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Chapter 13

Professional and Clinical


Negligence
Learning Outcomes
After reading this chapter and the reference material you should be able to:
1. explain what is meant by professional and clinical negligence;
2. have an awareness as to the role of a professional negligence action in
both determining the duty of care owed by professionals and the
standard of care they must exercise in practice;
3. understand why there has been a growth in such claims;
4. define, understand and be able to apply the standard of care owed by
professionals;
5. critically evaluate the role of the courts and professions in determining
the standard of care;
6. explain how the courts determine both the level of skill to be exercised
by professionals and the state of knowledge they are expected to
possess;
7. consider how the rules in both causation and remoteness apply in
professional negligence claims;
8. determine how the issue of proof and, in particular, the Doctrine of Res
Ipsa Loquitur, is utilised within professional/clinical negligence claims.

13.1 Introduction
The aim of this chapter is to provide an introduction to professional personal
injury claims and, in particular, clinical (formerly medical) negligence. The
term professional negligence refers to negligence arising within a
professional sphere such as the activities of accountants, lawyers, surveyors
and architects. Clinical negligence refers not only to the negligence of
doctors but to all the related medical professionals such as nurses, dentists,
pharmacists and physiotherapists. The basic litigation required for all these
claims is the same; the main difference lies in establishing whether a
particular professional duty of care has been breached.

13.2 Functions of malpractice litigation


There are several functions behind professional malpractice claims
including:
1. Such claims make professionals more accountable for their actions.
2. The threat of litigation ensures that each profession maintains as high a
standard of practice as possible within their area.
3. Explanations are provided when procedures go wrong.
4. Compensation and/or an apology are given to any wronged parties.
5. A degree of retribution is provided to the wronged party.

13.3 Reasons for the


negligence claims

growth

in

professional

A number of reasons can be given for the growth in such claims. Certainly
there has been a profound change in the relationship between the
professional and his/her client, particularly so within the clinical sphere.
Whereas there was once an automatic deference and acceptance by clients,
often there is now open scepticism and a willingness to challenge the
authority of such professionals. Much of this ethos has come from America.
Alongside this, within the medical world there has been a tremendous
growth in both technology and the availability of clinical drugs for treatment.
This has had a significant effect on the attitudes of ordinary people in terms
of their expectations as to the results of any treatment. Many (falsely)
assume that the outcome of medical treatment is always going to be
successful and on the occasions when things do go wrong, answers are
demanded.

ACTIVITY POINT

What areas of medical practice do you think attract the most litigation?
Can you give reasons for your answer?

13.4 The duty of care


It is well established within the professional/client relationship that a duty of
care exists. It is clear from many authorities that a doctor owes his/her
patient a duty of care in the normal course of events. For example, in
Cassidy v Minister of Health [1951] 2 KB 343 Lord Denning clearly stated
that such a duty existed, and in R v Bateman (1925) LJKB 791 Lord Hewitt
CJ stated:

If a doctor holds himself out as posessing special skill and knowledge, and he
is consulted, as possessing such skill and knowledge, by or on behalf of the
patient, he owes a duty to the patient to use due caution in undertaking the
treatment. If he accepts the responsibility and undertakes the treatment and the
patient submits to his discretion and treatment accordingly, he owes a duty to
the patient to use diligence, care, knowledge, skill and caution in administering
the treatment. No contractual relation is necessary, nor is it necessary that the
service be rendered for reward.

It should not, however, be assumed a doctor always owes a duty of care.


For example, if a doctor provides advice for an occupational health report,
there is no direct doctor-patient relationship and a duty to prevent economic
loss does not exist. See Kapfunde v Abbey National plc (1998) 46 BMLR
176.
In an emergency, it would appear from the decision of Barnett v Chelsea &
Kensington HMC [1969] 1 QB 428 (discussed in Chapter 7), that once
treatment has been undertaken by a medical professional, a duty of care is
owed.
This obviously applies mostly to those entering Accident &
Emergency Departments. Also note the National Health Service (General
Medical Services) Regulations and the General Medical Councils
Guidelines to Good Practice.
Note that the duty to prevent patients harming themselves and/or others and
the rights of third parties were covered in Chapter 3. See Osman v
Ferguson [1993] 4 All ER 344, Clunis v Camden & Islington Health
Authority [1996] QB 978 and Goodwill v British Pregnancy Advisory
Service [1996] 7 Med LR 129.
It would appear that the courts do not share the same jocular approach to
the ability of doctors to write clearly as that of the general public. In
Prendergast v Sam & Dee Ltd [1989] 1 Med LR 36 a doctor was found to
be jointly liable, along with a pharmacist, for the incorrect dispensing of a

drug. This had occurred, largely, because the doctors handwriting could not
be deciphered.
Likewise, many authorities discuss the duty of care owed by a solicitor to
his/her clients (see Ross v Caunters [1980] Ch 297 and White v Jones
[1995] 2 WLR 187 both cases in Chapter 3). From your reading in Chapters
2 to 5, you will have come across numerous examples in which a
professional duty of care was established by the courts.
Health Authorities/Trusts have a duty to provide the services of medical
professionals with sufficient skill and experience. In both Wilsher v Essex
Area Health Authority [1988] AC 1074 and Griffiths v Kent Ambulance
Service (1999) Lloyds Rep Med, the courts have stated that a failure to
provide doctors or services of a sufficient level of competence could be
regarded as a breach of the duty of care (also see Bull v Devon AHA
[1993] 4 Med LR 117). However, this duty of care does not necessarily
extend to the Secretary of State for Health. In the highly emotional case of
R v Cambridge Health Authority ex p Child B (a minor) [1995] 6 Med LR
250, a local health authority declined to continue further experimental
treatment on a young girl dying of myeloid leukaemia. The cost of the
treatment was estimated at 75,000 whilst the chances of success were
between 10% and 20%. As Sir Thomas Bingham MR stated, to impose an
absolute duty on a health authority to provide every treatment available
would be unreasonable. Clinical decisions as to treatment should be for
medical professionals and not the courts.

13.5 Breach of the duty of care


In professional negligence cases the reasonable man test (as illustrated in
Nettleship v Weston [1971] 2QB 691, the learner driver case) is slightly
modified. In order to show a breach of duty, the claimant must show that the
doctor (for example) has taken a course of action, which would not have
been acceptable to any reasonable body of medical opinion. The test
utilised was actually developed in relation to clinical negligence but has been
subsequently accepted to cover anyone exercising professional skills. This
principle has become known as the Bolam test after the case Bolam v
Friern Hospital Management Committee [1957] 2 All ER 118 (in Horsey &
Rackley at pages 206-7).
The case concerned a claimant requiring treatment for depression. At the
time there were two bodies of competent medical opinion as to the
procedure to be used in giving electro-convulsive therapy (ECT). Some
advocated the use of relaxant drugs whilst other psychiatrists did not. In the
event, no such drugs were used and the claimant suffered a fracture of the
pelvis. It was admitted that if the drug had been used then the risk of the
fracture would have been excluded. The test to determine a breach was
stated by McNair, J as follows:

The test as to whether there has been negligence or not is not the test of the
man on top of the Clapham omnibus because he has a special skill. The test is

the standard of the ordinary reasonable 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.. A doctor is not guilty
of negligence if he has acted in accordance with a practice accepted as proper
by a reasonable body of medical men skilled in that particular art a doctor is
not negligent, if he is acting in accordance with such a practice, merely
because there is a body of medical opinion which takes the contrary view.

This judgment was later approved and adopted by the Lords. In effect, this
means that if a defendant can demonstrate that he has acted in accordance
with a reasonable body of opinion, they will not have breached their duty
and, therefore, there is no liability. Professionals are judged by the standard
of the ordinary skilled man exercising and professing to have special skills.
This does not necessarily mean possessing the highest level of skill; merely
the ordinary level of skill associated with other competent persons practising
within that area (see Level of Skill at 13.6). The courts make reference to
professional guidelines in order to determine the standard required.
A justification for the Bolam rule was given by Lord Scarman in Maynard v
West Midlands R.H.A. [1985] 1 WLR 634. He stated:

Differences of opinion exist, and continue to exist, in the medical as in other


professions. There is seldom any one answer exclusive of all others to
problems of professional judgment. A court may prefer one body of opinion to
the other; but that is no basis for a conclusion of negligence.

ACTIVITY POINT

As a pivotal case, you should read the full judgment of Bolam in the
law reports.
Do you think that this approach, to determining the professional
standard of care, is compatible with how the courts decide the
standard generally?
In Maynard v West Midlands R.H.A. [1985] 1 WLR 634 the House of Lords
refused to become entangled in choosing one professional opinion over
another. In such situations, the Bolam test states that a doctor has to act in
accordance with a practice that is accepted by a reasonable body of medical
opinion. It is perfectly valid to have conflicting professional opinions.
Many subsequent cases have confirmed the Bolam Test; often in relation to
other issues. One issue examined by the courts is the level of information
as to the risks a patient should expect to be told about. In Sidaway v
Board of Governors of the Bethlem Royal Hospital [1984] AC 871 the
claimant, who was suffering from pain in her neck and shoulders, was
advised by her surgeon to have an operation on her back. The surgeon
failed to warn her that there was a very small risk (around one per cent) of
damage being done to her spine. The patient consented to the operation

and it was performed with all due care and skill. However, the risk of injury
materialised, leaving the patient disabled. The claimant claimed that the
surgeon had been negligent in failing to disclose the risk. The House of
Lords, applying the Bolam test, held the surgeon not liable. The surgeon
had conformed with a responsible body of medical opinion which would not
have warned of the risk and thus escaped liability. However, their Lordships
were careful to point out that this did not mean that the medical profession
had complete control over the practice of disclosure. Lord Bridge regarded a
ten per cent risk of stroke arising from a medical procedure as a situation
whereby:

A disclosure of a particular risk was so obviously necessary to an informed


choice on the part of the patient that no reasonably prudent medical man would
fail to make it.

Lords Bridge and Templeman, in Sidaway, placed great emphasis on the


fact that Mrs Sidaway had not specifically asked the surgeon about the risks
of the operation. Had she done so their Lordships were of the view that the
doctor would be obliged to answer both truthfully and fully as the questioner
requires. This principle was applied in Chester v Afshar [2004] UKHL 41.
The claimant, who was considering an operation on her spine, specifically
asked her consultant about the risks inherent in the operation. The surgeon
failed to disclose the very small risk of paralysis resulting from surgery. After
the operation, the claimant suffered severe nerve damage, which caused
paralysis in one leg. The House of Lords found the defendant to be in
breach of duty for failing to warn of the risk, however slight it might be. The
courts will consider the emotional state of a patient when being told the
medical risks involved (Pearce v United Bristol Healthcare NHS Trust
(1998) 48 BMLR 118).
The Bolam test has also been applied to the standard of handwriting on a
prescription (Prendergast v Sam & Dee Ltd, The Times, 24 March 1988);
the use of alternative medicine (Shakoor v Situ [2000] 4 All ER 181) and
experimental medicine (Simms v Simms [2003] 1 All ER 669).
In Whitehouse v Jordan [1980] 1 All ER 650, a senior registrar performed a
Caesarian section after unsuccessfully trying to deliver the child by forceps.
He had pulled on the baby six times over a 25 minute period. The Court of
Appeal reversed the trial judges decision of negligence. A distinction had to
be made between an error of judgment and actual negligence. As Lord
Fraser stated:

Merely to describe something as an error of judgment tells us nothing about


whether it is negligent or not. The true position is that an error of judgment
may, or may not, be negligent; it depends on the nature of the error. If it is one
that would not have been made by a reasonably competent professional man
professing to have the standard and type of skill that the defendant held himself
out as having, and acting with ordinary care, then it is negligent. If, on the
other hand, it is an error that a man with ordinary care might have made, then it
is not negligence.

One commonly asked question is exactly what constitutes a reasonable


body of opinion? What is clear is that such a body does not have to
represent the majority of opinion, merely an acceptable body. In De Freitas
v OBrien and Connolly [1995] 6 Med LR 108 the body of medical opinion
(concerning a particular medical procedure) consisted of 11 consultants out
of over 1000.
ACTIVITY POINT

Read the case of Sidaway in full.


Do you think the Lords adopted the correct approach as to the level of
risk that should be disclosed to patients? How do you think the
decision in Pearce v United Bristol Healthcare NHS Trust (1998) 48
BMLR 118 has modified Sidaway?

13.5.1

Criticisms of Bolam
Many criticisms have been made concerning the Bolam Test including:
1. It is generally weighted too heavily in favour of the (defendant)
professions.
2. It provides yet another means by which professions protect themselves.
(All professions are a conspiracy against the laity per G.B. Shaw).
3. The rule allows the professions to determine their own standards and
codes of practice.
Such standards would appear to be only
exceptionally reviewable by the courts. As Lord Scarman famously
stated in Sidaway (above), In short, the law imposes the duty of care;
but the standard of care is a matter of medical judgment.
4. The Bolam Test allows standards to be set too low. Treatments, which
are on the boundaries of acceptability, still meet the general standard of
care. In fact, in Bolam itself, the non-use of restraints was generally
frowned upon on the basis that there was too high a risk of fracture.
Many academic articles, at the time, confirmed this fact.
5. What is a reasonable body of opinion within a profession and how many
persons constitute such a body? As such, no precise guidelines have
been given (but note De Freitas (above)).
6. The Bolam Test is said to be descriptive (ie based on what is actually
done) rather than normative (ie what ought to be done) which is the
basis for general claims in negligence.

13.5.2

Challenges to the Bolam Test


The challenges made to the Bolam Test can be categorised into three
questions:
1. Can a judge make a choice between different bodies of medical or
professional opinion?
Authorities appear to indicate that a judge can initially decide whether a
specific body of opinion is reasonable, though such a power would only
rarely be exercised (see Maynard above). In Lybert v Warrington
Health Authority, The Times, 17 May 1995, a warning about the
possibility that a sterilisation operation may fail was held to be
inadequate despite it representing standard practice. Likewise, in
Thomson v James and Others (1996) 31 BMLR 1, 3 April 1996, a GP
failed to observe government advice about informing parents to use the
MMR vaccination on their children; a child became brain damaged as a
result. Here the doctor was found to be negligent for failing to follow
standard practice as set by the Department of Health.
2. When will the courts state that a deviation from standard professional
practice is to be regarded as negligence?
Here there appears to be different approaches adopted depending upon
whether the case involves the medical profession or other professions.
It is clear that much deference is given to medical opinion, even if such
opinions clearly deviate from the norm. With other forms of professional
practice this is less so. Likewise, it is clear that the courts do not simply
look at the majority opinion. In Bolam itself, the practice adopted by the
defendants was said to be obsolete but it was still not classified as
negligence. As we have already seen in De Freitas (above), despite
evidence that only 11 out of 1000 surgeons would have carried out a
particular surgical procedure in the manner in question, the court still
accepted such a small percentage of opinion was still reasonable. It is
arguable that with the proliferation of Codes of Practice, Guidelines and
Protocols, more emphasis will be placed on standard practice in the
future. Likewise, the establishment of the National Institute for Clinical
Excellence (NICE) on the 1st April 1999 has already lead to national
criteria and standardisation as to the treatment of certain conditions.
3. How is a reasonable body of medical opinion determined?
In many Commonwealth jurisdictions the Bolam Test has either been
radically modified or rejected altogether. In the Australian case Rogers
v Whittaker (1992) 67 ALJR 47, Mr J. Gaudron in the High Court, gave
a very powerful rejection of the test. The House of Lords had the
opportunity to re-assess the test in Bolitho v City & Hackney Health
Authority (1997) 39 BMLR, (HL). The claimant was a two-year-old boy
who had suffered brain damage following a cardiac arrest; this itself
caused by his bronchial passages becoming blocked. The defendants
accepted that the doctors failure to attend had been negligent. The
question for the House of Lords was one of causation, ie did the
defendants omission cause the claimants injuries. The defendant
Health Authority argued the But For Test (see Chapter 7) and this was
accepted by the court, ie the doctor would not have intubated the patient
had she arrived earlier anyway. In addition, the question arose as to
whether a reasonable doctor would have intubated in such
circumstances. In other words, that the doctors failure to intubate was,

in itself, negligent? Expert evidence was divided and it was argued by


the defendants that Bolam applied. The House of Lords, however,
stated that Bolam was not conclusive. The court could inquire whether
a body was reasonable or responsible and as Lord Browne
Wilkinson stated:

These decisions demonstrate that in cases of diagnosis and treatment


there are cases where, despite a body of professional opinion
sanctioning the defendants conduct, the defendant can properly be
held liable for negligence...In my judgment that is because, in some
cases, it cannot be demonstated to the judges satisfaction that the
body of opinion relied upon is reasonable and 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 risk and benefits of adopting a particular medical practice,
a reasonable view necessarily presupposes that the relative risks and
benefits have been weighed 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.

ACTIVITY POINT

Do you think that the statement given in Bolitho, with regards to the
Courts being the final arbiters of what is a reasonable body of opinion,
is satisfactory?
According to Professor Andrew Grubb, the judgment in Bolitho appears to
establish a three-fold review of expert evidence:
1. Have the experts directed their mind to all the relevant details; and,
2. Have they applied a logical, sensible and rational process in reaching
their conclusions; and,
3. Is their decision defensible as being reasonable?
The first two questions are concerned with the decision making process; the
last question the substance of the decision itself. On the facts of the case,
the two potential scenarios were both logical and defensible. In fact, Lord
Browne-Wilkinson did acknowledge that it would only be in rare or
exceptional cases that judicial intervention could be justified. He stated: it
will seldom be right for a judge to reach the conclusion that views held by a
competent medical expert are unreasonable. It is clear, however, that
Bolitho has strengthened the courts role in respect of such litigation.
Clinical judgment will rarely be declared unreasonable or irrational but the
option by the court to do so is there.

There are some signs that the approach in Bolitho is being more widely
adopted. See Marriott v West Midlands RHA [1999] Lloyds Rep Med. 23.

13.6 The level of skill


As a rule those persons learning skills are required to exercise the same
standard of care as people already claiming to have such skills. As with
learner drivers (Nettleship v Weston [1971] 2 QB 691), trainee experts
such as surveyors, lawyers, accountants and doctors, etc, must demonstrate
the same level of skill in exercising their profession as those already
proficient in that skill.
We have already considered the standard of care owed by a professional vis
a vis trainees and juniors in Chapter 6. Suffice to say, being a junior or
novice provides no defence in a negligence claim. A professional, like a
doctor, must meet the standard of care expected of his rank/post. The
leading authority on this point with regards to clinical negligence is Wilsher
v Essex AHA [1986] 3 All ER 801 in which a junior doctor placed a catheter
into a vein rather then an artery leading to an excess of oxygen in the young
patient and, it was argued, subsequent blindness. The Court of Appeal
dismissed the argument that a lower standard of care had to apply to those
training within a profession. As Glidewell LJ stated, in applying the Bolam
Test a uniformed standard of care had to be adopted otherwise:
.inexperience would frequently be urged as a defence to an action for
professional negligence. However, the Court did go on to state that a junior
doctor would not, necessarily, be in breach if he or she were to seek advice
from a more senior/experienced colleague (as was, in fact, the case in
Wilsher). Liability, in such cases, would then fall upon the more senior
doctor for a lack of supervision. According to Bull and Another v Devon
AHA [1993] (above) potentially, a Health Authority could be liable for putting
a junior doctor in a situation with little or no supervision. With regards to the
standard expected from consultants see Ashcroft v Mersey RHA [1983] 2
All ER 245.
ACTIVITY POINT

Read Lord Browne-Wilkinsons statement in Wilsher. In your own


words, paraphrase the legal justification he is making for his decision.

10

13.7 State of knowledge


As we have previously explained when looking at the general principles of
negligence, the courts will not expect a reasonable person to anticipate
unknown risks (Chapter 6). Unforeseeable risks can obviously not be
anticipated and, therefore, failing to guard against them will not be regarded
as negligence. As you will see when we consider product liability, this is
often referred to as the State of Art or Developmental Risk defence and
is probably best illustrated in Roe v Minister Of Health [1954] 2 QB 66.
Here the claimant suffered permanent paralysis from the waist down having
been injected with a spinal anaesthetic called nupercaine. The nupercaine
was traditionally stored in glass ampoules. The ampoules were kept in a
phenol solution in order to keep them disinfected. Unknown to anyone,
minute invisible cracks had formed in the ampoules, which had allowed the
phenol to contaminate the nupercaine. Although this evidence was
professionally doubted, it was accepted at trial. It was held that the
defendants could not have guarded against such an event happening on the
basis that it was unforeseeable and, therefore, they escaped liability for
negligence.
Obviously each case will turn on its own facts and, therefore, there may be
cases where the risk of harm can be appreciated. In N v United Kingdom
Medical Research Council; Sub Nom Creutzfeldt Jakob Disease
Litigation [1996] the court held there was negligence in failing to carry out a
full clinical appraisal with the use of Human Growth Hormone (HGH) and its
causational relationship with Creutzfeldt Jakob disease. Such a link had
emerged from CJD cases from 1977 onwards.
Despite what many might believe, experts are not expected to know every
new idea, practice or latest developments within their specialism. As McNair
J, stated in Bolam:

It is sufficient if he exercises the ordinary skill of an ordinary competent man


exercising that particular art.

In Crawford v Charing Cross Hospital, The Times, 8 December 1983, the


claimant suffered Brachial Palsy whilst having a blood transfusion during
surgery. His argument was that the anaesthetist should have been aware of
such a risk from an article in the Lancet published six months earlier. The
Court rejected the claim for negligence. It would be both impractical and
unrealistic to expect a professional to know every new development in
his/her field at any given moment in time.
It is certainly arguable that this situation may well change with the constant
development in modes of communication such as on-line databases (see
above).
An obvious lapse of professional standards will, however, occur if a
professional simply overlooks a well-known procedure or technique. As we
have already seen in Chapter 3, in White v Jones [1995] 2 AC 207 a
solicitor was found negligent in delaying the drawing up of a will with the
result that beneficiaries were excluded from the provisions in an estate.

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13.8 Proof of negligence and causation


Two of the principal reasons why many professional negligence cases fail to
succeed are, firstly, providing actual proof or evidence of negligence and,
secondly, the difficulty in establishing causation.
It is for the claimant to provide evidence of the negligence on the balance of
probabilities. The assessing of such evidence is often a difficult task for the
claimant especially in clinical negligence claims. Occasionally the Doctrine
of Res Ipsa Loquitur (the situation speaks for itself) may assist (see
Chapter 6).
In certain cases the courts may make a rebuttable presumption that there
has been negligence and it is for the defendant to demonstrate the opposite.
Obviously this can greatly assist the claimant. The criteria for this doctrine
was laid down in Scott v London & St Katherines Docks [1865] 2 HxC
596.
In Cassidy v Minister of Health [1951] 1 All ER 575 it was held that a
patient who went into hospital for an operation to correct two stiff fingers, but
left with four stiff fingers, could utilise the doctrine. There must have been
some negligence by the medical authority at some point.
Also see Mahon v Osborne [1939] 2 KB 14 (a swab left inside a patient)
and Ratcliffe v Plymouth & Torbay Health Authority [1998] Lloyd Rep
Med. 162 (CA). Despite the argument that Res Ipsa Loquitur should apply in
the majority of clinical negligence cases (satisfying all the relevant criteria)
the courts have been reluctant to utilise the Doctrine. Lord Denning in
Hucks v Cole [1968] 112 SJ 483 stated that it should only be used in the
most extreme and obvious of cases. Likewise, in Bull v Devon Area Health
Authority [1993] 4 Med LR 117, Mustill LJ went so far as to doubt if res ipsa
loquitur could ever assist in clinical negligence cases if all the facts be
before the court.
Factual causation is established by the but for test; but for the defendants
action, would the victim have suffered the injury anyway. A clear illustration
of this can be seen in the case of Barnett v Chelsea & Kensington
Hospital Management Committee [1969] 1 QB 4282. A night watchman
attended the casualty department of a hospital with claims of vomiting and
stomach pains. The doctor failed to examine him but instructed one of the
nurses to send him to his GP. In the event, he died of arsenic poisoning. It
was accepted that the doctor had been negligent; the question for the court
was whether this negligence actually caused the death. Utilising the but for
test the court held it had not. The man would have died anyway, regardless
of any examination by the doctor. Unfortunately, the patient had arrived at
the hospital too late for any antidote to take effect. The defendant was,
therefore, not liable (despite the hospital admitting the existence of a duty
and that such a duty had been breached by the doctor). In Wilsher (above)
there were 6 possible causes of the Retrolental Fibroplasia (blindness) and
excess oxygen was just one of these. The burden of proof had not been
satisfactorily discharged by the claimant.
In a more recent case of Bailey v Ministry of Defence [2008] EWCA Civ
883, however, the courts have shown that in exceptional circumstances they

12

are prepared to depart from the strict application of the but..for test. The
respondent had a cardiac arrest and brain damage after choking on her
vomit. The judge had found that the physical cause of the cardiac arrest was
the appellants weakness and inability to react to her vomit. This weakness
was caused partly by the appellants lack of post-operative care and partly
by a non-negligent cause - the pancreatitis from which she had been
suffering. In finding for the respondent the Court of Appeal held:

In a case where medical science could not establish the probability that but
for an act of negligence the injury would not have happened but could
establish that the contribution of the negligent cause was more than negligible,
the but for test was modified, and the claimant would succeed. The instant
case involved cumulative causes acting so as to create a weakness and thus
the judge had applied the right test and was entitled to reach the conclusion he
had reached.

It should be noted that in this case, as in previous exceptional cases such as


Fairchild v Glenhaven (2003) 1 AC 32 and Bonnington Castings Ltd v
Wardlaw (1956) AC 613, it was not possible to scientifically prove the
contribution made by the negligence so a departure of the but..for test was
used to achieve justice. It is likely that the strict application of the but..for test
will still be used in the majority of cases involving medical negligence.
It is not always clear what would have happened but for the defendants
negligence. This was the situation in Chester v Afshar (above). The
defendants argued that causation could only be proved if the claimant could
show that, had she been warned of the risk, she would never have
consented to the operation. As it was not possible to say what the advice
would have been or how she would have responded to it, the defendants
argued that causation could not be proved. The House of Lords disagreed.
The House of Lords accepted that it was very difficult to prove causation on
conventional principles, and said that this was a case where legal policy
required a modification to the normal approach to causation. To find
otherwise, in the view of their Lordships, would render meaningless the duty
of care a surgeon owes to his patient to warn of any risks associated with an
operation. On policy grounds therefore, the test of causation was satisfied
and the claimant won her case.
The courts took a similarly flexible approach in Wright (A Child) v
Cambridge medical Group (A Partnership) [2011] EWCA Civ 669. The
defendant, a GP, negligently failed to refer a child claimant with a bacterial
infection to hospital until two days later. It took a further three days in
hospital before the claimant was correctly diagnosed, by which time her hip
became infected resulting in a permanent disability. The defendant argued
that his negligence was not the factual cause of the claimants loss as even
if she had been admitted to hospital on time there would still have been a
three day delay in the correct treatment being given. The claimant would
still, therefore, have suffered the same disability. The Court of Appeal held
that where a doctor had negligently failed to refer a patient to hospital and,
as a consequence, she had lost the opportunity to be treated correctly, the
doctor could not escape liability by establishing that the hospital would have
negligently failed to treat the patient appropriately, even if promptly referred.
The Court of Appeal in this case also confirmed their previous decision in

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Gregg v Scott [2002] EWCA Civ 1471 on recovery for loss of chance. There
is no recovery in medical negligence cases for loss of less than even chance
of a better recovery.
Refer to Chapter 7 for more details on Causation.

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