Medical Malpractice:
Negligence:
- 3 ingredients to successful
o Dr must owe P a duty of care
o Dr must breach that duty
o Breach must cause P’s injury
- Doctor/patient = well established ‘duty situation’- no argument that there isn’t a duty of care.
o A duty of care is imposed upon the doctor once she has assumed responsibility for the patient's care.
e.g. if a doctor stops at a road site accident - any time they treat anyone.
Hospital may owe primary duty of care to provide adequate service:
- In addition to doctors owing duty- hospital required to run an adequate service- court can find hospital negligent if it fails
to do this. However, courts are reluctant to interfere with policy decisions about the allocation of limited resources.
- Bull v Devon AHA [1993] 4 Med. LR 117 (CA)
o Facts: woman was giving birth to twins in Exeter. Significant delay in calling out a specialist doctor. CA stated
that this was a fairly ordinary scenario [giving birth] so need a situation that is safe for that scenario. Should’ve
been prepared.
o Dillon LJ:
The Exeter City Hospital provides a maternity service for expectant mothers, and any hospital which
provides such a service ought to be able to cope with the not particularly out of the way case of a
healthy young mother in somewhat premature labour with twins.
- Darnley v Croydon Health Services NHS Trust [2018] UKSC 50
o Duty of the hospital
o UKSC case
o Facts:
Personal reception had given misleading information about waiting times to someone who had come in.
There was a triage in place- someone with bad injury would be seen earlier. Then the person went
home [didn’t want to wait] and they got sicker. CA held that waiting time = a courtesy, but the UKSC
said it wasn’t- it was ordinary care and there was a duty.
o Lord Lloyd-Jones
While it is not the function of reception staff to give wider advice or information in general to patients,
it is the duty of the NHS Trust to take care not to provide misinformation to patients and that duty is
not avoided by the misinformation having been provided by reception staff as opposed to medical
staff…
A receptionist in an A & E department cannot, of course, be expected to give medical advice or
information but he or she can be expected to take reasonable care not to provide misleading advice as
to the availability of medical assistance.
It is not unreasonable to require that patients in the position of the appellant should be provided on
arrival, whether orally by a receptionist, by leaflet or prominent notice, with accurate information that
they would normally be seen by a triage nurse within 30 minutes.
Could healthcare workers ever owe non-patients a duty of care?
- Wrongful conception
o Carrying out sterilisation operation on a man- but failing. He wouldn’t get pregnant, the partner would. So
compensation wouldn’t be with him, but with her.
o The third party has to be foreseeable.
- Mcfarlane v Tayside Health Board:
o The male patient was married and his wife was in a sufficiently proximate relationship w/ her husband’s
doctors.
- Goodwill v BPAS [1996] 1 WLR 1397
o Facts:
Woman who got pregnant wasn’t known to the doctor- was a future sexual partner. Not in a special
relationship with her to provide a duty of care. They hadn’t voluntarily assumed responsibility to her-
she wasn’t known to them or to him [later met her]
o Peter Gibson LJ
The defendants were not in a sufficient or any special relationship with the plaintiff such as gives rise
to a duty of care. I cannot see that it can properly be said of the defendants that they voluntarily
assumed responsibility to the plaintiff when giving advice to Mr MacKinlay.
At that time they had no knowledge of her, she was not an existing sexual partner of Mr MacKinlay but
was merely, like any other woman in the world, a potential future sexual partner of his, that is to say a
member of an indeterminately large class of females who might have sexual relations with Mr
MacKinlay during his lifetime.
- Psychiatric injury:
o Some important limiting principles
o Alcock v Chief Constable of South Yorkshire & White v Chief Constable of South Yorkshire
Have to be within the immediate aftermath and have to experience with unaided senses and has to be
sudden assault. Difficult to fit within the principles
Negligence:
- 3 ingredients to successful
o Dr must owe P a duty of care
o Dr must breach that duty
o Breach must cause P’s injury
- Doctor/patient = well established ‘duty situation’- no argument that there isn’t a duty of care.
o A duty of care is imposed upon the doctor once she has assumed responsibility for the patient's care.
e.g. if a doctor stops at a road site accident - any time they treat anyone.
Hospital may owe primary duty of care to provide adequate service:
- In addition to doctors owing duty- hospital required to run an adequate service- court can find hospital negligent if it fails
to do this. However, courts are reluctant to interfere with policy decisions about the allocation of limited resources.
- Bull v Devon AHA [1993] 4 Med. LR 117 (CA)
o Facts: woman was giving birth to twins in Exeter. Significant delay in calling out a specialist doctor. CA stated
that this was a fairly ordinary scenario [giving birth] so need a situation that is safe for that scenario. Should’ve
been prepared.
o Dillon LJ:
The Exeter City Hospital provides a maternity service for expectant mothers, and any hospital which
provides such a service ought to be able to cope with the not particularly out of the way case of a
healthy young mother in somewhat premature labour with twins.
- Darnley v Croydon Health Services NHS Trust [2018] UKSC 50
o Duty of the hospital
o UKSC case
o Facts:
Personal reception had given misleading information about waiting times to someone who had come in.
There was a triage in place- someone with bad injury would be seen earlier. Then the person went
home [didn’t want to wait] and they got sicker. CA held that waiting time = a courtesy, but the UKSC
said it wasn’t- it was ordinary care and there was a duty.
o Lord Lloyd-Jones
While it is not the function of reception staff to give wider advice or information in general to patients,
it is the duty of the NHS Trust to take care not to provide misinformation to patients and that duty is
not avoided by the misinformation having been provided by reception staff as opposed to medical
staff…
A receptionist in an A & E department cannot, of course, be expected to give medical advice or
information but he or she can be expected to take reasonable care not to provide misleading advice as
to the availability of medical assistance.
It is not unreasonable to require that patients in the position of the appellant should be provided on
arrival, whether orally by a receptionist, by leaflet or prominent notice, with accurate information that
they would normally be seen by a triage nurse within 30 minutes.
Could healthcare workers ever owe non-patients a duty of care?
- Wrongful conception
o Carrying out sterilisation operation on a man- but failing. He wouldn’t get pregnant, the partner would. So
compensation wouldn’t be with him, but with her.
o The third party has to be foreseeable.
- Mcfarlane v Tayside Health Board:
o The male patient was married and his wife was in a sufficiently proximate relationship w/ her husband’s
doctors.
- Goodwill v BPAS [1996] 1 WLR 1397
o Facts:
Woman who got pregnant wasn’t known to the doctor- was a future sexual partner. Not in a special
relationship with her to provide a duty of care. They hadn’t voluntarily assumed responsibility to her-
she wasn’t known to them or to him [later met her]
o Peter Gibson LJ
The defendants were not in a sufficient or any special relationship with the plaintiff such as gives rise
to a duty of care. I cannot see that it can properly be said of the defendants that they voluntarily
assumed responsibility to the plaintiff when giving advice to Mr MacKinlay.
At that time they had no knowledge of her, she was not an existing sexual partner of Mr MacKinlay but
was merely, like any other woman in the world, a potential future sexual partner of his, that is to say a
member of an indeterminately large class of females who might have sexual relations with Mr
MacKinlay during his lifetime.
- Psychiatric injury:
o Some important limiting principles
o Alcock v Chief Constable of South Yorkshire & White v Chief Constable of South Yorkshire
Have to be within the immediate aftermath and have to experience with unaided senses and has to be
sudden assault. Difficult to fit within the principles
