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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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