Tom and Fays Legal Action against both Doctor Green and the Wellington Hospital - Case Study Example

Question Tom and Fay may take legal action for negligence against both Doctor Green and the Wellington Hospital either jointly or severally under the Civil Liability (Contributions) Act 1978. By virtue of Section 1 of the 1978, both the hospital and Dr. Greene are liable to pay damages to Tom and Fay.1 Moreover, the House of Lords in Barker v Corus (UK) Plc [2006] UKHL 20, explained that for the purposes of medical negligence the medical professional and his employer are regarded as joint tortfeasors.2 Liability for damages in medical negligence arises out of the fact that medical professionals are deemed ready, willing and able to provide medical treatment and advice and by implication are bound to have the necessary skill and knowledge of a reasonable medical professional.3 A registered medical professional offering his or her service is held to this standard.4 In addition, Lord Brown Wilkinson held in Wilsher v Essex Area Health Authority 1987] Q.B 730, CA [1998] AC 1074 that health authorities owe a duty of care to patients in their care.5 The question then turns on whether or not there was a breach of the standard and duty of care assigned to the medical profession on the part of Doctor Greene and/or Wilington hospital.. In determining whether or not there was a breach of the duty and standard of care, the Bolam test is applied. In Bolam v Friem Hospital Management Committee [1957] 1 WLR 582 the court devised a two-tier test to determine whether or not the medical professional or institution breached the applicable standard and duty of care.6 The first leg of the test inquires into whether or not the defendant professional acted in a manner that corresponds with the reasonable skilled person or vocation of the profession at issue.7 The second leg of the test inquires into whether or not the treatment or advice administered was consisted with a body of opinion in the profession.8 In ascertaining whether or not Doctor Greene, acting on behalf of and on the authority of the hospital complied with the Bolam standard of care, the court will look to the circumstances in which the treatment was administered and the attending physician’s post or position.9 On the facts of the case for discussion there is no specific evidence of Dr. Green’s position or post within the hospital, except that he is from the casualty department. The question then turns on whether or not a doctor in the emergency room who specializes in the treatment of children would have taken the action that Dr. Green took. Dr. Green administered a sedative to Charles which purportedly numbed any pain he was in and ordered an x-ray of his knee. There are two facts that stand out and appear to support a contention that Dr. Green did not act with the care and skill of a casualty doctor in Dr. Green’s position. First, Charles complained of pain in his right leg and not just his knee. Rather than examine Charles’ leg and the connecting areas such as his hip and spine for the purpose of determining whether or not the injury was localized or emanating from another more expansive injury, Dr. Green numbed the pain altogether. It is doubtful that a casualty doctor would have administered a sedative to any patient without first determining the source and full nature of the pain. This would have required a full examination of Charle’s leg and the adjourning areas prior to administering a sedative and would have required x-rays of those areas rather then just the right knee. It is therefore hardly surprising that Dr. Green’s initial treatment did not discover the hip injury. It would appear from the facts of the case for the discussion Dr. Green was indeed negligent since it is very likely that his treatment and advice does not correspond with the treatment and advice that would have been administered by a medical practitioner in his position. Even if, the treatment is deemed to be negligent, the advice given by Dr. Green does not appear to accord with reasonable skill and practice of a doctor in casualty situation. Once the x-rays revealed that there were no injuries to the knee, the doctor should have ordered more expansive x-rays or at the very least referred Charles to a pediatrician for a more thorough examination. Discharging Charles under the influence of sedatives and ordering rest for two days, when Charles complained of a great deal of pain to his right leg, does not appear to accord with the reasonable care and skill of a medical practitioner assigned to the casualty department.10 In the days that followed Charles condition did not improve, evidencing the presumption that Dr. Green’s treatment and advice was misguided. Charles did in fact sustain a serious injury, once that required corrective surgery. While this fact by itself is not evidence of negligence, it is at least evidence that Dr. Green’s treatment and diagnosis was erroneous. Having regard to the Bolam test and the expansions to that test as previously discussed, it would appear that Dr. Green’s action was negligent in the sense that he did not take the action of a reasonable practitioner in his position. If the court is satisfied that Dr. Green was negligent the matter does not end there. Fay and Tom will be required to prove causation in the sense that Dr. Green’s negligence caused the avascular necrosis in the region of his hip injury which is at risk of causing deformity. Dr. Brown, a consultant was overheard by a nurse at the hospital stating that had Charles’s diagnosis and treatment discovered the hip injury and spinal dislocation upon his admission to the hospital initially he would not currently be confronting the risk of deformity. The question then is whether or not Dr. Green’s initial treatment broke the chain of causation so that it was not the actual fall that rendered Charles vulnerable to deformity, but Dr. Green’s negligent treatment. Clerk and Lindsell maintain that medical treatment will only break the chain of causation if the treatment was: “so grossly negligent as to be in no sense a response to the injury inflicted by the defendant.”11 This tenet of novus actus interveniens with respect to medical negligence was indorsed by the court in Conley v Strain [1988] IR 638.12 On the facts, it is doubtful that administering sedatives to a child, omitting to examine the entire leg and ordering an x-ray of the knee only is in any sense an appropriate response. To this end, the initial treatment can be said to rise to the level of gross negligence so that it caused the injury. Tied to the chain of causation is the determination of whether or not Charles would have been facing the risk of deformity, a condition for which there is no known treatment, with or without Dr. Green’s initial diagnosis and treatment. In Barnet v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, it was held that although the doctor had been negligent the plaintiff would have suffered the injury in any event.13 A defence of this nature however, is not likely to hold up since Dr. Brown already stated that it was quite possible that the risk of deformity may never have occurred had Charles’ injury been discovered and treated on admission initially. Another issue giving rise to a claim in negligence is the issue of informed consent. It is this issue that rendered Charles paralyzed in his left leg. According to the facts of the case for discussion, there was a small risk, a risk nonetheless, that the corrective surgery could result in the paralysis and a risk that Dr. Green is presumably aware of. The risk of this side effect was not communicated to Tom and Fay at any time before they signed the surgery consent forms. The doctrine of informed consent is necessary to justify medical treatment when there is a risk of harm.14 The doctrine is predicated on the theory that a person cannot provide informed consent if he or she is not aware of the residual risks of harm. 15 However, particularly connected with the medical profession the courts have been rather inconsistent with the interpretation and application of the doctrine of informed consent. It is therefore impossible to predict with any degree of certainty how the courts will treat the doctrine of informed consent in this case. In general the courts take the position as set out in Chatterton v Gerson. In this case it was ruled that once a patient has been informed of the nature of the proposed in wide terms, and the patient consents, he/she is taken to consent to all aspects of the proposed procedure.16 Dr. Green did not explain the proposed procedure, he merely stated that it was necessary to restore Charles to his pre-accident condition. The courts take the position that uninformed consent when there are residual side effects is tantamount to no consent at all. When consent is obtained in these circumstances and harm occurs as a direct result of the procedure, the attending physician could be liable for negligence as well the tort of battery,17 The doctrine of informed consent has been expanded by the courts, incorporating the “prudent patient test” which was formulated in Sidaway v Governors of the Bethlehem Royal.18 The purpose of the prudent patient test is the protection of both the doctor and his/her patient.19 The prudent patient test permits the doctor to take action in a medical emergency in circumstances where failure to do so could result in greater harm to the patient.20 Ultimately, the attending physician is required to use his clinical discretion.21 Even so, the doctor, is under a duty to disclose that which a patient would want to be aware of so as to make an informed decision.22 No doubt Tom and Fay would have wanted to know that the operation could result in paralysis, Dr. Green and/or the hospital may invoke the doctrine of necessity as a defence in this regard. It was held in St. George’s healthcare NHS Trust v S. t that the doctrine of necessity is treatment in the patient’s best interest.23 This defence can be defeated by proof that the necessity of the surgery was outweighed by the risk of paralysis. Ultimately, it will be very difficult for Dr. Green and the hospital to escape liability. The facts reveal that Dr. Green was negligent from the outset and throughout. First, in his failure to properly examine Charles and secondly, in his failure to disclose the residual risks of harm to Charles. Question 2 While Dr. Green is at liberty to rely on the evidence of medical experts that he acted in a manner that corresponds with accepted medical practice, Tom and Fay may rely on medical experts to establish that there was another more appropriate medical treatment that is likewise an accepted medical practice. 24 The House of Lords ruled that whether or not the treatment was consistent with an accepted medical practice, the decision to employ the treatment must be logical and withstand a risk/benefit analysis.25 The risk/benefits analysis is compromised in this case. The risk of not performing the medical procedure meant only that Charles would have suffered a post-accident condition in which he could have retained the use of this legs, although with some discomfort and difficulty. The risk of harm in performing the operation appears to be greater in that Charles faced paralysis. The timing of the proper diagnosis is also problematic for the risk/benefits analysis. According to Dr. Brown, had Charles been diagnosed and treated for his actual injuries upon admission into the hospital the risky surgery would not have been necessary at all and Charles may have likely healed normally. So the fact that Dr. Green may have used an accepted medical practice, it was only necessitated as a result of his initial treatment. This fact points back to the medical practitioner’s standard of care. The requisite standard of care required that Dr. Green take the kind of action that a doctor in his position would have taken in the particular circumstances.26 Having regard to the fact that Charles was a child, it is entirely unlikely that the reasonable medical practitioner in Dr. Green’s position would forego a thorough examination of Charles and rely on his account of the pain. It is also entirely unlikely that a doctor, having been told that his patient suffers from a leg pain would order an x-ray of the patient’s knee and no others. The standard of care to administer the kind of medical care a reasonable practitioner would administer in the circumstances carries over to the doctrine of consent and the prudent patient test. In this regard the standard of care requires full and frank disclosure of the inherent risk of harm associated with the proposed procedure.27 Since the operation was necessitated by Dr. Greene’s previous breach of the standard care, the failure to inform only adds to the breach of the standard of care. Bibliography Barker v Corus (UK) Plc [2006] UKHL 20 Barnet v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 Bolam v Friem Hospital Management Committee [1957] 1 WLR 582 Bolitho v. City and Hackney Health Authority 1998] AC 232 Chatterton v Gerson [1981] 1 All ER 257 Civil Liability (Contributions) Act 1978 Clerk, J.; Lindsell, W. and Brazier, M. (1995) Clerk and Lindsell on Torts. Sweet and Maxwell De Cruz, P. (2001) Comparative Healthcare Law. Routledge Cavensish Dickens, B. and Cook, R. (2004) “Dimensions of Informed Consent to Treatment.” International Journal of Gynecology and Obstetrics 85, 309-314. F v West Berks HA (Mental H Comm Intervening) [1989] 2 All ER 545 Jones v. Fay (1865) 4 F & F 525 MaClean, A. (2006) “The Doctrine of Informed Consent: Does it Exist and Has it Crossed the Atlantic?” Legal Studies, 24(3) 386-413 McClean, S. (2006) First Do No Harm, Law, Ethics and Healthcare. Ashgate Publishing Ltd Re T [1992] 4 All ER 649 Sidaway v Governors of the Bethlehem Royal Hospital [1985] 1 All ER 643 St. George’s healthcare NHS Trust v S [1998] 3 WLT 936 Wheat, K. (2005) “Progress of the Prudent Patient: Consent after Chester v Afshar.” Anaesthesia, 60(3), 217-219. Wilsher v Essex Area Health Authority 1987] Q.B 730, CA [1998]AC 1074 Read More