Legal Analysis of Negligence in Healthcare Scenario

This essay responds to the legal issues raised in the scenario presented. The essay examines the principles of negligence and applies the legal principles to the issues in the scenario including final legal advice to Peter. The issue in this case is whether Peter has an action in negligence against the hospital and the doctors involved in the case for the death of Adriana and harm to Baby Charlotte. Seeking a law dissertation help in place to navigate through such intricate legal matters provides clarity and expert guidance to individuals like Peter facing same sort of challenges.

Negligence is the failure of a person to take reasonable care for avoiding reasonably foreseeable harm to another person. A claimant in action for negligence must establish duty of care owed by the defendant, the breach of this duty by the defendant, consequential harm of the breach and causation, which is the link between the action of the defendant and the harm to the claimant. In order to establish duty of care, the claimant must establish that that there was a reasonable foreseeability of harm, that there was an existence of a sufficiently close relationship between the claimant and defendant, and that fairness demands that the duty of care be imposed on the defendant. a three-stage test was laid down by the court for the purpose of determining whether the defendant does owe a duty of care to the claimant or not. Therefore, in this case, there must be a sufficiently close relationship between doctor and claimant for the claimant to have an action against the doctor; a sufficiently close relationship between the doctor and the patient is established if harm to patient due to

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1. Donohue v Stevenson [1932] UKHL 100.
2. Caparo plc v Dickman [1990] AC 605.
3. Ibid.

misdiagnosis or lack of medical care can be reasonably foreseeable. It has been explained that proximity between the claimant and the doctor can be proved if there is physical proximity, circumstantial proximity, causal proximity and assumption of responsibility by the doctor.

The breach of duty of care is also to be established by the claimant. There is an objective standard of care, which is based on the ‘reasonable person’ test. In cases involving medical negligence, courts use the reasonable person comparator in the field of medical science, where the conduct and actions of the defendant doctor are compared with a reasonable person from the same profession and with similar skills and knowledge. Recently, the Supreme Court applied the principle of standard of care in Montgomery, holding doctor negligent for omission to give medical advice which is to be reasonably expected. In cases involving misdiagnosis as well, the objective standard of care is applied to establish if the such misdiagnosis is reasonable in context of the reasonable person comparator.

In medical negligence cases, causation is to be established on the balance of probabilities. In the case of Bolitho, the court held that causation must be evaluated on the balance of probabilities; the doctor is liable for negligence if the patient is left worse off than they were before they visited the doctor. To establish negligence on the balance of probabilities, the claimant is required to convince the court that on the basis of factual data, it can be said that the harm was caused due to the negligence of the defendant. This can be illustrated with the help of two authorities. In Chester v Afshar, the defendant doctor advised the claimant to undergo surgery but failed to inform her of the 1-2% risk involved in the surgery, and when the claimant suffered a medical complication, the court held that the claimant can establish on the balance of probabilities that if informed of the risks, she may have opted out of surgery. In Hotson, failure to correctly diagnose and treat the claimant was not held to be sufficient to establish negligence on the basis of balance of probabilities because even the correct diagnosis and treatment may not have prevented the complications to the patient.

In cases where multiple causes of negligence may be involved, the courts apply the but for test to establish the liability of the defendant but for whose conduct and actions the harm to the claimant would not have taken place. The but for test is used to establish causation of the actions of the defendant and the harm to the claimant. The claimant has the onus to establish that but for the actions of the defendant, the injury would not have taken place.

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4. Ibid.
5. Colin Mitchell, et al, ‘Exploring the potential duty of care in clinical genomics under UK law’ (2017) 17 (3) Medical law international 158, 178.
6. Honore, ‘Responsibility and Luck’ (1988) 104 LQR 530.
7. Sidway v Bethlem Hospital Royal Governors [1985] 1 All ER 643.
8. Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11.
9. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
10. Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB); Hearne v Royal Marsden Hospital NHS Foundation Trust [2016] EWHC 117 (QB).
11. Bolitho v City and Hackney Health Authority [1998] AC 232.
12. Chester v Afshar [2004] UKHL 41
13. Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909.
14. Snell v. Farrell (1990) 72 D.L.R. (4th) 289.
15. Pickford v Imperial Chemical Industries (1998) 1 WLR 1189.

In some cases, the courts apply material contribution to establish medical liability. Material contribution to the condition of the patient can be established if the misdiagnosis by the doctor or the failure to diagnose the patient contributes materially to the harm done to the patient. Thus, in cases where there are multiple defendants or causes of injury, the courts can consider whose contribution was the most substantial. This is illustrated by the decision in Robinson v Post Office, where the court held that the employer’s contribution in leading to an accident at work was the most substantial contribution to the injury caused to the claimant who was given an anti-tetanus injection at work, the result of which was that he suffered brain damage, which could not have been avoided even if the doctor performed tests. In Fairchild, the material or substantial contribution test was used in a case where the claimant suffered mesothelioma caused by exposure to asbestos dust with different employers, with the court holding each employer liable for material contribution in the absence of ability to prove the but for test.

Causation of the defendant can be interrupted by novus actus interveniens, or a new intervening act, which also leads to harm. In a situation where the intervening act of another person causes further harm to the claimant, then the chain of causation may be broken with respect to the defendant, or the liability may be divided between the defendants.

In cases where there is a failure to diagnose a medical condition or illness, or a misdiagnosis by the doctor, the courts apply a standard of care based on the standard expected from the members of the medical profession with the similar experience and expertise. The standard of care is objective in nature and it is determined based on the reasonable standard expected from medical professionals; liability for negligence arises for breach of this standard of care. Thus, if the doctor fails to give medical advice as per the objective standard of care, he will be liable for negligence. Objective standard of care also includes relevant tests that are to be given to the patient and the objective standard of care requires that the diagnosis of the patient should be based on relevant tests. If the patient’s diagnosis is not based on relevant medical tests ordered by the doctor, the patient may claim that there is a deviation from the reasonable practices within the medical profession.

In this case, Adriana developed pre-eclampsia during pregnancy, a condition which her GP failed to inform her despite her regular visits and blood pressure checks. Although, her GP advised that her blood pressure was a little high, he failed to inform and warn Adriana about the possible consequences of high blood pressure and how pre-eclampsia manifests itself in pregnancy condition of pre-eclampsia. In ignorance of this, Adriana continued to work as a journalist, and it was only after her collapse at work, was she finally informed of her condition by consultant obstetrician, Dr Williams. This indicates that the GP failed to inform Adriana about her medical condition as would be expected from him. This has relevance to breach of duty on part of the doctor.

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16. Dr Sido John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407.
17. Ibid.
18. Robinson v Post Office (1974) 1 WLR 1176.
19. Fairchild v Glenhaven Funeral Services [2002] UKHL 22.
20. Sparrow v Andre [2016] EWHC 739 (QB) (QBD).
21. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Sidway v Bethlem Hospital Royal Governors [1985] 1 All ER 643.
22. Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11.
23. Ibid.
24. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

Dr Williams advised that Adriana could continue working and did not advise her as to how her condition may affect her and the baby. The possible harm to kidney and liver functions, possible blood clotting problems, cause pulmonary oedema (fluid on the lungs), seizures and potential maternal and infant death are some of the possible effects of her condition, which were not informed to her. Adriana should have been informed of these possible complications. As per the authority discussed in this essay above, it can be argued that Dr Williams also failed to inform Adriana about her condition and its effect and breached the objective standard of care.



Adriana’s condition deteriorated, her blood and urine tests were delayed while she was under the care of Dr Ferris, who advised that the baby should be delivered as a matter of urgency. Notwithstanding this advice he agreed that surgery could be delayed. Dr Ferris did not advise Adriana of the effects of preeclampsia on the baby, nor of the consequences of the further delay in delivery. Dr Ferris has breached duty of care as per the authority cited earlier, which indicates that failure to inform of risks of medical procedures can lead to liability in negligence.

There is the factual causation in the failure of the junior doctor who delivered baby and did not remove the placenta. It can be argued that ‘but for’ the actions of the junior doctor in failure to remove the entire placenta, Adriana would not have suffered the harm. On the basis of the Bolam test applicable in medical cases, it can be argued that the junior doctor was expected to remove the placenta fully. 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, which can lead to the bleeding and haemorrhage. Therefore, it can be argued that on the balance of probabilities, the junior doctor is liable for the injury to Adriana which led to her death.

In their defence the doctors could argue novus actus interveniens by reason of the accident that the ambulance was subsequently involved in on the way to the hospital. 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. However, it may also be counter argued by Peter that but for the negligence of the junior doctor who failed to remove the placenta, the haemorrhage would never have taken place and Adriana would not have been in the ambulance and met with the accident. It may also be argued that the intervening factor does not affect the material contribution to the harm caused to Adriana because of the negligence of all the doctors involved who failed to inform her of the medical condition.

With respect to Baby Charlotte delivered by a junior doctor, the doctor can be sued. There is no need to apply a lower standard of care for the junior doctor based on the Nettleship decision, in which the House of Lords held that applying lower standards can complicate situation with shifting standards of care. As per the Bolam test, and the decision in Bolitho, the doctor can be held liable for negligence due to breach of duty to take care. It can be argued by Peter that the baby suffered damages to her liver and brain due to the negligence of the doctor, and applying the above authorities, breach of duty can be established.

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25. Chester v Afshar [2004] UKHL 41.
26. Ibid.
27. Ibid.
28. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
29. Pickford v Imperial Chemical Industries (1998) 1 WLR 1189.
30. Nettleship v Weston [1971] 2 QB 691.
31. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
32. Bolitho v City and Hackney Health Authority [1998] AC 232.
33. Sparrow v Andre [2016] EWHC 739 (QB) (QBD); Fairchild v Glenhaven Funeral Services [2002] UKHL 22.

To conclude, Peter has an action against the hospital for the negligence which led to the death of Adriana and the harm to baby Charlotte. Medical negligence in this case can be established on the basis of balance of probabilities, as well as material contribution to harm. Intervening factor of ambulance collision may be argued by the other side but Peter can argue that but for the negligence of Dr Wilson, Adriana would not have had haemorrhage.

BIBLIOGRAPHY

PRIMARY SOURCES

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

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

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.

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

Nettleship v Weston [1971] 2 QB 691.

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

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

Robinson v Post Office (1974) 1 WLR 1176.

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).

SECONDARY SOURCES

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.

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