Medical breach


NHS facts

  • From 1980's to 2009 the UK's GDP spending on health care has doubled. £120 billion spent on NHS this year. 
  • Still have fewer physicians, and fewer hospital beds than any other European country. 
  • Life expectancy has increased and the country is aging 
  • 23 million went to A and E last year.
  • Technology and science has improved. 
  • Patients as consumers? 
  • NHS is a free service with easy access, which may increase over reliance. 
  • Medical neglience claims in 2014/15 amounted to £1.4billion (lawyers fees are significant)

Claims should not be judged with hindsight- professionals should be judged by what was considered reasonable at the time of the alleged negligence. 

Roe v MoJ- 1954- labourers went to hospital for a routine operation. Both of them became parapalegic. Their anesthetic was stored in chemicals but there were tiny cracks in the glass test tubes which meant the storage chemcials entered the anesthetic. The acid corroded their nerves. 

Denning had to decide if this had fallen below the standard of care. Contamination was unforeseeable. How can you guard against a risk like that? This was an accident, not negligence. 

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Roe v MoJ

'We must not look at the 1947 incident with 1954 spectacles.' 'Drs like the rest of us have to learn by experience and experience often teaches us the hard way.' - Lord Denning. 

He also had policy considerations. Dr's may be too scared to act in best interests of patients. It is fair, but unfortunate for these people. 

'These two men have suffered such terrible consequences that there is a natural feeling that they should be compenstated. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and Dr's for everything that happens to go wrong. Dr's would be led to think more of their own safety than the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and Dr's have to work. We must insist on due care for the patient at every point but we must not condemn as negligence, that which is only misadventure.' 

Breach of duty is the second hurdle a claimant must prove on the balance of probabilities. 

A professional will avoid liability if his or her conduct accords with one view of responsible medical opinion. 

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The main authority for breach is Bolam v Friern Hospital Management Committee 1957- Claimant was a voluntary patient suffering from depression. He had ECT- where the patient is either relaxed with drugs beforehand or is not. The claimant said that the Dr failed to warn of the risks of no relaxant and that the Dr should have given drugs and strapped him into the bed, despite the risk of harm without this being low. The man cracked his pelvis. Bolam lost. The advice given to the jury was that if a body of medical opinion allowed treatment that way, then there was no breach. 

This decision is still relevant for diagnosis, prognosis and treatment. 

Criticisms of Bolam- 

  • Even if only can find one Dr who would have done the same as you, if they are deemed to be responsible then you can escape liability. 
  • The medical profession is essentially self regulating (friends can stick up for each other etc)
  • There is judicial deference to medical opinion. They respect Dr's and place them in high regard. Judges often dont understand the complexity of medicine. 
  • If the Dr is responsible, then no need to question substantively what they said- Lord Scarman in Maynard. 
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Maynard v West Midlands RHA 1984- Said the Bolam rule still applies. Claimant goes to hospital showing signs of TB. 2 Dr's consider him having Hodgkins Lymphoma. They test him. Dr's dont wait for the TB test results to come back and they do a biopsy to see if he has cancer. This is an invasive procedure. They didnt warn him of risks, and even if everything goes well his voice may be damaged still. One side of his voice box is permanently damaged. He didnt have cancer. Said no choice and was not told of the risks. 

Claimant on first instance, but this is overruled. Says the claimants experts witness is better than the defendants. Judicial preference. The CoA and HoL reverse this. They applied Bolam and said that as long as the Dr has evidence from a responsible medical body, then there is no breach. 

'A judges preference for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence as a practitioner.' The judge cant just prefer one Dr's evidence over another. 

De Freitas v O'Brien 1995- only 4 Dr's agreed with the defendant out of 200. He still won and was able to avoid liability. 

Seems clear the judiciary will not challenge what a Dr says. 

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Hucks v Cole

Hucks v Cole 1968- reported in 1993 and referred to in Bolitho- Dr treated a pregnant patient who had bacterial infection on her fingers with a drug called T. If you're pregnant and have bacterial infection, you can contract a further fever which is really horrible. The Dr uses a cheaper antibiotic, even though the patient is near the end of her pregnancy and there is a risk (albiet small) of harm. The best treatment would have been P. The claimant got septicima and was very ill. The claimants Dr's said they would have given P. The defendants Dr's said they would have prescribed the cheaper T drug. Although these witnesses were distinguished and expert, the judge said they were not convincing when there is an obvious treatment which would have cured her completely. 

Sachs LJ- 'there was a lacuna in professional practice. The defendant knowingly took an easily avoidable risk which elementary teaching had instructed him to avoid. As, in the courts judgement, there was no proper basis for the practice of not giving P, it was not reasonable for the medical practitioner to expose his patients to this risk.' 

This was good judicial creativity. The judge said no reasonable Dr would have done this. This came after Bolam and was a breakthrough case. 

Bolitho v City and Hackney HA 1998- B, 2 years old, suffered from croop and was admitted to hospital. He had treatment and went home. Came back with breathing difficulties. Nurses called for a Dr to come immediately but she didnt respond to the pager. Nurses stabalise him. 

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His condition deterioates again and the nurses page her again. She doesn't attend again. Paged her at 2pm and at half 2 the baby has a heart attack and dies. At trial there were 8 different trial expert witnesses, there were 3 for the plaintiff. 

The Dr admits she was negligent in not attending to the pager call. The court finds no liability. She said if she had attended she wouldnt have intubated his airways anyway. This is a very invasive procedure for a small boy. Issue of causation. She said she would've used non invasive procedures. 

There was a move away from judicial deference towards Dr's. Judges said asking medical body was fair, but if the basis of the claims is not logical then they dont have to accept the evidence. 

Lord Browne Wilkinson- Why was it logical not to intubate the child? Intubation is 'a major undertaking- an invasive procedure with mortality and morbidity attached- it is an assault.' It involves anaesthising and ventilating the child. A young child does not tolerate a tube easily and unless sedated, tends to remove it. In those circumstances it cannot be suggested this was illogical for the Dr, a most distinguished expert, to favour running what, in their view, was a small risk of total respiratory collapse rather than to submit Patrick to the invasive procedure of intubation. 

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Children have different features to adults- they are very fragile. It is hard for a judge to decide whether a Dr's opinion is logical. 

What would be illogical? 

  • If the experts had not directed their minds to the question of comparative risks and benefits.
  • If experts reports were based on factual mistakes. 
  • If their evidence was not respectable due to being out of date
  • What would a lay person think?

The judge is final arbiter. However Lord Browne Wilkinson said 'should only make logic questioning in very rare cases.' 

There is a two pronged test from Bolitho-

  • 1) Did the Dr act in accordance with responsible medical opinion?
  • 2) If the answer is yes, is the opinion logical? 

Bolam is not used for causation, when Dr is saying could've/would've/should've. 

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Fallon v Wilson 2010- causation case. 14 year old suing for what happened to her when she was 27 weeks old. She now suffers with quadriplegic cerebral palsy, mental retardation, epilepsy, behavioural problems and blindness. Claimant was premature and weighed 1kg. She was in the ICU but went home. She visited Dr with her mum for her mums appointment. Whilst the baby was in the waiting room she showed signs of a lack of oxygen. She wasn't due to see a Dr that day. Mother asked to see GP immediately. GP advised mother to keep her warm and go home. GP is now retired as it is many years later. Baby took a turn for the worse, was admitted to hospital and had brain damage. This is a causation issue. 

With premature babies the bar is low. Dr had failed to act as a reasonably proficient Dr would. Had the baby gone to hospital straight away, she would have avoided most of her problems. 

This case shows the need for Dr's to keep very detailed notes, so they can come back to them when a trial occurs like this. 

Marriot v West Midlands RHA 1999- The claimant falls and hits his head and is unconcious for half an hour. Discharged from hospital after one night. He goes home but cant do anything for the next 8 days. Then goes back to Dr's and he does neurological tests on him. Dr said theres nothing wrong. 4 days later his condition worsened and is readmitted into hospital. 

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He has a blood clot in brain and had skull fractures. Left paralysed and has a speech disorder. He said hospital were negligent at first and GP negligent.

Defendants experts werent very persuasive. Given the catastrophic consequences, there was no reasonable medic who would act this way. It was not logical. This came within the Bolitho exception. He won. 

C v North Cumbria Hospital Trust 2014- the case was brought by the father of a child with cerebral palsy. The wife had two drugs administered to her to induce labour. The midwife didnt consult a Dr or seek a second opinion about the appropriateness of the second dose. This triggered a quick labour and the uterus ruptured. Baby was delivered by forceps. Mother had heart attack and died. Had the wife acted in accordance with the medical practice of midwives? The risk of rupture was very low. 

She had acted in accordance with the guidelines and there was no Bolitho issue. 

Although the standard of care expected in tort is objective, could this standard vary with junior doctors? In emergency situations (not just A+E)? Because resources are limited?

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Standard of care

Should the inexperience affect the standard of care expected of Dr's? 

Wilsher v Essex AHA 1987- for breach points read the CoA decision not the HoL- Concerns junior Dr's. Junior Dr wrongfully inserted catheter into the umbilical vein and put in too much oxygen. He had checked with his senior that he was doing it right and he said yes. The senior Dr then did exactly the same thing. Baby ended up nearly blind. 

Junior Dr was not negligent as he had checked with senior. The senior was negligent. Junior Dr's should be held to the same standards as a normal one. 

Glidewell J- 'a single standard of care can only be practicable by relating the reasonableness of the defendants conduct to the task which is undertaken, and what is objectively reasonable does not change with the experience of the defendant or the post he holds.' 

This case has been overruled but this rule still stands. 

This is in line with the rules on learner drivers- Nettleship v Weston. 

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Standard of care

Should the standard of care expected be the same in emergency situations? 

  • Ommissions and emergencies
  • Not talking about A+E emergencies. 
  • Cases to consider- Watt v Hertfordshire CC 1954 and Ward v London CC 1938
  • The social utility argument. 

General Medical Council guidelines say as a Dr you must offer help if an emergency occurs in a clinical setting. Just guidance- there is no positive duty to act. Policy probably stands in the way. 

Watt v Hertfordshire CC 1954- fireman injured when going to a call. A jack fell on him and his leg was crushed. He sues his employer. They defend by saying social utility issue which outweighs claimants claim. His claim failed. The standard of care might be slightly lower. 

If D has limited resources, is this relevant to the standard of care expected of D's employees? 

This comes up in Prison cases. 

Knight v Home Office 1990- The prison Dr's were not negligent when a prisoner committed 

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Standard of care

suicide. The prison Dr's were not negligent as the resources were limited. They said you cant expect the same degree of care in a prison. 

Brooks v Home Office 1999- C was in custody and was expecting twins in a high risk pregnancy. Regularly had ultra sounds. One scan showed an abnormal development. Prison Dr's were inexperienced and waited 5 days before seeking help. Baby died within 2 days of the scan. 

Court said the same standard of care should be expected. This should not be lowered just because the patient is in prison. However a 2 day delay before admitting a patient into hospital is acceptable and as the baby died within 2 days, the wait was reasonable. 

Maybe the courts could acknowledge the negligence but make nominal damages in some of these cases? 

Modern day issues- inadequate staffing, delays in responding to emergencies and failure to test. Direct primary duties to patients. May happen more and more with cuts. This is a slippery slope. 

Bull v Devon AHA 1993- due to have twins. Admitted to hospital. First twin was fine. Left unattended for 68 minutes whilst they tried to find a second Dr. Second twin had lack of 

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Standard of care

oxygen and had quadrepligia. Brings claim 17 years later. 

Court confirmed disabled victims of negligence can bring their claims whenever and not be time barred. Minimum standard of care should always be given regardless of finances. However shouldnt expect a registrar to be on duty at all times. But the delay was so substantial that this was an inadequate breakdown in the hospital system so imposed primary liability. 

Mustill in obiter- noted that courts might not be able to dodge forever the issue of liability for policy decisions concerning funding. 

More delays- 

Garcia v St Mary's NHS Trust 2006- needed heart bypass as at great risk of heart attacks. During the op he used a liga clip to seal off veins. Operation had thought to have gone well. He crashed and took 31 minutes for a Dr to attend the emergency. 2 allegations- 1) trust was VL for the fact that the clip became dislodged and Dr hadnt placed it correctly. 2) said trust failed to take reasonable care of him to organise post op surgical staff to attend quickly if bleeding occurs. He bled profusely and ended up with brain damage. 

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Standard of care

Fails on balance of probabilities for the clip. Might have dislodged from his movement. No negligence by the trust in the delay. Need reasonable foreseeability. Such a rare occurence, even if specialist was on site, they might have been with another patient. 

This is a contrast to Bull. If they had allowed the claim it may have set unrealistic standards. 

Mullholland v Medway 2015- goes to A + E in Jan 2010- feels like hes suffering from a stroke. Blurred vision and arm weakness. Seen by the stroke team and they dont think its a stroke, they think its because of anxiety and weed use. Dr reads records and he thinks his symptoms are long term drug abuse. Discharged. He comes back later, has a scan and it reveals an aggressive brain tumour. If he had been screened earlier they wouldnt have operated until May. 

Court said that long term prognosis had not been changed through the delay. In pressurised area of A+E and don't have experts or research, the fact the Dr relied on GP and stroke Dr's was reasonable. He was part of a chain. 

The care has to reflect reality. Necessary to function. No liability for failure to test. The courts say the standards shouldn't be lowered but they are clearly not as high in A+E/emergencies. 

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  • Difficulty in proving breach in the imperfect world of the NHS. 
  • Judging reasonableness in context. 
  • Alternative challenges- judicial review- ultra vires and reasonableness. 
  • There may be human rights challenges- under A2, 3 and 8 violations. 

R (on the application of Condliff) v North Staffordshire PCT 2011- diabetic with a needle phobia. BMI of 40- very high- average is 18-25. He had been refused a gastric band- needed to be over 50BMI. Wanted individual funding request. Allowed if exceptional circumstances. Social factors cannot be taken into account when they decide. He had many social problems. Claims A8 has been infringed with A2+3 also. 

Policy of allocating scarce resources on the basis of assessment of clinical needs was non discrimination and fair. A8 cant be used to give rise to a positive duty to take into account wider implications than just medical considerations. 

R v North West Lancashire HA ex p A 2000- the basic public law position was summarised by Buxton in this case. 

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Resource issues

  • 1) a health authority can legitimately, indeed must, make choices between the various claims on its budget, when as will usually be the case, it does not have sufficient funds to meet all of those claims. 
  • 2) in making those decisions, the authority can legitimately take into account a wide range of considerations, including the proven success or otherwise of the proposed treatment, the seriousness of the condition that the treatment is intended to relieve, and the cost of that treatment. 
  • 3) the court cannot substitute its decision for that of the authority, either in respect of the medical judgements that the authority makes or in respect of its view of priorities. 

Judges dont want to get involved in policy considerations in each hospital. Not much claimant incentive for judicial review. Judges dont like political issues either. 

Charles Foster- 'Who's in charge?' 2015- 'In making decisions about healthcare resource allocation, NHS bodies will take into account not only data justified by the objective utilitarian tools of quality adjusted life years per pound, but also views which can only bear the name of ethical or moral. The courts reluctance to adjudicate must partly be a distaste for getting embroiled in this ethical/moral battleground- as well as a concern about opening the 

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Res Ipsa Loquitor

floodgates to litigation by disaffected patients so clogging the courts.' There will always be dissatisfied patients. 

Difficulties proving breach- Res Ipsa Loquitor- 'the thing speaks for itself'. 

To plead this maxim: 

  • 1) the occurence must not be one that will not normally happen without negligence
  • 2) the defendant must have control of the thing which causes harm
  • 3) the cause of the occurence must not be known to the claimant. 

If all these are present, an inference can be drawn that there must have been a breach and therefore there is no need to call an expert witness. 

If everything is going well, that thing should not be there. Prima facie case. Takes burden off you. Defence then have to say it wasnt them. 

Mahon v Osborne 1939- man goes into hospital and needs emergency surgery. Successful operation. Surgeon leaves a cotton swab inside the patient. Man is in huge pain for a month. 

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Find the decomposed swab and he dies the next day. The thing speaks for itself. The swab spoke for itself. It shouldnt have been there. Very helpful to claimants. 

Cassidy v Ministry of Health 1951- 'I went to the hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if care had been used. Explain if you can.'- Denning. He said that it can only be used when really obvious eg chopping off wrong leg. Not used that often in medicine. 

Ratcliffe v Plymouth HA 1998- wasnt allowed to use the maxim. Court want to put a limit on it. 

Lillywhite v UCL NHS 2005- severly brain damaged baby. Consultant made up that it was fine. She was allowed to use the maxim. 


  • fears of encouraging defensive medical practice
  • Reluctance to encourage a culture of litigation
  • striking the right balance and fears that imbalance may deter young people from entering the profession- Denning in Whitehouse. 
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  • A+ E especially. Everyone claiming would overdo the resources. 

Jose Miola- 'Making decisions about decision making' 2015- 'thus while the reasons for the change in judicial attitude (patient centred now) not only explains the increased intervention, but justify it as a reasonable response by judges to scandals in health care, the law must take care 'not to throw the baby out with the bath water.' Judges must recognise that they are limiting the space for medical conscience to thrive, and fill it in some way. Of concern is the fact that the limitation on the conscience of doctors seems to have been replaced by a new consumerist mantra on behalf of patients. If this is to be the case, then the law will encourage a landscape for medical practice that is amoral and solely based on patient choice. Despite being broadly supportive of the shift in judicial attitude to date, I am not convinced this would be a positive development.' 

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