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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.
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?
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.
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.
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:
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:
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
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.
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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.
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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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