negligence 1 Flashcards
what is the policy concern in this area of law
the overkill argument- the fear that public bodies may be deflected from their core concerns by litigation
what was founded by the Pearson Commission
that 30-40% of Cs in. medical negligence actions succeed in recovering compensation
what was held in Dwyer v Roderick about the standard of proof (2)
- 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
the breach of duty related test was found in what case
Bolam case- the Bolam test
what is the Bolam test (2)
- 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.
what was held in Morris and Cavanagh
-General practice may yield strong, but not conclusive, evidence that D’s conduct was reasonable
what was held in Ashcroft
-Once a body of professional opinion supporting D’s conduct is characterised as responsible, then judges ought not to choose between conflicting medical views
what is the Wednesbury analogy
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
thee scope of the Bolam test- what 3 things does Bolam apply to and give cases
- treatment: Whitehouse v Jordan
- diagnosis: Maynard
- disclosure of information: Sidaway
informed consent case
Chester v Afshar and confirmed in Montgomery
why was the Bolam test under strain in Sidway
because doctors may withhold information to secure the patient’s best interests
what case in America shows that they have an informed consent doctrine
Canterbury v Spence: prudent patient test
what are the 2 problems in medical negligence with regards to causation
- the problem of overdetermination
- the problem of evidential gaps may impede the pursuit of a claim
2 cases for the problem of evidential gaps may impede the pursuit of a claim
- Wilsher
- McGhee
what was held in Wilsher
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\
what was held in McGhee
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
The Pleading of Res Ipsa Loquitur: (the Thing Speaks for Itself
what are the 3 requirements that a C must satisfy
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)
RIL: what 3 things are seen
- 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
RIL- helpful to C in swab cases (give case)
Mahon v Osborne
RIL has to be used sparingly- give case
Fletcher v Bench. Courts don’t want to stigmatise doctors unfairly, hence why the sensitivity around medical claims
RIL- what case do we see the policy term of trying to tackle the conspiracy of silence amongst health care professions
Ybarra
RIL: how does Fleming describe the policy objective in Ybarra as
‘inducing [medical practitioners] to talk on pain of suffering an adverse judgment’
Bolitho outcome (2)
- 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’.
Chester v Afshar outcome
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
Gregg v Scott outcome
-Hotson case applied: : C cannot sue for the loss of a chance that is 50% or less. C loses
3 points we can highlight from Chester v Afshar
- 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
3 points we can highlight from Greg v Scott
- 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
why can’t we sue for a loss of chance as seen in Gregg v Scott
If this claim had been accepted, the number of claims that could be brought against doctors would be greatly increased.
what was the central issue in Wright v Cambridge Medical Group
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).
what was the question asked in Wright
-had the C referred patient on time, hospital would have treated him properly, a and there would have been high chance of recovery
Wright v Cambridge Medical Group outcome (2)
- C satisfied legal causation
- hospital’s lack of reasonable care did not break chain of causation
why was Wright critiqued for being complex by Barker
-Wright: majority held original wrongdoer responsible, trail judge: original wrongdoer not responsible
held in Rahman v Arearose Ltd
in cases of successive negligent acts, intervening medical negligence would not ordinarily break the chain of causation, unless it was gross or egregious
JD v Mather outcome (2)
- 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
Montgomery v Lanarkshire Health Board (4)
- 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
