Analyzing Negligence and Tort Law Principles in Adrianas Case

Introduction

The problem essay discusses the principles of negligence and tort law and applies these principles to the case of Adriana’s death and the medical harm to her baby, Charlotte. The essay will identify the legal issues involved in the problem scenario, discuss the law related to negligence, apply the law to the problem scenario, and conclude with the possible responses to the legal issues raised as per the authorities and law discussed in the essay.

Issues

The following issues are involved in this problem scenario:

Does Peter have an action in negligence against the GP

Does Peter have an action in negligence against Dr Williams

Does Peter have an action in negligence against Dr Ferris

Does Peter have an action in negligence against the Junior doctor

Does Peter have an action in negligence against the ambulance driver

Law

The law related to negligence is the principal area of law that is involved in this problem scenario. Negligence is defined as the breach of duty to take care, which is explained as the failure of a person to take reasonable care. Negligence occurs when a person fails to avoid harm to the claimant, where such harm was reasonably foreseeable. This section discusses the law of negligence in detail, with particular emphasis on medical negligence cases.

In order to establish the tort of negligence, the claimant is under the burden of proof to establish the defendant’s negligence; the claimant must establish this on the balance of probabilities. This means that the claimant should be able to establish in the court that the most likely cause of harm is the act or omission of the defendant based on all the evidence presented before the court. Authority contained in Bolitho provides that causation must be evaluated on the balance of probabilities. The claimant has to establish the following for the purpose of proving negligence of the defendant: duty of care, breach of duty, and harm.

Duty of care is a duty laid down by the law. Duty of care is established when there is reasonable foreseeability of harm, and existence of a sufficiently close relationship between the claimant and defendant. There is a standard of care that is laid down in the law of negligence, and if the defendant breaches that standard of care, then the duty of care is said to be breached. The courts have evolved an objective standard of care in the authorities laid down by them; this is as per the reasonable person test. This test provides that the standard of care is that which will be followed by the reasonable person in similar circumstances.

In a case involving duty of care owed by doctor to patients, reasonable foreseeability of harm and sufficiently close relationship between doctor and patient is established if the harm is because of misdiagnosis or lack of medical care. A sufficiently close relationship between the claimant and the defendant is related to the rule of proximity; in medical negligence

cases, proximity between doctor and patient can be established on the grounds of physical, circumstantial, and causal proximity, as well as cases where the doctor assumes the responsibility of the patient.

For reasonable person test in medical negligence cases, the actions of the defendant are said to breach standard of care when these actions are contrary to the actions of a person from the medical profession with similar skills and knowledge. In Montgomery, omission to give medical advice was held to be a breach of duty to take care. Failure of the doctor to advice the patients of the risks involved in some medical treatment can also be negligence on the part of the doctor as this is a breach of standard of care. In medical negligence cases, if there is a failure to diagnose or misdiagnosis, courts may consider if the relevant tests that are to be given to the patient were given because the failure to prescribe the relevant and standard tests may also be construed as breach of standard of care.

Causation is an important aspect of establishing negligence of the defendant; it is proved on the balance of probabilities. In Bolam, misdiagnosis which is not expected at the level of the practice of the medical professional was held to be a breach of duty to take care on the balance of probabilities. In Bolitho, it was held that the doctor can be said to have caused harm to the claimant and be liable for negligence if his treatment left the patient worse off than before. In Hotson, the doctor was held not liable for negligence on the balance of probabilities despite the failure to diagnose and treat the claimant because such treatment may also not have prevented the complications to the patient.

The authorities discussed above indicate that in medical negligence cases, the claimant has to establish the proximity of relationship with the defendant and the breach of standard of care on the balance of probabilities. As the claimant has to establish negligence on the balance of probabilities, factual data can be used to prove that the harm is caused by the defendant. However, in some cases, where multiple causes are made out on the basis of factual data, it may be challenging to identify the one cause or defendant that is to be held liable for the harm. The courts do apply the but for test to identify the cause and defendant on the ground that but for the conduct actions of this defendant, the harm would not be caused. The burden of proof is on the claimant to establish the liability of the defendant in such cases.

At times, factual data may not be able to point out the one cause or defendant to whom the harm may be attributed. In such cases, material contribution to harm may be used to identify the causes that led to the material contribution of harm. In Fairchild, the material

contribution test has been applied by the court to establish liability of all of the defendants on the ground that they all materially contributed to the harm caused to the claimant.

Defendants can take the defence of novus actus interveniens where causation is interrupted by an intervening act. However, even where an intervening act of another person may breack the chain of causation, the liablity may still be divided between the defendants on the basis of material contribution.

Application of the law

The duty of care owed by the GP

The GP failed to inform Adriana that she had developed pre-eclampsia; this is despite the regular visits by Adriana and blood pressure checks given to her by the GP. The GP was aware that Adriana’s blood pressure was a little high, but he failed to correctly diagnose pre-eclampsia. The result of this is that Adriana continued to work as a journalist, which the GP was aware of and he also was aware of the high pressure nature of the work. Therefore, it is clearly made out that the GP failed to inform Adriana about her medical condition. This is a breach of standard of care as laid down in authorities of medical negligence, which clearly provide that failure to diagnose or misdiagnose, is a breach of standard of care.

The duty of care owed by Dr Williams

Dr Williams was aware that Adriana had pre-eclampsia. Nevertheless, he advised her continue working, without informing her of the risks involved to her and her baby. These risks included possible harm to kidney and liver functions, blood clotting, pulmonary oedema, seizures and potential maternal and infant death. The authorities discussed above clearly make out that failure of the doctor to advice the patients of the risks involved in some medical treatment is negligence on the part of the doctor as this is a breach of standard of care. On this ground, there is breach of standard of care.

The duty of care owed by Dr Ferris

Dr Ferris caused a delay in taking the blood and urine tests for Adriana when she was under his care. Dr Ferris also failed to advice Adriana on the risks of delaying delivery after the results were made available. Despite being aware of Adriana’s condition of pre-eclampsia, Dr Ferris failed to inform her about the consequences of delay in delivery. As per the authorities discussed above, Dr Ferris can be held liable for negligence due to breach of standard of care expected from a doctor of his experience and expertise.

The duty of care owed by the Junior doctor

Baby Charlotte was delivered by a junior doctor. He was not a specialist obstetrician. Moreover, he had been working for 46 hours without rest when he delivered the baby. The baby suffered damages to her liver and brain. Adriana suffered a haemorrhage. The junior doctor would not have the same expertise as the more senior doctor and the actions of the junior doctor cannot be subjected to the reasonable person comparator of a more senior and experienced doctor. Therefore, the liability of the junior doctor is not established.

Another ground for negligence against the junior doctor is related to the failure of removal of the entire placenta; this led to the haemorrhage to Adriana. The authorities discussed above clearly indicate that failure to take reasonable care, that is, care expected from a prudent person in a similar situation will be negligence. On the basis of the reasonable person test, the junior doctor may not be liable because he did not have the expertise to know about the

placenta removal in entirety. The medical examiner had advised that the placenta had not been removed during the delivery and there was evidence of a cut to the uterus. It can be argued that on the balance of probabilities, the junior doctor caused the harm to Adriana.

The duty of care owed by the ambulance driver

The driver of the vehicle that collided with the ambulance had been drinking and the collision led to further injury, and delay by an hour. The ambulance company can be made liable for the driver’s negligence in driving drunk.

Peter’s response to defence of intervening acts by the doctors

It may be argued by the doctors that the accident caused by the drunk driver is this intervening factor which breaks the chain of causation. It may be counter argued by Peter that the intervening factor does not affect the material contribution to the harm. Peter can argue that all of the doctors caused material harm due to their negligent acts and omissions. This can be done on the basis of negligence of all the doctors involved who failed to inform her of the medical condition. As the authorities discussed above indicate, material contribution to harm may be used to identify all the causes that lead to the material contribution of harm. In Fairchild, all of the defendants were held liable on the ground that they all materially contributed to the harm caused to the claimant. Peter may argue on these grounds.

Conclusion

Medical negligence of all the doctors in this case can be established on the basis of material contribution test as per which all of them can be held liable for materially contributing to harm done to Adriana and her baby. Intervening factor of ambulance collision may be disregarded on the basis of material contribution. The ambulance company can also be made liable for the negligence of its driver who caused the accident because he was driving drunk.

Dig deeper into Analyzing Legal Contexts with our selection of articles.

List of cases

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

Bolitho v City and Hackney Health Authority [1998] AC 232.

Chester v Afshar [2004] UKHL 41

Caparo plc v Dickman [1990] AC 605.

Chester v Afshar [2004] UKHL 41

Donohue v Stevenson [1932] UKHL 100.

Dr Sido John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407.

Fairchild v Glenhaven Funeral Services [2002] UKHL 22.

Hearne v Royal Marsden Hospital NHS Foundation Trust [2016] EWHC 117 (QB).

Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909.

Lister v Hesley Hall Ltd [2001] UKHL 22.

Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11.

Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB).

Pickford v Imperial Chemical Industries (1998) 1 WLR 1189.

Sidway v Bethlem Hospital Royal Governors [1985] 1 All ER 643.

Snell v. Farrell (1990) 72 D.L.R. (4th) 289.

Sparrow v Andre [2016] EWHC 739 (QB) (QBD).

Bibliography

Journals

Honore, ‘Responsibility and Luck’ (1988) 104 LQR 530.

Mitchell C et al, ‘Exploring the potential duty of care in clinical genomics under UK law’ (2017) 17 (3) Medical law international 158.