Medical Negligence

Question 1

what study found that 30-40% of claimants in medical negligence action succeeded in the ’70s?

Answer 1

The Pearson Commission (1978)

Fleming said similar figures in US

Question 2

which case said in medical cases c must satisfy a standard of proof higher than ‘mere balance of probabilities?

Answer 2

Dwyer

Question 3

which case gives the breach of duty test?

Answer 3

Bolam

Question 4

what is the Bolam test?

Answer 4

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’.

Question 5

who described Bolam test as practitioner oriented standard?

Answer 5

Tickner

Question 6

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)

Answer 6

Morris

Question 7

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?

Answer 7

Wednesbury Analogy

like in admin law

Question 8

what is Wednesbury unreasonableness?

Answer 8

• doctor only unreasonable if no other medical person would have made that decision

Question 9

which case gives the doctrine of informed consent where, if doc fails to get informed consent its a breach of duty?

Answer 9

Montgomery

Question 10

which case says Bolam applied to treatment, diagnosis, and disclosure of info?

(Lord Diplock)

Answer 10

Sidaway

Question 11

what happened in the Sidaway case that strained the Bolam test?

Answer 11

• 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)

Question 12

who said Bolam applied but courts still have ‘residual power’ to identify practices of group of practitioners as unacceptable?

Answer 12

Tickner

Question 13

who argued the doctrine of informed consent was needed in the Sidaway case?

Answer 13

Lord Scarman

Dissenting

Question 14

which jurisdictions disproved Bolam and instead ask what a reasonable person would expect/ require?

Answer 14

Canada and Australia

Question 15

causation

which case said the problem of evidential gaps may impede the pursuit of the claim?

Answer 15

Wilsher

Question 16

what did Scott case say about medical negligence and causation?

Answer 16

(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

Question 17

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?

Answer 17

Mahon

Question 18

which case said the causation test of Scott is to be used sparingly lest doctors suffer ‘unfair stigma’?

Answer 18

Fletcher

Question 19

what happened in the Bolam case of Bolitho?

Answer 19

• 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

Question 20

which case shows move away from medical paternalism and towards autonomy and informed consent?

Answer 20

Chester

Question 21

which case established if you can sue for loss of chance and what happened?

Answer 21

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

Question 22

what did lord Hoffman say about the Gregg case?

Answer 22

• if claim had been accepted there would be big rise in claims against docs
• would have enormous consequences for insurance comps and NHS

Question 23

which 2 cases show conflict between pro claimant and pro defendant decisions by court?

Answer 23

chester (pro claimant)

gregg (pro defendant)

Question 24

what happened in the causation case of Wright?

duty to refer

Answer 24

• 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)

Question 25

what happened in wright case on COA?

Answer 25

• 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

Question 26

what did Lord neuberger say about wright in relation to Bolitho?

Answer 26

• when a doc negligently hasn’t made referral, they can’t rely on others’ negligence to break chain of causation

Question 27

case for reduction in life expectancy?

Answer 27

JD v Mather

Question 28

what happened in JD?

Answer 28

• 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

Question 29

what is the case for informed consent?

Answer 29

Montgomery

Question 30

what happened in the Montgomery case?

Answer 30

• 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)

Question 31

what was said about Bolam’s informed consent in Montgomery?

Answer 31

• Hale, Kerr, Reed

disclosure of info from Bolam not appropriate touchstone of liability