Medical malpractice Cases

Samule v Davies (contract) Teeth

dentist made tailored dentures implying they would fit P’s gums, they didn’t therefore there was a breach of contract.

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Eyre v Measday (contract) Sterilisation

fell pregnant after sterilisation, the doctors words on the irreversibility of the procedure implied impossibility of this. Failed as doctors rarely say there will be an exact outcome.

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Thake v Maurice (contract) Vasectomy

told it was final and irreversible. 4 years later wife becomes pregnant and he sues saying there was a breach of the warranty of the vasectomy, he failed, medicine is not exact, a doctor cannot guarantee results unless he says so in clear terms.

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Barnett v Chelsea & Kensington Hospital Management Committee (casualty departments and the duty of care to strangers/patients)

turned away for A&E and sent to his GP, felt worse went back to A&E and he shortly died after, he had arsenic poisoning. There is a duty of care as soon as you open up the doors at A&E.

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Kent v London Ambulance Service [2000] (ambulance service and the duty of care to strangers/patients)

The ambulance took 40 minutes to arrive despite the fact her husband had rung twice in that period. On route she suffered a respiratory arrest causing brain damage and a miscarriage. CofA held they owed a duty of care.

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Wilsher v Essex Health Authority [1987] (Do health authority’s owe a duty also?)

Premature baby given far too much oxygen by a junior doctor. The baby was left blind in one eye and partially blind in the other. Duty of care breached, claim failed on causation.

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Bull v Devon AHA [1993] (Do health authority’s owe a duty also?)

Went into labour, first twin delivered on emergency but it took over an hour to find a doctor to deliver the second child. The child was starved of oxygen and had brain damage. Held liable for the lack of staff as a management issue.

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Clunis v Camden and Islington Health Authority [1998] Circumstances where a patient sues a Health Authority for consequences of his own wrong doing:

Discharged from mental asylum and repeatable failed to turn up to outpatient appointment. He killed a man and sued the health authority to say they shouldn’t have released him. Claim was struck out because of P’s own criminally wrongdoing.

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McFarlane v Tayside Health Board [1999] – (can a duty ever be owed to a non-patient: Wrongful pregnancy)

had child after failed sterilisation, couple claimed for damages of raising this unwanted child. Rejected in HL cannot claim for the raising of a health child, they are a blessing, the cost of which cannot be quantified.

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Parkinson v St. James and Seacroft University Hospital NHS Trust [2001] – (can a duty ever be owed to a non-patient: Wrongful pregnancy)

if you have a child with a disability, that difference you can claim back. Damages for the pain from labour can also be given.

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Rees v Darlington Memorial Hospital NHS Trust [2003] - (can a duty ever be owed to a non-patient: Wrongful pregnancy)

Blind single mum wanted a sterilisation as she could not look after more children. This sterilisation failed. The policy in McFarlane applied. Nominal damages for labour.

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JD v East Berkshire Community Health NHS Trust [2005] (child abuse examination; duty owed to the parents? – can a duty ever be owed to a non-patient? Failure to prevent causing harm to third parties.

Diagnosis of child abuse. A duty of care is owed to the child but not to the parents.

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West Bromwich Albion Football Club Ltd v El-Safty [2006] (consultant negligently treated player; did he owe the player’s club a duty of care?)

Injured footballed was on a long term contract. This consultant surgeon said he needed reconstruction surgery when really he could have suggested conservative treatment. Footballer never recovered and had to retire early.

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Pittman – Exception to the rule that third parties are not owed a duty of care – Disclosure of an infectious disease

Doctor had a duty to inform P he was contaminated with HIV+ through a blood transfusion 3 years ago, his wife who also contracted should have been informed.

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Urbanski – exception to the rule that third parties are not owed a duty of care – rescuers

Surgeon negligently removed kidney and so father donated his and sued for his loss. He succeeded in this action – he had acted reasonably in being a rescuer.

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Burton – exception to the rule that third parties are not owed a duty of care – ante-natal harm

Mothers are immune to claims brought on by a child and a pregnancy test was not given to the mum, the child was born with a disability.

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Alcock – exception to the rule that third parties are not owed a duty of care – psychiatric injury suffered by a third party

Hillsborough on TV, need to prove four things – you’re close to the victim, you witness the event, there is proximity to the events and its aftermath and your psychiatric injury is caused by a shocking event.

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Sion exception to the rule that third parties are not owed a duty of care – psychiatric injury suffered by a third party

Watching his son slowly deteriorate for two weeks and then died was not held to be a ‘shocking event’.

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Allin – can claim for psychiatric harm where information is negligently disclosed to C.

Mother wrongly told her newborn had died.

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Bolam – breach of duty – early law test for negligence

It is a question of whether the doctor had met the standard of care of another reasonable doctor. A defendant who acts in accordance with a practice accepted as proper by a responsible body of professional in the relevant field is not negligent.

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Sidaway – breach of duty – not for the judge to decide

The standard of care was held to be a matter of medical judgement. The law only imposes the duty of care.

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Gold – breach of duty – what does reasonable mean?

It was common practice not to warn of this specific risk therefore the doctor was not acting negligent.

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Hucks – breach of duty – what does reasonable mean?

The practice of what the doctor had done was glaringly irresponsible.

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Bolitho – breach of duty – new legal position for the common professional practice

Standard of the reasonably competent person, has D acted in accordance with a practice accepted as proper by a responsible body of professional in the relevant field and can the responsible body of professionals withstand logical analysis?

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Defreitas – breach of duty – how big is a body of professionals?

It is not a numbers game, a body of 11 doctors was held could represent a body of medical opinion.

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Clarke – breach of duty – moving away from generally accepted precaution

Failure to take a generally recognised precaution followed by damage which that precautions is designed to prevent.

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Zarb – breach of duty – complying with guidelines

Complaining with guidelines therefore it is difficult to claim that they were negligent.

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Crawford – breach of duty – keeping up to date with practice

Failure to read an article in the Lancet 6 months prior would not be expected.

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Gascoine - breach of duty – keeping up to date with practice

Doctors should keep abreast of mainstream treatment and diagnosis.

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Whitehouse – breach of duty – errors of judgement

Child birth by forceps, child suffered brain damage, this was not negligent merely an error of judgement.

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Roe – breach of duty – unforeseeable harm

At the time the risk was unforeseeable and therefore no duty has been breached.

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Wilsher – breach of duty – emergencies

In an emergency it might be difficult for doctors to provide the same standard of care might be normally be expected.

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Maynard – breach of duty – specialist

A doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality.

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Wilsher – breach of duty – inexperience

A junior doctor is still expected to be a competent doctor. Can satisfy the standard of care by seeking the assistance of his superiors to check his work, even though he may himself have made a mistake.

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Taaffe – breach of duty – other health care professions

Ambulance service should be judged by reference to what is reasonable in their particular circumstances. They were under a duty.

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Dwyer – breach of duty – proof of breach

The standard of the balance of probability under civil litigation and beyond reasonable doubt under criminal litigation.

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Hucks – breach of duty – proof of breach

Not liabe for an error of judgement, he is only liable if he fealls below the standard of a reasonable competent practitioner in his field – so much so that his conduct may fairly be held to be

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X (minors) v Bedfordshire Council – breach of duty – direct liability

The duty arises, regardless of whether a separate duty owed by the employee to the defendant.

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Barnett – castration – nothing they could have done

Sent away from A&E but even if he was seen too there was nothing they could have done.

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McWilliams – causation – C argued that he would have acted in a way which would have avoided the damage

He would not have worn a seatbelt even if one was offered because of the type of person he is. The chain of causation was broken.

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Wright – causation – outcome depends on hypothetical conduct of a third party

Cannot argue that a third party would have been negligent, you are liable for your own breach. Must prove on a balance that D caused the damage which is not easy to put as a statistic.

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Bonningtons – causation -material contribution to the damage

Two types of dust one legal one illegal causing illness. Impossible to determine which was the cause. Materially linked therefore causal link established.

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McGhee – causation – material contribution to the risk

No washing facility, skin condition due to exposure to brick dust couldn’t prove than no washing facility was the cause but it had materially contributed to the risk therefore a like was established.

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Wilsher – causation – material contribution to the risk

The action was one of 5 reasons for the injury. Failure to take prevention measures out of 1 of the 5 causes is not evidence as to what caused the injury.

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Hotson – causation – loss of chance

Negligent delay in treatment caused damage to hip. Chance of paralysis before negligence was 75% which ‘doomed’ the patient so there was no claim.

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Webb – causation – intervening acts

The original tort still had causative force, foreseeable that medical intervention would occur.

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Robinson – causation – remoteness of damages

A wrongdoer had to take his victim as he found him. Man fell on ladder and needed tentnus had a reaction to it. Liable despite the possible negligence in how jab was administered.

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Pidgeon – defences

contributory negligence

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clumis - defences

illegality

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Medical malpractice Cases

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