The Result of the Accumulation of Negligent Acts - Essay Example

? Case analysis Introduction Chloe’s case is a very unfortunate one and she and her parents have well grounded right to action against the parties involved. In this paper, the author will analyze the existence of breaches in each party’s behaviour, the type of breach, the rules that should be applied and the arguments that may be used by the plaintiffs in proving their case. Mrs. Taylor The most important question that must be answered in Mrs. Taylor’s case, as well as in the case of the rest of the parties is: Did the party owe a duty of care to Chloe? The first party involved in this sad accident is Chloe’s teacher – Mrs. Taylor. The accident happened under her supervision and this raises serious issues. The duty of care arises from the teacher-pupil relationship. Being a teacher, Mrs. Taylor had to comply with the School Teachers’ Pay and Condition Document. This Act, among other matters, charges teachers with a duty of care versus pupils, which extends to “maintaining good order and discipline and safeguarding their pupils’ health and safety, both when they are on school premises and engaged in authorized school activities elsewhere.”1 This means that when at school or in any other place engaged in a school activity, the teachers owe a duty of care to their pupils, just as Mrs. Taylor owed Chloe a duty of care. However, whether Mrs. Chloe, as an individual teacher, may be found guilty of negligence depends on whether Chloe’s accident may have been reasonably foreseen. Although the concept of medical malpractice has been widely used over the past years, the English Courts prefer to apply it mostly to cases involving children with certain disabilities. That is why the concept of negligence is more appropriate in this case. Steele J. (2007, p.110) states that “In order to succeed in a claim in negligence, the claimant must show that the following criteria are met: 1. The defendant owes the claimant a duty of care”2 The existence of a duty of care owed by Mrs. Taylor to Chloe has already been justified above. Moreover, according to Kelly, E.B. (1998, page 32), “School teachers and administrators have a duty to provide a safe environment and to protect students from unreasonable risk of harm.”3 Although a teacher’s duty of care is not directly stipulated by law, its existence has been upheld in the English courts as a duty which derives from common use laws and case law. 2. “The duty has been breached”4 Mrs. Taylor breached her duty of care by allowing Chloe, a very young 10-year-old girl to try to perform the difficult exercise. Moreover, in spite of her allowing it, she did not supervise Chloe attentively enough to prevent her from injuring herself, although Mrs. Taylor was standing close to her. 3. “The defendant’s breach of duty has caused the claimant to suffer loss or damage of a relevant sort”5 If Mrs. Chloe had acted with proper care , Chloe would not have been injured as a result of the unfortunate accident, because it would have not happened at all. 4. “That damage is caused in law by the defendant’s negligence/is not too remote/is within the scope of his duty.”6 Taking care of the pupils under her supervision is one of the most important duties of a teacher, including Mrs. Taylor. We should also draw attention to the neighbour principal, stated by Lord Atkin in Donoghue v Stevenson (1932): “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”7 I would also apply the statement made by Lord Rodger in the case of Home Office v Dorset (1970): “…Similarly, if A specifically creates a risk of injury…he may be liable for the resulting damage….Similarly, A may be liable if he assumes specific responsibility for B’s safety but carelessly then fails to protect B..”8 It is obvious that Mrs. Taylor’s lack of care falls within the statements and test above and she should be held responsible for neglecting her duty of care. She should have acted as a professional; nobody expected extra-skills from her: she should have acted as a normal, average teacher. However, it is important to understand who can be held liable in court for their mistakes: Mrs. Taylor herself or the school authorities, as her employer? Depending on the causes that lead to Chloe’s injury, both the school authorities and Mrs. Taylor may be found liable for it. If the injury occurred due to school’s negligence, such as lack of safety equipment, which could have prevented the accident, the school will be held liable for Chloe’s accident. On the other hand, if the accident occurred because of the inappropriate behaviour of the teacher, it will be the teacher’s personal liability. This might happen when the teacher would not pay enough attention to its pupils and be distracted at the moment of the accident (for example, Mrs. Taylor was talking on the phone, or reading something, anything that kept her distracted from Chloe’s behaviour). English Courts accept under the doctrine of vicarious liability the possibility of the plaintiff’s damages to be paid by the school authorities, fact that does not exclude the teacher’s personal liability. This is also available under the principle: "respondeat superior" (which is a Latin phrase for “Let the superior answer”), which means that the employer is responsible for the employee’s bad conduct. Dr. Shearer Under the circumstances when, as a consequence of the pain relief injection, Chloe suffered an allergic reaction and began vomiting, Dr. Shearer may also be held liable causing Chloe physical damages. This depends on whether Dr. Shearer followed or ignored the protocol. The first possibility refers to the doctor complying with the protocol and doing his best to find out if there is something that Chloe is allergic to. If the protocol had been accordingly followed, but none of the doctor’s actions were able to discover an allergy to the medication that Dr. Shearer applied to Chloe, the doctor should not be held liable for the allergic reaction. He will be able to prove that he followed the protocol, but no allergy has been found, nor was it possible to be found. However, the situation changes if the protocol has not been followed. The existence of the duty of care in the relationship between Dr. Shearer and Chloe is incontestable. Smith and Keenan (2010, p.464) state that the test of a reasonable man should be applied to individuals “who have held themselves out as possessing a particular skill”9 as to average specialist in that domain. For example, as in Dr. Shearer’s case, who is a qualified person, possessing special medical skills, he should have been already aware at that moment of the school pupils’ allergies, or at least he should have asked Chloe or her parents about the existence of an allergy and apply a non-allergenic injection to Chloe. Therefore, this doctor is guilty of negligence. In my opinion, Chloe is a victim of medical malpractice. According to the UK Medical Protection Society, “Medical malpractice is the provision of substandard, improper or negligent medical care resulting in harm to a patient, by a healthcare professional.”10 This means that in order to consider medical malpractice, there must be an act of omission or/and negligence coming from the medical personnel which causes injury to the patient. However, not every act of negligence equals to medical malpractice; there must be an injury caused to the patient, therefore two criteria must be met: Injury and Causation. The injury, in Chloe’s case, consists in her allergic reaction to the injection, and the causation consists in the fact that this is the result of Dr. Shearer’s injection. If we where to apply the test stated above, described by Steele J. (2007, p.110), it would be clear that Dr. Shearer’s actions do fall within it. This test claims that “In order to succeed in a claim in negligence, the claimant must show that the following criteria are met: 1. The defendant owes the claimant a duty of care”11 The duty of care owed by a doctor to his patient is a fact, which needs no further proof. Therefore, Dr. Shearer owed Chloe a duty of care. 2. “The duty has been breached”12 Dr. Shearer, in spite of being a medical professional, did not even bother to get information on the existence of a possible allergy. This omission later resulted in Chloe, who was already hurt and suffering, vomiting and feeling even worse than before seeing the doctor. Therefore, it is obvious that Dr. Shearer did not act as an average medical professional, as the law requires. 3. “The defendant’s breach of duty has caused the claimant to suffer loss or damage of a relevant sort”13 If the doctor had acted professionally and had at least tried to find out if Chloe is allergic to anything, he would have given Chloe the proper first aid procedures and relief the little girl’s pain. His actions, however, caused Chloe an allergic reaction and made her feel worse. 4. “That damage is caused in law by the defendant’s negligence/is not too remote/is within the scope of his duty.”14 Identifying an allergy and avoiding it is within the scope of a doctor’s duties. I would also apply to Chloe’s situation the test proposed by McNair J. in the case of Bolam v. Friern Hospital Management Company (1957)15: “The test is the standard of the ordinary skilled man, exercising and professing to have that special skill.”16 According to Giesen D. “the patient need only prove that injury was resulted from health care – which includes ordinary medical treatment, health – care related accidental and infection injuries…”17, which applies to Chloe’s situation regarding the allergic reaction to the injection. An alternative set of criteria that could be invoked by Chloe’s parents refers to the following: “A doctor-patient relationship existed. The doctor was negligent -- that is, did not provide treatment in a reasonably skilful and competent manner. The doctor's negligence caused actual injury to the patient.”18 As it can be seen, the situation Chloe falls under the above test, thus, it can be referred to during a trial. Again, the question Who is to be held liable? arises. If we were to analyze some of the leading cases in medical malpractice, we would notice that in most of them, the defendant is the hospital or medical institution itself, and not the doctor in particular (for ex.: Bolam v. Friern Hospital Management Company (1957)19, Bolitho v. City and Hackney Health Authority (1997)20 ). Therefore, I would advise Chloe’s representatives to sue and request compensation solidary from the doctor AND his employer – whether this is the school or a medical institution. This way, they can assure that not only the doctor will be personally held liable for Chloe’s loss, but the doctor’s employer, too. Moreover, compensation will be easier to collect. However, I would not blame Dr. Shearer for telling Rob, the ambulance driver, to get to the hospital as quickly as possible. First of all, he said this because he was worried for the girl’s wellbeing, as he saw that, additionally to the pain and injuries, Chloe suffered because of the fall, his mistaken injection also caused her to feel bad and this may have unexpected and unwanted consequences. Second, it is obvious that the accident did not happen because of Dr. Shearer’s statement; all the ambulances have to drive fast and get the patients to the hospital as fast as possible, in order for them to be seen by a doctor. Chloe’s situation was critical at that moment and this involved fast driving. Therefore, I believe that Dr. Shearer must not be held liable in any way for the ambulance’s accident. 3. Rob, the driver Driving fast is one of the prerogatives of an ambulance. The driver’s duty is to get the patient to the hospital as fast as possible, and the other drivers’ duty is to understand this and not get in the way of an ambulance. In this situation, there are two possibilities: a) The driver of the other car is guilty for the accident. If this is the case, and that driver cannot be found, the ambulance driver bears no responsibility for the accident and he should not be held liable for it. b) The accident was produced because of the ambulance’s driver – Rob. Ambulances are exempt from traffic rules whenever they have their light on. Assuming the lights were off or the driving manner of the ambulance driver was not quite safe, raises another kind of issues. In this case, the principle of respondeat superior, under the theory of vicarious liability should be applied. This type of liability fits perfectly this case, as the accident was produced during the driver performing his duties, actions that are authorized by his employee - N.H.S. and V.L. Therefore, as it has been stated above, the employer is responsible for the employee’s negligent or ignorant actions. Conclusions: In this paper, the author tried to analyze Chloe’s sad situation, which is the result of the accumulation negligent acts on behalf of the persons who, based on their professional skills, were directly in charge of the little girl’s wellbeing. In her condition, Chloe is unable to sue anybody, but her parents may seek justice and take action against the people who brought their child to the state of coma. In spite of the fact that it has not been established to what extent the three accidents: the fall, the injection or the auto accident contributed to Chloe’s situation, all three of them did have an unsure, but existing percentage of contribution. And this should not be omitted. I believe that in some of the above situations the Novus Actus Interveniens may be applied. For example, in Dr. Shearer’s situation, his not establishing the existence of an allergy may have not influenced Chloe’s overall health state and may not have contributed to the little girl’s coma. However, this can be established only by a medical expertise, which can objectively set out the factors that brought Chloe to coma. The same is available in the case of the accident. The driver of the ambulance - Rob, as stated above, may not be held guilty for the accident under any circumstances. However, if the accident was caused by Rob, and not the other car’s driver, the latter can upheld in his defence the Novus Actus Interveniens theory. Therefore, if Chloe sued him, he may raise this concept in his defence. Based on the above facts, any Court would rule in Chloe’s favour. Word count: 2523 References: 1. Berry, J. 2007. Teachers' Legal Rights and Responsibilities: A Guide for Trainee Teachers and Those New to the Profession. Great Britain: University of Hertfordshire Press. 2. Bolam v. Friern Hospital Management Company (1957) 1 WLR 582 3. Bolitho v. City and Hackney Health Authority (1997) All ER 771 4. Donoghue v Stevenson (1932) 5. Giesen D. 1988. International medical malpractice law: a comparative law study of civil liability arising from medical care. Germany: Brill 6. Home Office v Dorset (1970) 7. Kelly, E. B. 1998. Legal Basics: a Handbook for Educators. USA: Phi Delta Kappa Educational Foundation. 8. Medical Malpractice Information. Medical malpractice. (online) Available at http://www.medicalprotection.org/medicalinformation/medical-malpractice.htm (accessed 10 November 2010) 9. Michon K. Medical Malpractice: misdiagnosis and delayed diagnosis. NOLO. (online) Available at http://www.nolo.com/legal-encyclopedia/article-32288.html (accessed on 11 November 2010) 10. Steele J. 2007. Tort law: text, cases & materials. Oxford University Press. 11. Wild C., Weinstein S., 2010. Smith and Keenan’ English Law. Text and Cases. 16th edition. Pearson Education. Read More