Professional and Clinical Negligence

Question 1

Duty of care

Answer 1

• R v Bateman - doctor own duty of care ones they assume responsibility for a patient
• Cassidy v Ministry of Health - doctors owe DOC whether for reward or not.
• BUT: Kapfunde v Abbey National - doctor did occupational health report. there was no doctor-patient relationship; no DOC.
• Barnett v Chelsea & Kensington HMC - once emergency has undertaken the treatment, a duty of care is owned
• Prendegarst v Sam & Dee - - bad hand writing, doctor was jointly liable with a pharmacist for the incorrect dispensing of a drug.
• Wilsher v Essex Area Health Authority - hospital/health authorities/trusts own duty of care

Question 2

Breach of the duty of care

Answer 2

Bolam v Friern Hospital Management Committee - standard of the ordinary reasonable man exercising and professing to have the special skill. A man need not possess the highest expert skill, only ordinary skill.

The doctor will not be guilty if he has acted in accordance with a practice accepted as proper by reasonable body professional body(Bolam test), it isn’t necessary that it would be majority (De Freitas v O’Brien and Connolly – 11 of 1000). In case of two different opinions the court will not decide which procedure is the best (Maynard v West Midlands), but if the opinion of the reasonable body will be illogical the court may disagree with it (Bolitho v City of Hackney HA).

• Pearce v United Bristol Healthcare NHS Trust - the court would consider the emotional state of a patient when being told the medical risks.
• Prendegarst v Sam & Dee - Bolam test for standard of handwriting on a prescription
• Shakoor v Situ - Bolam test for use of alternative medicine
• Simms v Simms - Bolam test for experimental medicine

Question 3

Level of skill

Answer 3

• Wilsher v Essex AHA - does not matter, unless junior doctor tried to seek advice from a more senior/experienced colleague
• Bull v Devon AHA - Health Authority could be liable for putting a junior doctor in a situation with little or no supervision

Question 4

State of knowledge (defence)

Answer 4

Roe v Minister of Health - defendants could not have guarded against such an event happening on the basis that it was unforeseeable. escaped liability.

Crawford v Charing Cross Hospital - impractical and unrealistic to expect a professional to know every new development in his field at any given moment in time (article published 6 m. earlier)

Question 5

Proof of negligence

Answer 5

it is for claimant to provide evidence of the negligence on the balance of probabilities.
Res Ipsa Loquitur (the situation speaks for itself) may assist (Cassidy v Minister of Health - two stiffed fingers, after - four stiffed fingers

Question 6

Factual causation

Answer 6

• Barnett v Chelsea & Kensington Hospital Management Committee - But for the defendants breach of duty, would the claimant has suffered loss anyway.
• Bailey v Ministry of defence - where medical science cannot establish “but for” an act of negligence the injuty would not have happened but could establish that the contribution of the negligent cause was more than negligible, the “but for test” was modified and the claimant would succeed.