Medical Negligence Flashcards
what study found that 30-40% of claimants in medical negligence action succeeded in the ’70s?
The Pearson Commission (1978)
Fleming said similar figures in US
which case said in medical cases c must satisfy a standard of proof higher than ‘mere balance of probabilities?
Dwyer
which case gives the breach of duty test?
Bolam
what is the Bolam test?
embraces two standards:
(a) ‘the ordinary skilled [practitioner]’;
(b) ‘a practice accepted as proper by a responsible body of medical [practitioners] skilled in that particular art’.
who described Bolam test as practitioner oriented standard?
Tickner
which case said general practice test of Bolam may yield strong but not conclusive evidence that conduct was reasonable?
(makes it clear judges will determine if practices are acceptable)
Morris
what is the analogy that allows the Bolam test to establish a relaxed standard of reasonableness in that judges ought not to choose conflicting medical views once a professional opinion has been accepted as reasonable?
Wednesbury Analogy
like in admin law
what is Wednesbury unreasonableness?
- doctor only unreasonable if no other medical person would have made that decision
which case gives the doctrine of informed consent where, if doc fails to get informed consent its a breach of duty?
Montgomery
which case says Bolam applied to treatment, diagnosis, and disclosure of info?
(Lord Diplock)
Sidaway
what happened in the Sidaway case that strained the Bolam test?
- surgeon fail to disclose 1% risk of damage
- operated negligently, severely disabled
- held surgeon not negligent in failing to disclose risk (supported by body of practitioners)
who said Bolam applied but courts still have ‘residual power’ to identify practices of group of practitioners as unacceptable?
Tickner
who argued the doctrine of informed consent was needed in the Sidaway case?
Lord Scarman
Dissenting
which jurisdictions disproved Bolam and instead ask what a reasonable person would expect/ require?
Canada and Australia
causation
which case said the problem of evidential gaps may impede the pursuit of the claim?
Wilsher
what did Scott case say about medical negligence and causation?
(a) the cause of the accident must be unknown;
(b) D had control over the source of harm;
(c) harm would not normally occur in the absence of carelessness
which cases follows Scott as the Patient dies, found surgeons left a swab in the patient, which was concluded to be the decisive factor of death?
Mahon
which case said the causation test of Scott is to be used sparingly lest doctors suffer ‘unfair stigma’?
Fletcher
what happened in the Bolam case of Bolitho?
- doctor breaches duty by not attending child on two occasions (omission)
- but expect doctor said they wouldn’t have intubated anyway
- so omissions were breaches but causation could not be established so failed
- court said rarely will judges go against expert medical opinions
which case shows move away from medical paternalism and towards autonomy and informed consent?
Chester
which case established if you can sue for loss of chance and what happened?
Gregg
- negligent diagnosis result in loss of chance of successful treatment
- applied hotson and said can’t sue for loss of chance of 50% or less
lord nicholls said arbitrary as 45% is still big loss
what did lord Hoffman say about the Gregg case?
- if claim had been accepted there would be big rise in claims against docs
- would have enormous consequences for insurance comps and NHS
which 2 cases show conflict between pro claimant and pro defendant decisions by court?
chester (pro claimant)
gregg (pro defendant)
what happened in the causation case of Wright?
duty to refer
- def (due to negligence) failed to refer C till late
- then hospital (alleged negligence) fail to give correct treatment till late
- if c had been referred and treated on time they would have recovered
- c only sued def and not hospital
- ruled couldn’t prove def negligence caused injury, and had they been referred on time hospital would have still treated them negligently (very controversial to assume)
what happened in wright case on COA?
- said they should assume the hospital would have treated c properly had they been referred on time
- so evidential burden shifted to def to prove otherwise
what did Lord neuberger say about wright in relation to Bolitho?
- when a doc negligently hasn’t made referral, they can’t rely on others’ negligence to break chain of causation
case for reduction in life expectancy?
JD v Mather
what happened in JD?
- doctor admitted breach in failing to diagnose for 7 months
- first argument that if he had been treated on time could have survived failed as it was basically loss of chance for less than 50%
- but second argument that the breach reduced his life expectancy succeeded and got damages
what is the case for informed consent?
Montgomery
what happened in the Montgomery case?
- diabetic women 10% at risk of bad birth
- doctor didn’t inform woman as she thought it would make them want C section which she wouldn’t advise
- said doctors have duty to make patients aware of material risks (or what they think a patient will think significant)
what was said about Bolam’s informed consent in Montgomery?
- Hale, Kerr, Reed
disclosure of info from Bolam not appropriate touchstone of liability
