Medical Negligence Handout
Introduction
Medical negligence is based on the fiduciary relationship between the doctor and the patient
and tends to cover three separate areas: Advice given by medical professionals; diagnosis by
medical professionals and treatment given by medical professionals. The rules themselves
follow the same pattern as seen in general negligence, whereby the patient would need to
prove a duty of care, breach of that duty and causation.
Duty of Care
The duty of care owed by doctors towards their patients is well established through cases
such as Wilsher v Essex Area Health Authority [1988] 1 AC 1074.
Note: For further information on how to establish a duty of care refer back to the Duty of
Care Handout.
Breach of Duty: Standard of Care
The standard of care in medical negligence is taken from case law and reflected in the
following cases:
Wilsher v Essex Area Health Authority [1988] 1 AC 1074
Ultimately, the case failed on the basis of causation but an important rule was established in
respect of the standard of care expected by a junior doctor. The rule being that no matter what
the level of experience of expertise of the doctor, is they will always be held to a
professionally competent and experienced doctor.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
The claimant was given electro-convulsive treatment without having been given a relaxant
drug, and without sufficient physical restraint. This resulted in a fractured hip, an injury
which the claimant was not warned could be a result of the treatment.
The courts found that there was not breach of duty as other responsible doctors within the
profession would have acted in the same way. The importance of the case rests in the fact that
a doctor will not be in breach so long as when exercising their skill they act ‘in accordance
with a practice accepted as proper by a responsible body of medical men skilled in that
particular art.
Bolitho v City and Hackney Health Authority [1998] AC 232
The case involved a two-year-old who suffered from croup and went into respiratory crisis.
The defendant doctor was urgently summoned but did not attend and his substitute was
uncontactable.
The trial judge (based on evidence given by an expert in paediatric respiratory medicine
called by the defence that intubation would not have been appropriate) held that, judged by
the Bolam standard, a decision by the doctor not to intubate would have been in accordance
with a body of responsible professional opinion and causation had not been proved. This
decision was upheld on appeal.
Ryan v East London and City Health Authority [2001] 2 WLUK 99
The case involved the wrongful diagnosis of a non-malignant tumour (a benign tumour) as a
malignant tumour (a cancerous tumour). As a result of the wrongful diagnosis the claimant
underwent extensive surgery that was unnecessary.
It was held that the Health Authority in the case was negligent.
Sidaway v Bethlem Royal Hospital [1985] AC 871
The claimant underwent a back operation and suffered paralysis as a result. There was no
evidence that the operation had been carried out negligently but the claimant argued that she
had never been informed that there could be a risk of paralysis. The risk was very small but
she argued that if she had known, she would not have undertaken the surgery.
Following the Bolam test, it was decided that a reasonable doctor acting under similar
circumstances would have acted the same therefore there would be no breach of duty.
However, they did warn that if the risk were so obviously necessary to enable an informed
choice on the operation then the decision may be different.
Montgomery v Lanarkshire Health Board [2015] UKSC 11
This case re-affirmed the departure from Sidaway v Bethlem Royal Hospital choosing instead
to follow cases such as Chester v Afshar [2005] which found that all material risks apparent
to the treatment should be disclosed to the patient in order for them to make a fully informed
and independent decision on whether to consent to the proposed treatment.
It was decided that the test of materiality was whether a reasonable person in the patient’s
position would be likely to attach significance to the risk itself, and also, whether a
reasonable doctor would be aware that such a reasonable patient would attach such
significance to this.
The case itself involved the question of whether a woman in labour would have chosen an
emergency caesarean had she known of the risk of shoulder dystocia to her baby.
Causation
The rules of causation in medical negligence are the same as those in other cases of medical
negligence with the main test being that of the ‘but for’ test seen in Kensington xxx (refer back to the
Handout on Causation for more on this). The ‘loss of chance’ argument emerged to try and counter
the need to prove causation on the balance of probability and was based on past cases such as Chaplin
v Hicks [1911] 2 KB 786.
Gregg v Scott [2005] UKHL 2
Gregg (claimant) consulted Scott (defendant) about a lump under his arm, which Scott failed to
diagnose as a form of cancer. This delayed the beginning of his treatment by 9 months which expert
evidence stated reduced his chances of surviving more than 10 years from 42% to 25%. On the basis
of the reduction from 42% to 25% he argued that the defendant had ultimately reduced his chances of
survival for longer than 10 years and therefore he had suffered a loss of chance by 18%.
By a 3:2 majority the courts found against Mr Gregg. A number of colourful judgements emerged
from the case but ultimately they considered the loss of chance argument as being ‘a second bite of
the cherry’ meaning that if on the balance of probability Mr Gregg had succeeded he would be
entitled to 100% compensation for his losses. However, if unsuccessful, and the loss of chances
argument succeeded this would mean that Mr Gregg had a second opportunity and would still be
entitled to something (18% of his losses). She considered this to be unfair on the defendant as it meant
ultimately the claimant either got everything, or at least got something. Furthermore, such a change in
approach was considered to be such a radical change away from the law that this could only be
enacted by Parliament.
In dissenting, Lord Nicholls considered such a disregard for medical evidence and the reduction in
loss to be unnecessary and unjust. He believed that if in medical terms the reduction could be
recognised that the courts should do the same and to do otherwise created an arbitrariness in the law
that was not acceptable. If argued that if your chances of survival fell below 50% they should not just
be disregarded.
Consider: Although the ‘loss of chance’ has not been accepted by the courts the
dissenting judgement was quite strong. Regardless, cases have continued to be decided
this way (Shembri v Marshall [2020] EWHC 595). However, critics have more recently
been vocal about the injustices this can bring and some cases have attempted to bring
in rationales based on Bonnington and McGhee. This has already been seen in cases
such as Bailey v MOD [2009] EWCA 1052 and Williams v Bermuda Hospital Board [2016]
AC 888 but courts have maintained that they still adhere to the ‘but for’ test as the
claimant must still prove that on the balance of probability the defendant materially
contributed to their harm. Do you find this argument convincing? Or do you think this is
essentially a method of circumventing the traditional ‘but for’ test under certain
circumstances?
