account. He said that there was formerly no reference whatsoever to the content of the medical opinion - pre-Bolitho the courts would only scrutinise the credibility of the opinion. The Bolam test meant that doctor could avoid liability if they are supported by a medical opinion on the fringes of medical science. If there are conflicting medical opinions as to whether D acted reasonably, doctor would also still be absolved if they could produce even a relatively obscure witness claiming they’d have acted that way also.
Brazier and Miola
‘Bye-Bye Bolam’ argue that the courts are now better equipped than ever to scrutinise medical evidence and find whether or not it complied with prescribed standards. They point to the high volume of guidance documents published now - courts can use this as a standard for whether D acted reasonably or breached their duty of care.
Risks of Courts Imposing Liability for Negligence too Readily
1) Costs to NHS - £1.5bn since 2009-10
2) Fears of moving towards compensation culture
3) Risk of defensive medicine - e.g. 90%+ caeserean section rates in the USA due to fear of being sued if natural birth goes wrong. Not always best option for the mothers.
