EXAM NOTES - Clinical Negligence Flashcards
When do doctors owe a duty of care?
R v Bateman as soon as they assume responsibility for the patient
- Cassidy v Ministry of Health irrespective of whether they are paid or not
Barnett v Chelsea & Kensington HMC - as soon as they accept you for treatment
Do doctors have a duty in an emergency?
no duty to be a rescuer/provide aid unless the doctor is a GP and the victim is on their list Re F (mental patient: Sterilisation)
handwriting?
duty to write legibly Prendergast v Sam & Dee
What is the duty of care on hospitals/AHAs?
Wilsher v Essex AHA to provide effective management of staff and equipment and provide competent doctors
- but Rigby v Chief Constable Northamptonshire not liable for policy failings, only operational ones
What is not covered by a hospital or AHA’s duty?
- no duty to provide every possible treatment; AHAs can decide what is appropriate according to their own resources
- no duty to control mentally ill people who are not in the AHA’s care Clunis v Camden & Islington AHA
- no duty to a partner of a patient because no proximity Goodwill v British Pregnancy Advisory Service
what is the test for breach?
Bolam v Friern HMC - does a reasonable body of medical opinions agree with the doctor’s actions?
- Bolitho v City & Hackney HA; doctors did agree
- Marriott v West Midlands HA most doctors did not agree
- reasonable body could be very small in a specialised field; Defreitas v O’Brien; 1.1%
- errors of judgement are not necessarily breaches; fear of defensive medicine Whitehouse v Jordan
Can a court find the medical body’s decision to be unreasonable?
yes, though very rarely; Bolitho v city & Hackney HA suggested it was possible if the body was not reasonable or logical in its decisionmaking. confirmed in Marriott v West Midlands HA.
- Maynard v West Midlands RHA held that the court should not weigh up different procedures but should just follow Bolam v Friern HMC
How does the V’s consent work?
V must be told of all the risks in order to consent
- but Bolam test should be used to determine which risks they should have told about; Sidaway v Bethlem Royal Hospital Governors didn’t warn of a tiny risk and neither would the reasonable body of doctors
- but Rogers v Whitakers - “prudent patient” rule; if they ask for all the risks you have to say everything, supported in Sidaway v Bethlem Royal Hospital Governors
What is the standard?
the reasonably competent professional carrying out that task - act not the actor
- eg Wilsher v Essex AHA reasonably competent doctor
- Ashcroft v Mersey RHA reasonably competent surgeon
- state of the art rule; cannot anticipate unknown risks Roe v Minister of Health
- doctors not expected to know everything unless it’s general practice Crawford v Charing Cross Hospital
how does causation work in clinical negligence
factual - but for test
- Barnett v Chelsea & Kensington HMC; but for negligence, patient would still have died
- also Wilsher v Essex AHA - damage caused by any of six things of which one was negligence; probably would still have been caused
legal - NAI
- courts unwilling to allow them usually eg Robinson v Post Office
explain res ipsa loquitur
the situation speaks for itself
- eg Cassidy v Minister for Health - went in with two stiff fingers and left with four
- eg Mahon v Osborne, swab left inside patient
- but extremely rare and unlikely
how does remoteness work for clinical negligence?
The Wagon Mound - was the type of loss reasonably foreseeable? if so, all consequential loss and economic loss can be claimed for
what defences are there?
contributory negligence s1(1) Law Reform (Contributory Negligence) Act 1945
- especially if V has ignored instructions not to do something Brannon v Airtours
Volenti is very unllikely to succeed for policy reasons
