negligence 1

Question 1

what is the policy concern in this area of law

Answer 1

the overkill argument- the fear that public bodies may be deflected from their core concerns by litigation

Question 2

what was founded by the Pearson Commission

Answer 2

that 30-40% of Cs in. medical negligence actions succeed in recovering compensation

Question 3

what was held in Dwyer v Roderick about the standard of proof (2)

Answer 3

• that Cs in medical negligence find it more difficult to establish liability the in other cases
• C must satisfy a standard of proof higher than ‘the mere balance of probabilities

Question 4

the breach of duty related test was found in what case

Answer 4

Bolam case- the Bolam test

Question 5

what is the Bolam test (2)

Answer 5

• D has to secure the endorsement of one ‘responsible body’ of practitioners.
• This means that doctors can deliver services in a range of (defensible) ways. Accepting of medical pluralism.

Question 6

what was held in Morris and Cavanagh

Answer 6

-General practice may yield strong, but not conclusive, evidence that D’s conduct was reasonable

Question 7

what was held in Ashcroft

Answer 7

-Once a body of professional opinion supporting D’s conduct is characterised as responsible, then judges ought not to choose between conflicting medical views

Question 8

what is the Wednesbury analogy

Answer 8

Wednesbury unreasonableness approach applied to public bodies- this case states that a public body is unreasonable if they take a decision that no such official could make

Question 9

thee scope of the Bolam test- what 3 things does Bolam apply to and give cases

Answer 9

• treatment: Whitehouse v Jordan
• diagnosis: Maynard
• disclosure of information: Sidaway

Question 10

informed consent case

Answer 10

Chester v Afshar and confirmed in Montgomery

Question 11

why was the Bolam test under strain in Sidway

Answer 11

because doctors may withhold information to secure the patient’s best interests

Question 12

what case in America shows that they have an informed consent doctrine

Answer 12

Canterbury v Spence: prudent patient test

Question 13

what are the 2 problems in medical negligence with regards to causation

Answer 13

• the problem of overdetermination

- the problem of evidential gaps may impede the pursuit of a claim

Question 14

2 cases for the problem of evidential gaps may impede the pursuit of a claim

Answer 14

• Wilsher

- McGhee

Question 15

what was held in Wilsher

Answer 15

Lord Bridge said you have to show causation on the balance of probabilities- that would be a tall order for a person brining a medical negligence claim\

Question 16

what was held in McGhee

Answer 16

if there is an evidential difficulty or gap, but you can establish a breach of duty or a material increase in risk, in a limited range or circumstances that could be an acceptable basis on which to help the C over the causal difficulty that would otherwise make impossible the effective pursuit of the claim

Question 17

The Pleading of Res Ipsa Loquitur: (the Thing Speaks for Itself

what are the 3 requirements that a C must satisfy

Answer 17

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

(Scott v London)

Question 18

RIL: what 3 things are seen

Answer 18

• C can direct the judge’s attention to circumstantial evidence
• It may place an evidential burden on D
• can be seen as reversing the burden of proof on causation

Question 19

RIL- helpful to C in swab cases (give case)

Answer 19

Mahon v Osborne

Question 20

RIL has to be used sparingly- give case

Answer 20

Fletcher v Bench. Courts don’t want to stigmatise doctors unfairly, hence why the sensitivity around medical claims

Question 21

RIL- what case do we see the policy term of trying to tackle the conspiracy of silence amongst health care professions

Answer 21

Ybarra

Question 22

RIL: how does Fleming describe the policy objective in Ybarra as

Answer 22

‘inducing [medical practitioners] to talk on pain of suffering an adverse judgment’

Question 23

Bolitho outcome (2)

Answer 23

• Bolam worked effectively to insulate the doctor from the claim succeeding.
• House of Lords: distinguished medical experts will (typically) throw light on ‘sound medical practice’.

Question 24

Chester v Afshar outcome

Answer 24

there was a breach of duty because when the C consented to surgery she also consented to be fully aware of the risks- there was a violation of the right to choose

Question 25

Gregg v Scott outcome

Answer 25

-Hotson case applied: : C cannot sue for the loss of a chance that is 50% or less. C loses

Question 26

3 points we can highlight from Chester v Afshar

Answer 26

• Pro-claimant decision
• Emphasis on C’s fundamental interests: respect, autonomy and the right to choose (language of human rights law).
• Policy might be described as dialing down medical paternalism

Question 27

3 points we can highlight from Greg v Scott

Answer 27

• Pro-defendant decision, interest of public.
• Emphasis on NHS funding, the possibility of a flood of claims, and the availability of insurance
• a lot of policy tensions

Question 28

why can’t we sue for a loss of chance as seen in Gregg v Scott

Answer 28

If this claim had been accepted, the number of claims that could be brought against doctors would be greatly increased.

Question 29

what was the central issue in Wright v Cambridge Medical Group

Answer 29

the judges had to decide whether the negligence of the original tortfeasor (D) was a cause of the eventual injury, or whether the causal potency of D’s carelessness had been eclipsed by the subsequent negligence of the later tortfeasor (the Hospital).

Question 30

what was the question asked in Wright

Answer 30

-had the C referred patient on time, hospital would have treated him properly, a and there would have been high chance of recovery

Question 31

Wright v Cambridge Medical Group outcome (2)

Answer 31

• C satisfied legal causation

- hospital’s lack of reasonable care did not break chain of causation

Question 32

why was Wright critiqued for being complex by Barker

Answer 32

-Wright: majority held original wrongdoer responsible, trail judge: original wrongdoer not responsible

Question 33

held in Rahman v Arearose Ltd

Answer 33

in cases of successive negligent acts, intervening medical negligence would not ordinarily break the chain of causation, unless it was gross or egregious

Question 34

JD v Mather outcome (2)

Answer 34

• c could not claim that she would have had her illness removed straight away as her chances of surviving for a further 10 years were already below 50%.
• however, she won’t the claim that she would have had a longer life expectancy but for the doctors negligence- recovered damages

Question 35

Montgomery v Lanarkshire Health Board (4)

Answer 35

• doctor should have made patient aware of risks (cf to Sidaway where information as withheld for the best interests of the patient)
• doctors must engage in dialogue with patients
• relevance of human rights- Montgomery and Chester
• increasing importance of self-determination