EXAM NOTES - Clinical Negligence Flashcards

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1
Q

When do doctors owe a duty of care?

A

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

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2
Q

Do doctors have a duty in an emergency?

A

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)

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3
Q

handwriting?

A

duty to write legibly Prendergast v Sam & Dee

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4
Q

What is the duty of care on hospitals/AHAs?

A

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

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5
Q

What is not covered by a hospital or AHA’s duty?

A
  • 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
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6
Q

what is the test for breach?

A

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
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7
Q

Can a court find the medical body’s decision to be unreasonable?

A

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

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8
Q

How does the V’s consent work?

A

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
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9
Q

What is the standard?

A

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
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10
Q

how does causation work in clinical negligence

A

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

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11
Q

explain res ipsa loquitur

A

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
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12
Q

how does remoteness work for clinical negligence?

A

The Wagon Mound - was the type of loss reasonably foreseeable? if so, all consequential loss and economic loss can be claimed for

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13
Q

what defences are there?

A

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

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