Reproduced with the kind permission of Freedom
to Care, a UK whistleblowing charity
Duty
of Care & Negligence
NOTE: These notes are only meant to provide some basic guidelines
on what duty of care and negligence are according to the
law. They are not meant to be advice. If you are considering
embarking on legal action you should consult an ethical and
publicly accountable lawyer.
It is well to be mindful that while unethical authorities
may be brought to account for negligence and may learn from
this, citizens need to be ethical in not making unreasonable
or purely self-seeking negligence claims.
Liability for negligence arises in law under specific conditions.
There must be:
1 Duty of care. Professionals owe specific d.o.c. to clients
by virtue of that special relationship. Does not depend on contract. Stranger can
watch a child drown, but person in loco parentis cannot.
2
Negligent action or omission. Has to fall short of the
standards reasonably expected of a
person in the position of the defendant. Obtaining consent
is included. (NB volenti non
fit injuria.)
3
Causation. The negligence is the cause of the damage. NB ‘eggshell skull rule’.
4
Forseeability. The damage must have been foreseeable; that
is ‘within
reasonable contemplation’
5 Proximity. Damage is not too remote from act or omission.
6
Note - Damages. Injured person may receive damages for
injury
and any economic loss caused by that injury; ‘economic
loss’ is not recoverable, in most cases.
NOTE ‘Reasonable standards’:
Assuming that a duty of care exists, the next test is to
see whether the act or omission complained of fell short
of the standards reasonably expected of a person in the position
of the defendant.
So
far as the medical position is concerned, that test was
helpfully
stated in Wilsher -V- Essex Area Health Authority
[1988] 2 WLR 557 (House of Lords). The plaintiff was born
prematurely and placed in a baby-care unit. To survive the
baby needed extra oxygen. To ensure the correct amount of
oxygen was administered it was necessary to monitor the arterial
blood and to insert a catheter in the umbilical artery so
the oxygen levels could be read on an electronic monitor.
A junior doctor inserted the catheter into a vein, so the
levels read low. His senior registrar inserted another catheter
but in the same vein. The plaintiff was supersaturated with
oxygen. The plaintiff alleged that this caused retrolental
fibroplasia (damage to the retina) causing blindness. This
case considered negligence in the medical profession and
reconfirmed the test usually applied. the so-called ‘Bolam
Test’:
“The
test is the standard of the ordinary skilled man exercising
and professing to have that special skill.
A man need not possess the highest expert skill: it is well
established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that
particular art"
NOTE
inexperience is no defence. The Judge went on to say: "In
my view the law requires the trainee or learner to be judged
by the same standard as his more experienced colleagues.
If it did not, inexperience would frequently be urged as
a defence to an action for professional negligence. If this
test appears unduly harsh to the inexperienced, I should
add that, in my view, the inexperienced doctor called upon
to exercise a specialist skill will, as part of that skill,
seek the advice and help of his superiors when he does or
may need it." The House of Lords also held: "a
doctor who adopts a practice accepted as proper by a responsible
body of medical men skilled in the relevant branch of medicine
is not to be taken as negligent merely because there is a
contrary view." (Although the case was remitted to the
Trial Court for further evidence, it was held that the doctor
was negligent.)
BOLITHO V. CITY AND HACKNEY HEALTH
The
Bolam test has recently been modified by the findings in
the
case of Bolitho. ‘Bolitho’ is authority
for the following:
1.
The court should not accept a defence argument as being ‘reasonable’, ‘respectable’ or ‘responsible’ without
first assessing whether such opinion is susceptible to logical
analysis. Lord Browne-Wilkinson said:
‘...the court is not bound to hold that a defendant
doctor escapes liability for negligent treatment or diagnosis
just because he leads evidence from a number of medical experts
who are genuinely of the opinion that the defendant's treatment
or diagnosis accorded with sound medical practice. In the
Bolam case itself, McNair J. stated [1957] 1 W.L.R. 583,
587, that the defendant had to have acted in accordance with
the practice accepted as proper by a "responsible body
of medical men." Later, at p.588, he referred to "a
standard of practice recognised as proper by a competent
reasonable body of opinion." Again, in the passage which
I have cited from Maynard's case, Lord Scarman refers to
a "respectable" body of professional opinion. The
use of these adjectives responsible, reasonable and respectable
all show that the court has to be satisfied that the exponents
of the body of opinion relied upon can demonstrate that such
opinion has a logical basis. In particular in cases involving,
as they so often do, the weighing of risks against benefits,
the judge before accepting a body of opinion as being responsible,
reasonable or respectable, will need to be satisfied that,
in forming their views, the experts have directed their minds
to the question of comparative risks and benefits~ and have
reached a defensible conclusion on the matter.’
2.
However, where there is a body of medical opinion which
represents
itself as "reasonable", "responsible" or "respectable" it
will be rare for the court to be able to hold such opinion
to be other than represented. Lord Browne-Wilkinson said:
‘....in
the cases of diagnosis and treatment there are cases where,
despite a body of professional opinion sanctioning
the defendant's conduct, the defendant can properly be held
liable for negligence (I am not here considering questions
of disclosure of risk). In my judgment that is because, in
some cases, it cannot be demonstrated to the judge's satisfaction
that the body of opinion relied upon is reasonable or responsible.
In the vast majority of cases the fact that distinguished
experts in the field are of a particular opinion will demonstrate
the reasonableness of that opinion. In particular, where
there are questions of assessment of the relative risks and
benefits of adopting a particular medical practice, a reasonable
view necessarily presupposes that the relative risks and
benefits have been weigh d by the experts in forming their
opinions. But if, in a rare case, it can be demonstrated
that the professional opinion is not capable of withstanding
logical analysis the judge is entitled to hold that the body
of opinion is not reasonable or responsible.’
'I
emphasise that in my view it will very seldom be right
for a judge
to reach the conclusion that views genuinely
held by a competent medical expert are unreasonable. The
assessment of medical risks and benefits is a matter of clinical
judgment which a judge would not normally be able to make
without expert evidence. As the quotation from Lord Scarman
makes clear, it would be wrong to allow such assessment to
deteriorate into seeking to persuade the judge to prefer
one of two views both of which are capable of being logically
supported. It is only where a judge can be satisfied that
the body of expert opinion cannot be logically supported
at all that such opinion will not provide the bench mark
y reference to which the defendant’s conduct falls
to be assessed.’
Where does that leave access to justice vis a vis those
who emerge unexpectedly damaged from medical treatment?
The role of the medical negligence litigator has always
had two primary limbs:
First: To establish what really happened. There is of course
the duty of candour which the doctor/health authority owes:
Lee v. South West Regional Health Authority [1985] 2 All
ER 385; Naylor V. Preston Health Authority [1987] 2 All ER
353.That said, the probing and digging of the plaintiff experts
[orchestrated by the plaintiff litigator] can uncover a matrix
of fact otherwise not apparent. This role of the litigator
continues as before - indeed the onus is greater. The more
information which is revealed earlier, the more clearly the
medico-legal focus on the issue of negligence can be achieved.
Second: To seek to prove negligence, with the assistance
of medical experts. That issue of negligence is one of law:
As a matter of law, the risk of damage to the patient from
the treatment actually adopted has to be weighed in the balance
against the benefit to be derived. If the risk of injury
obviously and clearly outweighs the benefit to be derived,
then it is submitted that [following Bolitho] the makings
of an argument to succeed on negligence are established,
namely that a body of expert opinion called by the defence
could not logically support the treatment administered at
all.
SUMMARY:
This is the first time that the House of Lords has expressed
reservations about the Bolam test. This test has been the
subject of criticism over the years because it appeared to
be too protective of the medical profession. It conveyed
the impression that it was doctors rather than the courts
who were the final arbiter of the standard of care to be
owed in a medical environment.
In short,
the courts are looking to ensure that it is the medical
opinion itself which is responsible, respectable/reasonable
as opposed to the calibre/disposition of the medical experts
espousing such opinion.
Bolitho can be interpreted as opening the way for a modest
reappraisal of the position, whereby as a longstop it is
for the court to decide what ought to be done if what is
done obviously fails to satisfy the risk-benefit ratio.
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