Medical Negligence Cases Analysis - Case Study Example

Introduction Negligence in law means the failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do. A cause of action would only arise if as a consequence of negligence, injury to another person results. It has been held that to judge a person by his conduct in relation to another is guided by the conduct of a man on top of a Clapham omnibus. However, if a situation involves the employment of some special skill then the test to be used in judging that conduct is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest skill at the risk of being found negligent. 1 In this paper, discussion shall be focused only on medical or clinical negligence cases which had set precedence for cases, which may call for the application of the doctrines enunciated in the cited jurisprudence. Moreover, two hypothetical scenarios would also be discussed and solved in accordance with the principles in law which would be applicable. Hence, the discussion of the appropriate cases decided by the Court should follow as a matter of course. The Cases Bolam v. Friern Hospital Management Committe The plaintiff had been given the E.C.T. which was unmodified without the use of any manual restraint other than the normal practice of the doctor which was to support the plaintiff's chin and shoulders. As a result, the plaintiff suffered a fracture hip so he sued for damages, contending that the defendants were negligent (1) in utterly failing to give him any relaxant drug prior to the introduction of the current through his brain; (2) since they had not administered such drug, in failing to provide at least some form of manual restraint or control beyond that given; and (3) in the defendants failure to give any warning of the risks involved in the treatment. It was held that "A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art." Even though "there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: 'I don't believe in anaesthetics. I don't believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century'. That clearly would be wrong." "...We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right. That is just what happened here." (emphasis supplied) 2 The judgment was for the defendant. Bolitho v City and Hackney Health Authority (1992) This case involved the principle of causation in fact where negligence is established for the defendants to be held guilty of medical negligence. In this case, Patrick Nigel Bolitho was admitted at St. Bartholomew's Hospital where he Patrick suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure. He was two years old. The evidence showed that a certain Sister Sallabank had called for the Senior Practitioner (Dr. Horn) several times, by-passing the usual protocol of going through the normal channel of informing first the available physician in the hospital. Sister Sallabank asserted that there was extremely wrong with Patrick in his breathing. While his difficulty in breathing occurred intermittently on that day, Dr. Horn failed to attend to Patrick. Thus in his final bout with his respiratory defect, Patrick died due to cardiac arrest despite the attempt to revived him. Her mother sued as the Administratrix of his estate. The House of Lords through Lord Browne-Wilkinson dismissed the appeal ruling that although negligence was established against Dr. Horn, such negligence was not the cause of the injury of Patrick. The court said: "Where, as in the present case, a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered: Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613; Wilsher v. Essex Area Health Authority [1988] A.C. 1074. In all cases the primary question is one of fact: did the wrongful act cause the injury But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred. In a case of non-attendance by a doctor, there may be cases in which there is a doubt as to which doctor would have attended if the duty had been fulfilled. But in this case there was no doubt: if the duty had been carried out it would have either been Dr. Horn or Dr. Rodger, the only two doctors at St. Bartholomew's who had responsibility for Patrick and were on duty. Therefore in the present case, the first relevant question is "what would Dr. Horn or Dr. Rodger have done if they had attended" As to Dr. Horn, the judge accepted her evidence that she would not have intubated. By inference, although not expressly, the judge must have accepted that Dr. Rodger also would not have intubated: as a senior house officer she would not have intubated without the approval of her senior registrar, Dr. Horn.3 Kent v Griffiths [2000] 2 WLR 1158 This case involves proximity to create duty imposed by law. The delay of the ambulance to respond to the calls to take the plaintiff to the hospital as she was having an asthma attack, entitled the plaintiff to recover damages. There was no explanation for the dealy on tha part of the London Ambulance Service. The court found that the ambulance's log had been falsified to show an earlier arrival time. It concluded that that 'the delay was culpable', an unreasonable breach of duty, and causative of the damage. 4 The Common Law of "no duty" The English common law imposes no duty upon anyone to give aid to a person in need of one, regardless of the gravity of the situation involved and the reltive ease with which the other person might assist the other. In the real of medical attendance, this means that the doctor has no duty to treat a person unless such person is already the former's patient or is voluntarily treated by such doctor. 5 In the obiter dicta in one case, it was held that mere physical proximity between a doctor and a sick person creates no duty to treat. In this regard, a doctor who witnesses a road accident has no duty to stop and help. If he does volunteer 'his only duty is not to make the victim's condition worse'. 6 In the event a doctor stopped and helped such person, then he is considered to have assumed responsibility for the injured person, who thereby becomes his patient. In that event, the doctor is under a positive duty to use reasonable care to effect a cure or at least to employ professional skill to prevent deterioration, and not simply to refrain from making the patient 'worse'. 7 It seems that those who volunteer to give aid in an emergency may be held liable if in case the condition of the injured person gets worse. As aptly observed by Professor Fleming that the common law had consequently "reated the anomaly of subjecting the incompetent Samaritan to liability while excusing the Levite". 8 The Statute On the other hand The National Health Service (General Medical Services) Regulations 1992 under paragraph 4 of regulation 3 (2) states that: "A doctor's patients 4.-(1)Subject to sub-paragraph (2) and to paragraphs 9, 10 and 11, a doctor's patients are- (a) Xxx (h)persons to whom he may be requested to give treatment which is immediately required owing to an accident or other emergency at any place in his practice area, provided that- (i)he is not, at time of the request, relieved of liability to give treatment under paragraph 5, and (ii)he is not, at the time of the request, relieved, under paragraph 19(2), of his obligation to give treatment personally, and (underscoring supplied) (iii) he is available to provide such treatment, and any persons by whom he is requested, and agrees, to give treatment which is immediately required owing to an accident or other emergency at any place in the locality of any FHSA in whose medical list he is included, provided there is no doctor who, at the time of the request, is under an obligation otherwise than under this head to give treatment to that person, or there is such a doctor but, after being requested to attend, he is unable to attend and give treatment immediately required; 9 The Hypothetical Cases at hand Applying the foregoing doctrines and case laws and statutes, it is clear that under the common law rule of "no duty", Dr. Flo has no duty to render help to the injured person but under the National Health Service Regulations (NHSR for brevity) Eli can be considered as the patient of Dr. Flo in that situation even though Eli was not in her "list". Thus a cause of action may arise against Dr. Flo. The onus however would still fall on Eli to prove that Dr. Flo is not within the exception under sub-paragraph (h) of the NHSR. Going now to the liability of Dr. Gee, the case of Bolam and Bolitho would be applicable. The question should be asked if under such circumstances, a doctor of same competence with that of Dr. Gee would necessarily have the foresight to inspect whatever injury Eli may have sustained due to the accident. If so, then Dr. Gee would be found negligent. In the ordinary course of things, even a layman would know that a vehicular accident would necessarily entail the possibility of the victim having fractured bones, and thus, proper care should be given and within a reasonable time. However, even if Dr. Gee would be found negligent, it does not follow that he is liable for the consequential damages as Eli has the burden to prove that her permanent limp is the result of Dr. Gee's negligence. In other words, there must be proved causation in fact. In this regard, expert testimony is indispensable as a matter of evidence. On the other hand, the case of Kent is squarely applicable to the situation of Hazel. By accepting the calls of Ian, the ambulance from Hightown NHS Trust had the duty of care to respond within a reasonable time to take Hazel to the hospital. Having been late in taking Hazel, the hospital has exposed itself to a possible negligence liability in the courts of law considering that although there are a large volume of calls, the same was not prioritized according to the patient's condition. The liability of the hospital for the virus contracted by Hazel is ambiguous. True, it is for the hospital to maintain its sanitation, however, the fact that Hazel contracted the virus because of poor sanitation is a matter which is evidentiary. Otherwise, all patient and hospital personnel in the ward would have had contracted the said virus. Again, the onus lies in Hazel to prove that indeed, she was forced to stay an extra two weeks in the hospital as the direct result of the virus. Conclusion There is a growing sentiment that the common law rule of "no duty" should be abandoned. Moral sentiment, professional ethics, public expectation, and respect for human rights all point one way, English law should build on the dicta enunciated in Kent as an incremental development of the law of negligence. The proposition can hardly be an additional burden to persons in the medical field as giving aid to injured persons is not in any way alien to their line of profession. Indeed, the doctors are insulated from frivolous claims by the requirement pronounced in Bolam and Bolitho. 10 Moreover, it is high time for the parliament to enact a statute to imposed guidelines for doctors to follow in treating patient. To date, there are different views in handling a patient for a particular ailment which gave rise to the defense of doctors who are being sued for clinical negligence. 11 The fact that Bolam and Bolitho laid down guidelines for medical negligence litigation is not a license for doctors to deliberately abandon their oaths. On the other hand, such guidelines should not be extremely rigid and inflexible such as to leave a narrow room for doctors to exercise their judgments according to their expertise. In closing, there should be a balance in favor of doctors to pursue and improve their craft, but it should never be at the expense of the health and lives of unsuspecting patients. Bibliography The Role Of Clinical Guidelines In Medical Negligence Litigation: A Shift From The Bolam Standard Role of Clinical Guidelines, Ash Samanta, Oxford University Press 2006, http://www.lexisnexis.com/uk/legal/search/homesubmitForm.do, 26 Jan 2008 TERMS OF SERVICE FOR DOCTORS, Statutory Instrument 1992 No. 635, The National Health Service (General Medical Services) Regulations 1992, http://www.opsi.gov.uk/si/si1992/Uksi_19920635_en_10.htm, 26 Jan. 2008 J.G. Fleming, The Law of Torts (7th Edn, 1992) p. 135 Bolitho v. City and Hackney Health Authority, [1998] AC 232, http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd971113/boli02.htm, 26 Jan. 2008 Medical Samaritans: Is There A Duty To Treat, Kevin Williams, Oxford University Press 2001, http://www.lexisnexis.com/uk/legal/results/docview/docview.dorisb=21_T2916343141&format=GNBFULL&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T2916343144&cisb=22_T2916343143&treeMax=true&treeWidth=0&csi=302218&docNo=9, 26, Jan. 2008 Capital and Counties plc v Hampshire County Council, [1997] QB 1004 Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 Read More