DILEMMA 1

Clinical Negligence

Following a period of minor back problems, Abdullah awoke one morning with
severe back pain. He was taken by his wife Zaira to hospital where he was seen
by Mr Young, a junior doctor who suspected a prolapsed disc. However,
Abdullah was discharged later that day despite it being clear that he required
emergency surgery.

Abdullah’s condition soon deteriorated and, following a scan at a different

hospital three days later, he was diagnosed with a severe prolapsed disc by Dr
Bones, a senior spinal consultant. By that point, emergency spinal surgery had
been delayed for four days and, as a result, Abdullah suffered permanent
nerve damage having developed cauda equina syndrome. When Abdullah was
given the scan results and the diagnosis, he was told that had he had the
surgery when he attended hospital the first time the cauda equina syndrome
would have been avoided and he would have made a full recovery.

Abdullah has been left in constant pain with a range of distressing symptoms,
which has had a severe impact on his personal and professional life. He has
been unable to return to work because of his ongoing pain and suffering. He
suffers with double incontinence, leg weakness, sciatic pain and depression.

Issues that you should consider include (but are not limited to):
 Duty of Care
 Standard of Care
 Causation

Suggested reading:
 Bolam v Friern Hospital Management Committee [1957] 1 WLR 583
 Bolitho v City & Hackney Health Authority [1998] AC 232 (HL)
 Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
 Wilsher v Essex Area Health Authority [1988] 1 AC 1074
 MacLean A, ‘Beyond Bolam and Bolitho’ [2002] Medical Law
International 205
 Brazier M and Miola J, ‘Bye- Bye Bolam: A Medical Litigation
Revolution?’ [2000] 8 Medical Law Review 85

 Answer:
 Introduction
 Definition – ‘failure to take reasonable care of a patient, which then
results in an actionable harm’
 Criteria to establish negligence:
 In order to establish a claim for negligence the claimant must show that,
on the balance of probabilities:
o The Defendant owed a duty of care to the claimant
o The claimant was in breach of that duty of care; AND
o The breach of duty caused damage/injury to the claimant.
 It may be possible for a claimant to claim negligence under a contract if
they are treated at a private hospital. Standard of care under a contract
is virtually the same as in negligence.
 Duty of care
 There is usually no difficulty establishing a duty of care between health
care professionals and patients.
 Caparo industries v Dickman (Caparo Test):Doctor/ patient relationship
automatically satisfies the test based on:
o Foreseeability of harm
o Proximity
o Fair, Just and Reasonable to impose a duty of care.
 Self-evident that it will be considered fair, just and reasonable that a
duty of care arises in patient/doctor relationship.
 But there is sometimes difficulty in ascertaining the precise point in
when the duty of care will arise.
 As soon as a treatment team in hospital has undertaken to care for a
patient all members of the team will owe a duty regardless of the stage
of treatment. Legally the consultant is in charge of the patient in the
care of another professional then she will not be liable for any
negligence, unless the care was left to someone not properly able to
care for them so maybe through lack of competence of experience.
 Barnett v Chelsea & Kensington Hospital Management Committee-
Barnett went to the hospital with severe stomach pains and vomiting. He
was told to go home and see his GP in the morning, but In that time he
 died from arsenic poisoning. Although the case failed on a causation
basis as there would have been nothing that the doctor could have done
if had seen the patient, it was still established that there was a duty of
care owed.
 In the case of Abdullah that it was foreseeable that giving someone that
the wrong diagnosis and the not applying the right kind of treatment
could cause harm. (Donoghue v Stevenson)
 When Abdullah consulted the junior doctor then proximity was
established.
 Policy would say that doctors cannot be performing malpractice and
incorrect procedures and therefore a duty is owed.
 Breach
 Breach of duty occurs where the practitioner fails to meet the standard
of care expected of them in the circumstances. The critical issue is to
decide what standard is appropriate in the circumstances. The
reasonable man test – Blyth v Birmingham Waterworks (1856)
 The standard expected of the skilled professional – Bolam v Friern
Hospital Management Committee: “the test is the standard of the
ordinary skilled man exercising and professing to have that special skill”.
Later added – “it is well established law that it is sufficient if he exercises
the ordinary skill of an ordinary competent man exercising that
particular art. “
 A doctor is not guilty of negligence if he has acted in accordance with a
practice accepted by a reasonable body of medical men skilled in that
particular art.
 Doctors are able to set their own ‘in house’ standards – unfair to anyone
who makes a medical negligence claim.
 In the case of Bolitho v City & Hackney Health Authority: The trial judge
applied Bolam and held that there was no duty. It was held that in
applying the Bolam test where evidence is given that the other
practitioners would have adopted the same method that it must be
demonstrated that the method was based on logic and was defensible.
 As a result of Bolam, if a doctor can show that a respected body of
medical opinion would support their approach, they will have a defence
– Ecclestone v Medway NHS Trust. – Supports the Bolam test.
 In the case of Wilsher v Essex Area Health Authority [1988]: The
standard of care expected is linked to the post which the individual
 occupies, rather than the rank or status that he holds. This also applies
to individuals who are inexperienced. On the balance of probabilities, it
was more likely that one of the other risks had caused the injury.
Therefore, failed on causation.
 In the case of Abdullah when applying the Bolam test it can be criticised
because doctors themselves are able to set standards ‘in house’ which
gives an unfair advantage to those making a medical negligence claim.
 The duty has been breached because Mr Young the Junior doctor had
failed to perform surgery on Abdullah and instead discharged him early
which caused him to suffer further harm.
 Mr Young did not do everything required as it had been clear that
Abdullah needed emergency surgery. With the Bolam test requirements
it can be argued that Mr Young did not act in the same manner as
another reasonable doctor in the same profession as a reasonable
doctor would get more guidance from other doctors and get advice as to
what should happen with Abdullah and most likely any other reasonable
doctor would conclude that surgery was needed and they would have
known that any more delay to Abdullah’s surgery would cause the harm
to worsen.
 When applying Bolitho another practitioner would not give evidence to
suggest that the same method of treatment would be used base on logic
and was defensible. In Abdullah’s case no other doctor would have
discharged Abdullah and instead would have made him go through
surgery so it can be determined that Mr Young’s action was not logical
or defensible and so he did have a duty of care for Abdullah and that
duty had been breached.
 Causation
 In order to recover damages the claimant must establish that his injury
or loss was caused by the Defendant’s negligence. This can often be
difficult to prove in clinical negligence cases.
 Traditional test of causation – ‘But for’ test “would the claimant have
suffered the same injuries but for the Defendant’s negligence?” If, on
the balance of probabilities, the answer is yes the action will fail. If the
answer is no, the action will succeed unless the damage is too remote.
The balance of probabilities must be more than 50% in order for a claim
to succeed
  Barnett v Chelsea: Although the case failed on causation basis there was
nothing the doctors cod do to save his life even if they had diagnosed
the arsenic poisoning so he would have still died regardless
 In the case of Abdullah without the junior doctors negligence Abdullah
would not have suffered the injuries to the extent that he had as it was
said when he attended hospital the first time the cauda equina
syndrome would have been avoided and he would have made a full
recovery. Therefore, on the balance of probabilities there was a better
chance than 50% that he would have fully recovered so Abdullah can
claim for Mr Young’s negligence because the chain of causation had not
been broken.
 Conclusion
 Loss of chance
 Where chance of recovery can be quantified, Loss of Chance can be
considered
 Hotson v East Berkshire – HOL said that damages could only be awarded
if it could be shown that if properly tested there would have been a
greater than 50% chance of recovery.
 As in the case of Abdullah as this was the case as if he had been tested
when he first went to the hospital and had got the surgery he would
have made a ‘full’ recovery which means there was a 100% chance of
recovery therefore he would be able to claim for 100% of the loss of
chance.
 Abdullah would also be able to claim for the loss of earnings as due to
the negligence he had suffered from double incontinence, leg weakness,
sciatic pain and depression and has been said that he has been unable to
return to work therefore, he would be able to claim for this.

Class answers
 Introduction – Outline the facts of the case unless comparing cases and
applying case judgement.
 This is a case of clinical negligence and Abdullah needs to prove on the
balance of probabilities duty, breach and causation. This will be the
focus of this piece.
 Put in sub-headings
 Duty
 As he was a junior doctor he could have discharged his duty to the senior
doctor.
 The doctor patient and patient relationship is an established duty of care
owed between doctor and patient. – Found in Barnett
 Breach of Duty
 Could add the case of Penny
 For Blyth you say what does Blyth say and why? it is not applicable here?
 It does not apply here as you would not expect a reasonable man to
have the same skill set as a doctor as they asre more skilled and gone
through more training than the reasonable man.
 Put in the Wilsher case after the Bolam test as it sets the standard.
 Put in the Wilsher quote.
 Discuss ethics
 Talk about the issues with Bolam
 It is a high hurdle for patients to establish.
 The criticsms of Bolam
 Bye by bolam
 Beyond bolam and Bolitho
 Look in the footnotes and judgements for the articles for additional
information and cases.
 Bolitho test for the courts to determine what is reasonable rather than
the doctors in the specific circumstances.
 Case of Penny highlights this fact.
 Bolitho gloss as it has been added on to the Bolam test
 Apply the Bolam and Bolitho test
 We would need an expert in order to applying the Bolam test
 It is okay to say when there is not any sufficient answers?
 Need to read the judgement of Bolitho – The judgement of Lord Brown
Wilkinson.
 Causation
 The but for test is the start
 Causation add vicarious liability
 Argue the but for test but on the alternative talk about the loss of
chance
 We have satified the but for test.
 There could be multiple causes as he had minor back problems
  Because he already had the need of surgery it may make it hard to prove
the but for test.
 The risk of harm – Mcghee
 The delay in surgery had materially contributed to the risk of them
getting the syndrome.
 Conclusion
 If duty, breach and causation was established
 Duty was established
 Breach we need further information
 Causation – The but for test may not apply but the material contribution
test will apply.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 583