Medical malpractice lecture
Negligence
Duty – There is a well-established duty of care situation
o A duty of care is imposed upon the doctor once she has assumed responsibility
for the patient's care.
o If a doctor is off duty and volunteers to help in a outside situation, they assume
responsibility.
Breach
Causation
Hospital may owe primary duty of care to provide adequate service:
Bull v Devon AHA [1993] 4 Med. LR 117 (CA) 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.
Garcia v St Mary's NHS Trust [2006] EWHC 2314 (QB): I take the view that the whole
system obviously has to be framed to deal with that which is reasonably foreseeable. I
do not take the view that the whole system has to be framed to deal with the possibility
that a rare occurrence will happen, and by rare the figure mentioned is one in a
thousand.
Darnley v Croydon Health Services NHS [2018]
Someone with a head injury was told the waiting time for a doctor to see them was 4-5
hours but did not tell them that a triage nurse would see him within 30 minutes who
would assess the urgency.
o He went home after 90 minutes as he felt worse and did not want to wait.
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?
(a) Wrongful conception
Goodwill v BPAS [1996] 1 WLR 1397 – 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.
, o 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.
o The harm to defendant was not reasonably foreseeable? A wife of a vasectomy
would be within the contemplation of the doctor but not any other women
(b) Psychiatric injury
North Glamorgan NHS trust v Walters [2002] EWCA Civ 1792, [2003] PIQR 232: Case of
a mother who watched her baby die because of medical negligence.
o Ward LJ: She was there witnessing the effect of that damage to her child. The
necessary proximity in space and time is satisfied.
o The assault on her nervous system had begun and she reeled under successive
blows as each was delivered. It comes as no surprise to me that when her new
baby was ill she should suffer the flashbacks of 36 horrendous hours which
wreaked havoc upon her mind.
Liverpool Women’s Hospital NHS Foundation Trust v Ronanyne [2015] EWCA Civ 588: A
man who saw his wife in hospital and was distressed. There was a special relationship
but it was not a shock to his nervous system, he should have expected to see her unwell.
o Tomlinson LJ: I can readily accept that the appearance of Mrs Ronayne on this
occasion must have been both alarming and distressing to the Claimant, but it
was not in context exceptional and it was not I think horrifying in the sense in
which that word has been used in the authorities.
o Certainly, however it did not lead to a sudden violent agitation of the mind,
because the Claimant was prepared to witness a person in a desperate condition
and was moreover already extremely angry.
Usually it is difficult to satisfy this test because when you are going to visit someone in
hospital, you are expected to see patients in fragile conditions where they are unwell.
(c) Failure to prevent the patient from causing harm
Palmer v Tees Health Authority [1999] Lloyd's Rep Med 351 CA – A mentally unwell
patient killed a little girl but it was not reasonably unforeseeable that the particular
individual would be targeted so measures couldn’t be taken to protect her.
o Stuart-Smith LJ: An additional reason why in my judgment in this case it is at
least necessary for the victim to be identifiable (though as I have indicated it may
not be sufficient) to establish proximity, is that it seems to me that the most
effective way of providing protection would be to give warning to the victim, his
or her parents or social services so that some protective measure can be made…
o the most effective precaution cannot be taken because the defendant does not
know who to warn.
Breach of duty
Bolam v Friern Hospital Management Committee [1957] WLR 582 [1957] 2 All ER 118
o McNair J: ‘A doctor is not guilty of negligence if he has acted in accordance with
a practice accepted as proper by a responsible body of medical men skilled in
Negligence
Duty – There is a well-established duty of care situation
o A duty of care is imposed upon the doctor once she has assumed responsibility
for the patient's care.
o If a doctor is off duty and volunteers to help in a outside situation, they assume
responsibility.
Breach
Causation
Hospital may owe primary duty of care to provide adequate service:
Bull v Devon AHA [1993] 4 Med. LR 117 (CA) 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.
Garcia v St Mary's NHS Trust [2006] EWHC 2314 (QB): I take the view that the whole
system obviously has to be framed to deal with that which is reasonably foreseeable. I
do not take the view that the whole system has to be framed to deal with the possibility
that a rare occurrence will happen, and by rare the figure mentioned is one in a
thousand.
Darnley v Croydon Health Services NHS [2018]
Someone with a head injury was told the waiting time for a doctor to see them was 4-5
hours but did not tell them that a triage nurse would see him within 30 minutes who
would assess the urgency.
o He went home after 90 minutes as he felt worse and did not want to wait.
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?
(a) Wrongful conception
Goodwill v BPAS [1996] 1 WLR 1397 – 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.
, o 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.
o The harm to defendant was not reasonably foreseeable? A wife of a vasectomy
would be within the contemplation of the doctor but not any other women
(b) Psychiatric injury
North Glamorgan NHS trust v Walters [2002] EWCA Civ 1792, [2003] PIQR 232: Case of
a mother who watched her baby die because of medical negligence.
o Ward LJ: She was there witnessing the effect of that damage to her child. The
necessary proximity in space and time is satisfied.
o The assault on her nervous system had begun and she reeled under successive
blows as each was delivered. It comes as no surprise to me that when her new
baby was ill she should suffer the flashbacks of 36 horrendous hours which
wreaked havoc upon her mind.
Liverpool Women’s Hospital NHS Foundation Trust v Ronanyne [2015] EWCA Civ 588: A
man who saw his wife in hospital and was distressed. There was a special relationship
but it was not a shock to his nervous system, he should have expected to see her unwell.
o Tomlinson LJ: I can readily accept that the appearance of Mrs Ronayne on this
occasion must have been both alarming and distressing to the Claimant, but it
was not in context exceptional and it was not I think horrifying in the sense in
which that word has been used in the authorities.
o Certainly, however it did not lead to a sudden violent agitation of the mind,
because the Claimant was prepared to witness a person in a desperate condition
and was moreover already extremely angry.
Usually it is difficult to satisfy this test because when you are going to visit someone in
hospital, you are expected to see patients in fragile conditions where they are unwell.
(c) Failure to prevent the patient from causing harm
Palmer v Tees Health Authority [1999] Lloyd's Rep Med 351 CA – A mentally unwell
patient killed a little girl but it was not reasonably unforeseeable that the particular
individual would be targeted so measures couldn’t be taken to protect her.
o Stuart-Smith LJ: An additional reason why in my judgment in this case it is at
least necessary for the victim to be identifiable (though as I have indicated it may
not be sufficient) to establish proximity, is that it seems to me that the most
effective way of providing protection would be to give warning to the victim, his
or her parents or social services so that some protective measure can be made…
o the most effective precaution cannot be taken because the defendant does not
know who to warn.
Breach of duty
Bolam v Friern Hospital Management Committee [1957] WLR 582 [1957] 2 All ER 118
o McNair J: ‘A doctor is not guilty of negligence if he has acted in accordance with
a practice accepted as proper by a responsible body of medical men skilled in
