Clinical Negligence

Question 1

What is the authority for a duty of care between doctor and patient?

Answer 1

Cassidy v Minister for Health

Question 2

When does the duty of care for a patient arise?

Answer 2

When treatment is undertaken and a patient is admitted into care (Barnett v Chelsea and Kensington HA).

Question 3

Which case tells us there is no duty on a doctor for advice given on an occupational health report?

Answer 3

Kapfunde v Abbey National plc

Question 4

Which cases demonstrates there is a positive obligation on doctors to prevent their patients harming others only when they are under their care?

Answer 4

Clunis v Camden & Islington HA

Question 5

Which case demonstrates there is a duty on health authorities to provide health professionals with sufficient skill?

Answer 5

Bull v Devon AHA

Question 6

Which case imposes a duty to dispense drugs and prescriptions correctly?

Answer 6

Prendergast v Sam & Dee

Question 7

Which case imposes a duty on ambulance services? What is the duty specifically?

Answer 7

In Kent v Griffiths the duty was said to arise when an emergency call had been taken, save for the issues surrounding competing calls and resources. Policy failings would not give rise to a duty, but operational failings will.

Question 8

Is there a duty to provide health authorities with sufficient skill on the Secretary of State for Health?

Answer 8

No (R v Cambridge HA ex p Child B)

Question 9

What is the Bolam test?

Answer 9

The claimant must show the doctor in breach has taken a course of action which is not acceptable on any reasonable professional body’s standards.

Question 10

How many people may constitute a body of opinion?

Answer 10

11 out of 1,000 consultants (De Freitas v O’Brien and Connolly)

Question 11

In which case did Scarman LJ justify the Bolam test in stating that it was not for the courts to decide which professional opinion should preside over the other?

Answer 11

Maynard v West Midlands RHA

Question 12

Which case stated that in rare situations the courts may dispose of the Bolam test and find the act of the defendant unreasonable and illogical?

Answer 12

Bolitho v City & Hackney HA

Question 13

According to Professor Andrew Grubb what three-fold review should the court conduct if they wish to use the authority in Bolitho?

Answer 13

1. Have the experts directed their mind to all the relevant details of the case?
2. Have they been logical, sensible and rational in reaching their conclusions?
3. Is the decision defensible as being rational?

Question 14

Which case states you should look at the act not the actor to determine whether the standard of the reasonably competent doctor has been breached?

Answer 14

Wilsher v Essex AHA

Question 15

In which case did Lord Fraser distinguish negligence from an error of judgment?

Answer 15

Whitehouse v Jordan

Question 16

Is it expected that professionals are up-to-date with every latest development in their field?

Answer 16

No (Crawford v Charing Cross Hospital)

Question 17

What is the standard expected in informing patients of risk in treatments?

Answer 17

Apply the Bolam test again. Would a reasonable professional body have informed the patient of a specific risk in treatment? (Sidaway v Board of Governors of Bethlem Royal Hospital).

Unless the patient specifically asked in which case the doctor should divulge even slight risks (Chester v Afshar).

The doctor should also take into account whether advice will be properly understood if the patient is particularly emotional at the time (Pearce v United Bristol Healthcare NHS Trust).

Question 18

In which case did the courts challenge the Bolam test in response to a failure to give information on sterilisation operations potentially failing despite such advice being standard practice?

Answer 18

Lybert v Warrington HA

Question 19

In which case did the courts challenge the Bolam test in response to a failure to give advice prescribed by the government on MMR vaccines?

Answer 19

Thomson v James

Question 20

What is the state of the art defence?

Answer 20

A defendant will not be expected to predict unforeseeable risks (Roe v Minister for Health)

Question 21

In which case did the state of the art defence not work?

Answer 21

N v UK Medical Research Council in which the court found negligence in not applying a full clinical appraisal of HGH and its causational relationship with Creutzfeld Jacob Disease.

Question 22

What are the various ways the courts may deal with factual causation in clinical negligence?

Answer 22

1. But for (Wilsher v Essex AHA)
2. Material contribution (Fairchild v Glenhaven and Bailey v MOD)
3. Policy may override (Chester v Afshar and Wright v Cambridge Medical Group)
4. Apportion liability where there are two or more tortious causes (Prendergast v Sam & Dee Ltd)

Question 23

What three novus actus interveniens must be considered under legal causation?

Answer 23

1. Act of God (Humber v Sivand c/f Jobley v Dairies Association)
2. Act of claimant (McKew v Holland c/f Wieland v Cyril Lord Carpets)
3. Act of third party (Knightley v Johns)

Question 24

Will treatment ever act as a novus actus interveniens?

Answer 24

Only if it is ‘palpably’ wrong (Robinson v The Post Office).