Medical Negligence

Question 1

Cassidy v Ministry of Healthcare

Answer 1

it was decided that once they undertake the task they come under a duty of care - whether NHS or Private it doesn’t matter.

Question 2

Barnett v Chealsea and Kensignton

Answer 2

A duty of care is imposed on the doctor once she has assumed responsibility for the patient’s key.
3 men drank tea laced with arson, doc told men to go home and consult GP in the morning but they all die before then. the doc in the case assumed responsibility by giving advice even though he did see them.
In A and E as soon as a patient walks through the door W/O hindrance, the duty of care is assumed - ths apples to ambulances. Kent V Griffith - unless the ambulance has been called to a more urgent issue on their way to original call.

Question 3

Darnley V Croydon

Answer 3

the receptionist told patents waiting time is 4-5 hours, so patient left and decided not to wait, he collapsed and suffered bleeding in his brain and was left paralysed. f he would have waited he would have been treated and recovered. The judge used Caparo to help determine if there was proximity.and harm was foreseeable but it would be unfair to impose liability on the receptionists providing info on waiting time.
providing waiting time is a courtesy,.
Also, policy argument if liability was imposed hospitals would tell the receptionist to not provide waiting time this info is helpful patients.

Question 4

Organisational Issues - Wilsher v Essex

Answer 4

The health authority owed patients a duty of care to provide properly skilled medical staff and an adequately equipped hospital - issues with such a duty - is scarce resources in hospitals. Courts are reluctant to interfere with policy decisions about the allocation of resources.

Question 5

Organisational issues - Bull v Devon

Answer 5

It was found that a duty of care can exist with relation to organisation. However, they distinguished between hospitals duty to provide adequate care and its freedom to choose how to organise services within the limited finds available.

Question 6

What are the issues of proximity ?

Answer 6

Thake v Maurice - Proximity - Wife of patient conceived after her husband had a vasectomy. As a wife of the patient, she was an identifiable person. The doctor should have kept her in mind.
Goodwill V Pregnancy Advisory Service- No proximity - 3 years later after her partner’s vasectomy Mrs Goodwill conceived. Courts dismissed her claim because at the time the doc was treating the patient, Mrs goodwill was not an identifiable person.
ABC V Goerges Healthcare NHS Trust - t s impossible for a doc to owe a duty of care to someone who is not their patient

Question 7

BREACH OF DUTY - BOLAM - THE FACTS

Answer 7

John Bolam was a patient with psychiatric harm he was advised to have electroconvulsive therapy - he wasn’t told about the risk of fractures and or given muscle relaxant. He consequently dislocated his hip joint and suffered a fracture to his pelvis.

Question 8

What did Justice Mcnair say in Bolam?

Answer 8

He defined negligence as the failure to do an act which a reasonable person in the circumstances would do. When you have a special skill the standard would be that of the ordinary skilled man professing to have the same skill.

Question 9

What was the principle formed in Bolam

Answer 9

A doctor cannot be negligent if he acts according to a practice accepted as proper by a responsible body of medical men skilled in the art. Just because another doctor has a different opinion does not automatically mean that the doctor has been negligent.

Question 10

What are the 4 key words of Bolam, identify the descriptive and the normative words. What is the issue with the descriptive words?

Answer 10

ordinary (Descriptive words - what do other doctors do), reasonable, responsible and respectable (Normative words- what ought to have been done. )
Just because something is ordinary doesn’t make it reasonable, responsible or respectable.

Question 11

Maynard v Midlands Regional Authority

Answer 11

Negligence is not established by preferred one respectable body of distinguished professional opinion to another also professionally distinguished.

Question 12

whitehouse v Jordan

Answer 12

an error of judgement is not negligence. The Hol ‘ it is not necessarily negligence’

Question 13

What happens if the d canot get anyone to agree with them

Answer 13

Its up to the D to show why his actions were not negligent - he has to shift the burden of truth. As well as showing the damage did not result from his breach his duty

Question 14

Clark v Maclenann

Answer 14

gynaecologist performed an operation to restore the bladder to its correct position, this was performed 4 weeks postpartum - this was not reasonable practice. Normal practice is to wait at least 12 weeks postpartum. As a consequence, the lady bleeds internally and suffered untreatable damages.
Just because there is not a body to support the D - it does not equal an automatic breach

Question 15

Wilshire and V Essex health Authority

Answer 15

Premature baby - over oxygenated due to false reading by JD. senior registrar failed to identify the mistakes and even made the same mistake. The baby was left blind. The JD absolved himself from all duties because of he asked a senior to check his work

Question 16

According to wilsher, what standard should we hold inexperienced staff to ?

Answer 16

Post standard - it doesn’t matter who you are what matters is the role you are performing - that is the standard the individual will be held to.
other standards include General - everyone held to the same standard and individual - based on the qualifications the individual has

Question 17

Does the extra qualification allow for the standard of care to be raised -

Answer 17

FB V Rana - no

Question 18

Bolitho Facts

Answer 18

Baby Bolitho was not attended to by the paediatrician after having 2 episodes of violent coughing. During his 3rd episode, he suffered a cardiac arrest and then brain damage. D accepted a breach of duty by not attending to baby Bolitho.
The principle: bringing other bodies to verify is not enough - it has to be a responsible body of medical men. the judgement highlighted the normative words.
A logical basis is required otherwise a judge hold the opinion that the body of opinion is not reasonable or responsible

Question 19

Marriot v West Midlands

Answer 19

Mr Marriott had suffered a head injury and had been conscious for 20 - 30minutes his GP attended to him but did not think there was anything wrong. In this case, it was blatantly obvious that a doctor should be concerned about the symptoms reported by someone who recently suffered an head injury

Question 20

Mulholland V meadway NHS foundation trust

Answer 20

Green J held that that the practioners in a busy A and E did not have the luxury of time. And in such circumstances - not negligent.

Question 21

What is the standard of care in emergencies ?

Answer 21

off duty doctors are not under a legal duty to offer assistance, if however they come upon a medical emergency and fail to assist - it could lead to disciplinary action by the GMC. you need to take in surrondngs an context when considering the standard of care.

Question 22

What is the standard of care when it come to alternative medicine

Answer 22

Shakoor v Situ

-the standard of care in that art is what the reasonable alternative practitioner would do.

Question 23

what is the but for test

Answer 23

But for the D’s negligence, the claimant wouldn’t have suffered this injury
Barnett v Chelsea and Kensington Hospital management
- there may be more than one possible cause of the patients injury
- It is not always possible to be certain what the outcome would have been if the patient had been properly treated.
Wilsher v essex
- There way at least 5 reason for martin wilshers blindness - one was the negligent over oxygenation - HOL they failed to prove that it was the excess oxygen that caused his injuries

Question 24

What is a loss of a chance

Answer 24

A doctors breach of duty derives the patient of the opportunity of recovery

Question 25

Hotson

Answer 25

The courts must be satisfied that it is more likely than not that the C’s injury would have been avoided. if there is a 55 % chance that the patient would have made a full recovery if she received negligent treatment then they can recover all. whereas if its a 45 % chance claim would fail because she can not rove on the balance of probabilities that her injuries were caused by the doctors negligence.

Question 26

Facts of Hotson

Answer 26

injured hip - taen to hospital - incorrectly diagnosed. 5 days later he was taken back to hospital and he was given proper treatment. but he was left permanantley damaged due to intia doctors negligence. - even ig his injury had been diagnose and treated immediately there was a 75 % risk of the disability would develop - the breach made it inevitable - 25 % of chance lost

Question 27

Material contribution to harm

Answer 27

Bailey v ministry of defence -in cases of culmalative casuses it was sufficient to establish that the first D’s lack of care made a material contribution to harm. where there is evidential uncertainty is is to the benefit of the claimant, in Bailey that C succeded in full because the doctors could not asses the contribution

Question 28

Remotness

Answer 28

Wagon mound - the damage can not be too remote - remotness is rarely an issue in clinical negligence case
example of when the damage was too remote : C had an x-ray and the radiographer failed to alert her to
an abnormality which woud be excerbated by pregancy. she said if she had known she wouldnt have gotten pregnant -how was he to know she had intetions of gettiing pregnant - too remote
Page smith - provided that physical injury is forseeable d will be liable of the c suffers phsychiatric harm, even if the phycial injury doesnt manifest