Medical Law on The Example of The Case of Charles - Essay Example

The case of Charles In order to bring an action in negligence, there must be a duty of care, that duty of care should have been breached and such abreach should have resulted in harm. There is a general duty of care that was set out under the neighbor principle in the case of Donaghue v Stevenson1, where Lord Atkin stated that reasonable care must be taken to avoid acts and omissions that can reasonably be foreseen to injure a neighbor – or persons closely affected by the act in question. This principle was also upheld in the case of Home Office v Dorset Yacht Company.2 In the case of Anns v Merton LBC3 this principle was further refined to state that a duty of care would be owed when there is a sufficient relationship of proximity between the alleged wrongdoer and the person who suffered the damage. In the case of Caparo v Dickman4it was held that in order for a duty of care to exist, the situation should be such that the Court considers it fair and just and reasonable for the law to impose such a duty. In the case of Hedley Bryne v Heller5, the Court held that the duty of care would apply even in the case of giving information, when the plaintiff relies on the defendant’s skill and knowledge. Hence this case is especially relevant in the case of professionals, where a duty of care is expected on the basis of their professional abilities. This would also apply in the case of Dr. Green and since Charles was his patient, the condition for a relationship of proximity would also exist, therefore the Courts may well consider that a duty of care is owed by Dr Green which may have been breached. A duty of care is owed by doctors to their patients, and negligence may be established even in cases where there is an omission. For example, in the case of Blyth v Birmingham Waterworks6 negligence was equated to an omission to do something which a reasonable man would have done. On this basis, it may be argued that Dr. Green’s failure to thoroughly check Charles’ condition when he came to be treated initially could constitute an omission. In medical cases, the standard that has generally been applied in testing whether a doctor has breached the duty of care has been laid out in the case of Bolam v Friern Hospital Committee7. This case is especially relevant in the context of those situations where care has already been provided, as is the case with Dr. Green. According to the Bolam test, a doctor will not be in breach of his duty of care if he has acted in a manner that is supported by a majority of medical opinion on the basis of what is in the best interests of the patient. The question that arises is whether the majority of medical opinion would have supported Dr. Green’s assessment, diagnosis and care for Charles. Based upon the fact that another Consultant Dr. Brown has expressed the opinion that Charles’ injury was not properly diagnosed and treated during his first visit to the hospital, it does not appear likely that the Bolam test will be satisfied in Dr. Green’s case. In the case of Maynard8 the Court held that in order for negligence to be established, there should have been a failure to exercise the ordinary skill of a doctor. In this instance, it may be argued that since Charles had complained of pain in his right knee, Dr. Green did not fail in his doctor’s skills because he ordered an X ray of the knee. The rule established in Bolam was further refined in the case of Bolitho9 and the Court held that where a majority medical opinion was being relied upon as a basis to rule out breach of duty of care, it was also necessary to consider where the majority medical opinion was based on logical reasons. Applying this principle, it may be argued that it was not logical for Dr. Green to conduct an X ray of only the knee and not consider the possibility of injuries reaching further afield, especially since the child had a bad fall. On the basis of the above, it may be inferred that Dr Green did have a duty of care to his patient Charles, and he may have been in breach of this duty through improper diagnosis and treatment which was administered during his first visit. To establish negligence, it is also necessary to prove that the failure or omission of treatment caused the harm. In this instance, since it is the failure to properly diagnose the initial condition that led to the further complications, it may be possible to establish negligence on these grounds. In the case of McLaughlin v O’Brien10 the Courts held that the kind of harm caused can also extend to psychiatric or purely mental harm caused due to nervous shock, and this will also be taken into consideration when assessing a claim for breach of duty of care. In Charles’ case, since the damage is much more substantial, although it also includes psychiatric damages, it appears likely that a breach of duty of care may be found. However, even assuming that a majority of doctors support Dr. Green’s initial diagnosis and support his actions in conducting an X ray only of the knee, Dr Green may still be liable for the results of the operation that he has conducted. Although he may not have been negligent in conducting the operation, his failure to warn Charles’ parents of the possible consequences before actually carrying it out could be a subject of dispute. In the case of Chester v Afshar11 a neurosurgeon appealed to the House of Lords because the Courts below found him guilty of a breach of duty of care in failing to warn the patient of the potential hazards in carrying out an operation. The patient contended that had she known of the adverse risks, she would never have consented to the operation; hence if she had proceeded with the operation with full knowledge of the consequences, there would have been no causal connection. Doctors do owe a duty of care to their patients and this duty is imposed upon a doctor as soon as he assumes the responsibility for a patient’s care. Based upon the principles of the duty of care as laid out above, Dr. Green is a professional and when he is treating a patient, will have a relationship of sufficient proximity with him to establish that a duty of care may be owed. Therefore, he may be in breach of that duty of care when he has failed to warn Charles’ parents about the potential negative consequences of the operation, thereby establishing the causation between the avascular necrosis which Charles developed and his failure to warn. The risk in the operation was known although it was not common, therefore Dr. Green may have had the duty to warn the parents about it. The case of R v Bateman examined when an act of negligence could be equated to a crime. Lord Hewart CJ stated that, a negligent act could amount to a crime when: “the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment…”12 This may also be applicable in the case of Dr. Green, since Charles has now been victimised and has become deformed due to the chain of events arising out of Dr. Green’s improper diagnosis and subsequent failure to warn during the operation. Another issue that rises in this instance is whether there has been a breach, since there may not be agreement that can be said to be in place between Dr. Green and Charles, since the patient is too young. However, under Section 2 of the Children Act of 1989, when a child is too immature to make a request for medical services, the request must come from the parents or guardians. In this instance, since Charles’ parents have assumed the responsibility for Charles’ care by signing the form, therefore a duty of care will arise. The Court’s approach: Establishing negligence in medical cases can sometimes to be a difficult exercise, since the judges have to rely on evidence and they are not themselves doctors and do not have the benefit of medical knowledge. In the case of Whitehouse v Jordan13 a baby was delivered with forceps and this resulted in brain damage. In this case, the Court held that the obstetrician was not guilty of negligence because he had in effect, done the same thing many of his peers would have done. As a result, there was a respectable body of opinion in support of the doctor’s actions as a result of which he was not held to have breached the duty of care. Similarly, in the case of Dr Frietas v O’Brien14 a surgeon performed an operation without having taken an X ray first, as a result of which the operation failed. However in this instance also, the doctor was not held guilty of negligence because the defendant was able to show that a minority surgeon would have also done the same thing. Therefore, on this basis it would appear that if the doctor’s actions are supported by even a few other doctors, he may not be guilty of negligence and it may not necessarily require a majority of medical opinion to support his actions. However, the case of Bolitho is significant because it held that even where the doctor’s action can be supported by a minority of doctors, there could still be a finding of negligence if the actions are not logical. Dr. Green’s position in any claim filed against him for negligence is likely to be that his actions were not disparate from what a normal physician would have done under the same circumstances. He may also be able to garner support among other doctors on the basis that since the original complaint was made about the left knee, it was not unusual for him to focus his diagnosis to that area. Furthermore, where the operation is concerned, he can argue that although there was a possibility for the adverse results to occur, this was not so commonplace or so likely to occur that it would have been mandatory to provide the warning. The Court is likely to give due weight to this position if Dr Green is able to get a majority of medical opinion to support his case, since the Bolam principle still holds good. But there is also a chance that applying the new, more rigorous standard in Bolitho, negligence may still be found because there is already one opinion, i.e, that of Dr. Brown which places the blame for Charles’ injuries on Dr. Green in rendering an improper diagnosis and treatment. Bibliography * Anns v Merton LBC (1977) 2 All ER 492 * Blyth v Birmingham Waterworks (1856) 156 Eng Rep 1047 * Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 * Bolitho v City and Hackney Health Authority (1997) UKHL 46 * Caparo Industries v Dickman (1990) 1 All ER 568 * Chester v Afshar (2004) UKHL 41 * Donoghue v Stevenson (1932) AC 562 * Hedley Bryne v Heller (1963) 2 All ER 575 * Home Office v Dorset Yacht Company (1970) AC 1004 * Maynard v West Midlands Regional Health Authority (1984) 1 WLR 634 * McLaughlin v O’Brien (1983) 1 AC 410 * R v bateman (1925) 28 Cox’s Crim Cas 33 * Whitehouse v Jordan (1981) 1 All ER 267 Read More