Medical Malpractice

Introduction
Learning Objectives: how does the law respond to, and how should the law respond to medical
malpractice, specifically, that of doctor’s malpractice (excluding a failure to provide sufficient
information, and pre­natal negligence, which is covered later).

Learning Goals:

• What practical ways are there for patient’s to bring an action at law for medical negligence?
• What non­legal recourse do patients have to address medical negligence?
• What are the issues with how medical negligence is dealt with by the law, and how can it be
reformed?

Central Issues:

• Patients whose treatment goes wrong can bring negligence claim. For private patients, there is
an implied contractual term that the doctor will exercise reasonable care and skill,
indistinguishable from the doctor’s duty of care.
• Establishing a doctor’s duty to the patient is straightforward. More difficult whether doctor also
owes duty to third parties.
• According to the Bolam test, modified by Bolitho, the doctor won’t have acted negligently if they
acted in accordance with practice accepted as proper by a reasonable body of medical opinion, if
that opinion is capable of withstanding logical analysis.
• Having established a breach of duty, there must be proof of causation of damages. This may be
difficult where the patient is already ill, meaning there may exist multi­causal deterioration.
• The medical negligence system is costly and inefficient, with few claimants succeeding. It fosters
a ‘blame’ culture, which makes learning from mistakes harder.
• Doctors may face prosecution in cases of gross negligence leading to manslaughter. More
generally, the medical council may investigate the doctor’s fitness to practice. Patients can also
complain to the NHS.

Underlying ethical concerns

Typically, people assume that when something goes wrong in practise, patients want
compensation. However, empirical evidence suggests patients prefer an apology and reassurance
that it won’t happen again.

Medical negligence has a rather narrow focus on personal injury, being either physical or
recognised psychiatric illness. This makes it ill­equipped to deal with some of the poor care and
patient suffering e.g. leaving patient’s unwashed, with inadequate access to food, water, toilet and
clean sheets.

Responses to Malpractice
A. Breach of Contract

Where patients are treated in private health, they normally have a contract with the doctor directly.
The terms of this contract may differ, but they will obviously include terms implied under ss. 4 and
9 of the Supply of Goods and Services Act, medical devices be of good quality and fit for purpose.

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Statutory limits on use of exclusion clauses may also apply e.g. impossible to restrict or exclude
liability for death or injury caused by negligence.

It is unlikely for such contracts to contain guarantee clauses, and it is unlikely the courts will imply
such terms into the agreement (except in rare cases e.g. if a patient goes in to have a limb
amputated, then that is what they should expect to happen).

However, courts will imply in such contracts that a doctor will use ‘reasonable care and skill’. In
practise, this is no different to the doctor’s duty of care.

B. Negligence

To succeed in negligence, you need to establish a duty of care (usually between doctor and
patient, and the employer of the doctor may be held vicariously liable), that the doctor breached the
duty by failing to exercise reasonable care and skill, and that the breach caused the injuries (which
were not too remote). Finally, there may be defences available to the doctor.

Existence of duty

The duty between doctor and patient is well established, and requires an exercise of reasonable
care and skill in diagnosis, advice and treatment. Provided the breach of this duty occurs in clinical
situations, the employer will also be vicariously liable. In three situations however, the question of
duty is more complicated.

1. Duty owed to strangers?

Firstly, there are times where the doctor may be treating a ‘stranger’ as opposed to a ‘patient’.
When exactly does the duty arise then? The common law position is that the duty is imposed once
the doctor assumes responsibility for the patient’s care. In hospitals, this might be when the
patient presents for treatment, before being actually seen by the doctor (as was in Barnett v
Chelsea and Kensington, where a doctor who was called to see some A&E patients rejected
seeing them, and those patients ended up dying, the court held the doctor breached the duty).
Note: the doctor’s duty does not arise unless they know of the patient’s need for
treatment/services.

2. Duty owed by NHS and other bodies?

Secondly, in addition to doctors, and employers (being vicariously liable), might the NHS owe
some duty of care to patients to ensure they get adequate treatment? What about the CCGs or the
Secretary of Health? This goes to the question of proximity, and whether there is sufficient
proximity to establish a duty of care.

• In Wilsher v Essex, the Court of Appeal thought the NHS had a duty to provide patients with
properly skilled medical staff and an adequately equipped hospital. An obvious problem with this
is the problem of resource scarcity. On the one hand, courts are willing to impose a minimum
standard of care, but on the other, unwilling to interfere with policy decisions. This itself leads to
somewhat arbitrary outcomes: in Bull v Devon, the court held that making a patient wait for an
obstetrician re urgent labour for an hour fell below the minimum standard, whereas in Garcia v St
Mary’s, the court held that making a patient wait 30 mins after losing consciousness following
surgery was not below the minimum standard.

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• In cases where the patient is treated privately, the CCG that commissioned the treatment owes a
primary duty to arrange adequate care, even though it is not the doctor’s employer.

• In Re HIV Heamophiliac Litigation, patients (who were haemophiliacs) bought a claim against the
Secretary of Health for failing to warn patients of the risks of blood­transfusion contamination.
The Court of Appeal allowed the case to trial because there was an arguable case for breach of
duty. Note: this kind of outcome is exceptional, because haemophiliacs are uncommon, and
normally known in advance that they will need to have blood products at least once during their
life at some point. More commonly, there is no relationship of proximity sufficient to justify the
existence of duty between the Secretary of Health and an individual patient.

3. Duty owed to non­patients and third parties?

Thirdly, might doctors or other medical practitioners owe duties to non­patients? Consider the
following scenarios:

• Wrongful pregnancy ­ where sterilisation has been carried out negligently, or a patient advised
negligently about its success, it is possible (for women) to recover damages for pain and
discomfort associated with pregnancy and childbirth. For men, no damages are recoverable
(e.g. for normal costs of raising a child, but an exception might be made for special costs), but
the man’s female partner may be able to recover, if she was within the doctor’s contemplation at
the time of the sterilisation operation. Indeed, a doctor does not owe a duty to all of the patient’s
future sex partners (Goodwill v BPAS).

• Psychiatric injury ­ the claimant (third party) must have a close relationship with the primary
victim (who suffered from medical negligence); be close both in terms of time and space to the
incident, and they must witness it (or its immediate aftermath) with unaided senses; and must
suffer a recognisable psychiatric illness as a result (together, the Alcock criteria). Again, this
leads to some arbitrary results: in Sion v Hampstead, a father who stayed in hospital with his
son, who lapsed into a coma and died 14 days after a motor vehicle accident, unsuccessfully
claimed in damages for his own psychiatric illness as a result of medically negligent treatment on
his son because there was no sudden appreciation by sight or sound of a horrifying event;
whereas in North Glamorgan v Walters, a mum whose newborn’s death was a result of the
defendant’s negligence, and who witnessed the newborn’s distressing final 36 hours, was said to
have the requisite shock; and in Liverpool Womens Hospital v Ronayne, where the claimant
observed a rapid deterioration in his wife’s condition after a negligently performed hysterectomy,
unsuccessfully claimed for damages because there wasn’t the necessary element of suddenness
and shock horror (using the language of the court in Alcock, a ‘sudden appreciation by sight or
sound which leads to a violent agitation of the mind’).

­ What about psychiatric injury to a third party as a result of being communicated traumatic
information by medical professionals? Does this fit into the Alcock criteria? In Page v Smith,
the court held the claimant had to be a primary victim, and to be within the range of
foreseeable physical injury. However, in Farrell v Avon Health, where the claimant arrived at
hospital, and was wrongly told that his newborn baby died, and was given a dead baby to hold
for 20mins, and then told that they had been mistaken, the father claimed for PTSD damages,
as a result of being directly involved in the traumatic incident.

­ Criticising the current requirements at law, Case has argued that it is unlikely the ‘sudden
shock’ will normally be satisfied in a controlled hospital environment. Ahuja has also argued
that the law’s limiting criteria bears no resemblance to evidence of what is actually traumatic
for bereaved relatives. In fact, empirical evidence suggests that seeing the aftermath is less
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 likely to cause serious psychological harm than ‘imagined images’. Mulheron also criticised
the need for the psychiatric illness to be recognised, because DSM categories are designed
to plan treatment, not allocate blame.

• Failure to prevent patient from causing harm ­ in such cases, the doctor has not directly caused
the harm, but more so, it was an omission. Relevantly, a three stage test applies: (1) the
claimant’s injury must be foreseeable; (2) there must be a proximate relationship between the
claimant and the doctor; and (3) the imposition of duty must be just, fair and reasonable
(together, the Caparo criteria).

­ In Palmer v Tees Health, a man with a long history of psychiatric problems, abducted,
sexually assaulted and killed a four year old girl. The mother of the girl claimed the defendant
health authority’s medical staff failed to diagnose there was a real, substantial and
foreseeable risk of this man committing serious offences against children. The court held that
there was not sufficient proximity between the claimant and the medical staff, and the
unidentifiable future victim made it impossible for the staff to protect them from harm.

­ More difficult questions arise re injury to third parties caused from reckless driving or
infectious disease. Again, questions of proximity are relevant here, as well as questions of
whether duty would be imposed justly, fairly, or reasonably.

• Medical examinations ­ it is obvious that a doctor employed to conduct medical examinations on

behalf of third parties owes a duty of care to them.

Breach of duty

Having established duty, the next step is to prove that the doctor breached their duty. In order to
work out whether there has been a breach, it is necessary to establish what standard of care could
reasonably have been expected (i.e. determine what the content of the duty was and whether this
was met). This standard will be judged at the time of the alleged negligence.

What is the standard of care?

The standard of care for a medical professional is that of a person skilled in that particular area of
practice which they are engaging in. The standard will be judged at the time when the alleged
negligence occurred. The central problem with judging the standard of care is that reasonable
doctors may disagree as to what course of action/treatment should be preferred.

The test is the Bolam test, glossed by Bolitho. The test being that of the standard of an ordinary
skilled man exercising and professing to have that special skill. The man need not possess the
highest skill, provided he is exercising the ordinary skill of an ordinary competent man exercising
that particular art e.g. if a GP applies anaesthetics, he is judged at the standard of an anaetheticist
(this arguably encourages doctors to not overstep their boundaries, although difficulties arise re
whether the particular treatment/procedure is something that is commonly done by a GP in place of
a surgeon or anaestheticist, and accordingly which standard they should be judged at). Compare
this with the ordinary standard of negligence, that of a reasonable man. Might this be a case of
medical exceptionalism ­ is medicine too complex, or is the profession exhibit strong solidarity, or is
it the high regard the profession is normally held? Note also: the Bolam test being applied in the
context of informed consent, the determination of best interests, and competence of children.

Relevantly, a doctor has not acted negligently if he has acted in accordance with a particular
practise (of which there may be more than one) accepted as proper by a responsible body of
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medical professionals skilled in that particular art. Furthermore, a judge’s preference for one body
of distinguished professional opinion is not sufficient to establish negligence in a practitioner whose
actions have received the seal of those whose opinions truthfully and honestly held (i.e. not
pigheaded or obstinate) (per Lord Scarman in Maynard v West Midlands). Note here the emphasis
on truthfulness and honesty ­ for many years, doctors could avoid negligence if they just got
another doctor to back up their practice. However, where this practice is contrary to elementary
teaching (i.e. pigheaded), then such corroboration is unlikely to assist (as in Huck v Cole, where a
doctor failed to treat a women’s septic finger with penicillin, called on the expert evidence of four
other doctors who corroborated with the particular course of action adopted, the court nevertheless
found the doctor to be negligent). In Bolam, the plaintiff suffered injury as a result of ECT being
conducted without manual restraint. The court held that this practice was not contrary to a body of
medical opinion, and so the doctor was not negligent.

In Bolitho, the Bolam test was glossed by the following caveat: the views of expert witnesses must
not only be honestly and sincerely held, but also capable of withstanding logical analysis. Where a
judge can be satisfied that the body of expert opinion cannot be logically supported at all, such an
opinion will not provide the benchmark by reference to which the defendant’s action falls to be
assessed. Arguably, when Lord Browne­Wilkinson stated this, he had in mind the case of Huck v
Cole. But not all cases are that clear, and it is very easy to have experts disagree. Just being in
the minority of medically accepted views does not mean the view is irrational or illogical though.
Mulheron has, in this vein, identified seven factors which do appear to be relevant to whether a
view is illogical or indefensible (any one may be a red flag):

1. The peer professional opinion has overlooked that a clear precaution to avoid the adverse
outcome for the patient was available ­ ‘clear’ here meaning it would be obvious to a layperson
invoking no particular medical knowledge. In practise, where a doctor fails to do something a
layperson would do, then it fails to meet the standard (e.g. failing to examine the claimant’s
mother properly during childbirth, or failing to pay attention to symptoms reported by someone
who recently experienced a head injury). The one caveat to this factor is if the patient and
doctor disagree as to the risk of undertaking that precaution e.g. involved high level of
complexity or uncertainty. In this situation, courts would be unlikely to interfere with the
doctor’s judgement. Arguably in this kind of situation, there would be no ‘clear’ precaution.

2. Where the doctor has to balance the risks and benefits of treatment to persons other than the
directly injured patient (e.g. mother and brain damaged baby situations), the court will be
reluctant to interfere and overturn the expert opinion on Bolitho grounds.

3. Failure to weigh the comparative risks and benefits of the chosen course of conduct ­ the
Bolitho exception will overrule Bolam evidence where the defendant doctor’s expert evidence
did not undertake a comparative risk/benefit analysis of that doctor’s conduct and of any
alternative course that would probably have avoided the adverse outcome. However, the law
will not insist upon a course of conduct (via Bolitho) that completely eliminates the risks of an
adverse outcome; nor does the law require the doctor himself to have considered and rejected
all alternative treatments in order to successfully rely on Bolam.

4. Where the accepted medical practice contravenes widespread public opinion ­ this is a broader
general statement of the first factor.

5. Where the doctor’s peer medical opinion cannot be correct when taken in the context of the
whole factual evidence ­ when peer opinion ignores or contradicts known medical facts or
extrinsic facts, Bolitho will be activated.

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6. Where the doctor’s expert medical opinion is not internally consistent ­ the medical opinion
must be internally consistent on its face. It must make cogent sense as a whole, such that no
part of the opinion contradicts with another e.g. I wouldn't do it the way X did it, but I don't think
he was wrong in doing it his way.

7. The peer professional opinion has adhered to the wrong legal test.

So what then is the current approach? Essentially, the Bolam + Bolitho test is two tiered. First, the
court must ask whether the doctor acted in accordance with responsible medical opinion (which
might be established by expert medical testimony). Arguably, the first step of the test presupposes
that the medical opinion is capable of withstanding logical analysis. If the doctor falls sort at this
stage, it is an easy case of medical negligence. Where the doctor doesn’t fall short at this stage,
the question is expressly whether the body of medical opinion with reference to which the doctor’s
standard did not fall short, is capable of withstanding logical analysis (which was presupposed
before at the first stage). Note: importantly there is no superiority analysis i.e. the judge needn’t be
satisfied that one view is better than the other, if the two steps of the Bolam + Bolitho test are
satisfied (of course, whether or not courts will actually be engaged in a superiority analysis at the
back of their mind is another question entirely, one which Lord Woolf MR answers in the
affirmative). This approach however, does raise questions of whether the courts are stepping into a
role they otherwise shouldn’t (especially in light of Lord Scarman’s caution above). Lord Woolfe,
writing extra­judicially, attributes the court’s shift away from deferential treatment of the medical
profession to a number of causes e.g. developing awareness of patient rights, and the automatic
presumption of beneficence being dented by a number of cases.

As a final point, note that the NHS Litigation Authority (NHSLA), Royal College of Medicine, and
NICE all have published best practice guidelines and risk management standards. Courts
increasingly rely on these professional guidelines to assess the logic of the expressed medical
opinion. Its not to say a deviation from the guidelines will necessarily result in negligence (since
the nature of guidelines is such that they fit a majority but not fit everyone, but just requires a
doctor to carefully explain and justify departure from it), but they are likely to form a good starting
point (i.e. establish prima facie case either for or against negligence). Brazier and Miola argue that
the presence of these guidelines actually makes courts better equipped for their role in settling
medical negligence cases. However, Samata et al. comment that this is simply a new form of
paternalism ­ the guidelines know best (which almost brings the issue back to a principled
guideline approach, versus an unprincipled approach).

Is the standard of care fixed?

Should the standard of care be lowered in the following four situations:

1 Scarce resources ­ if less than perfect care is inevitable due to resource constraints, how do
courts tell when treatment has failed to meet an acceptable standard? In Knight v Home Office,
insufficient resources didn't offer a defence to negligence but it was relevant to the standard of
care a mentally ill patient could expect in a prison hospital. The patient hanged himself
because of a failure to constantly observe him, but due to lack of resources, this was not falling
short of the standard of care. In Brooks v Home Office, it was held a high­risk pregnant
prisoner was entitled to the same standard of care as any other pregnant woman. Recall Bull v
Devon and Garcia v St Mary’s, and the minimum standard of care expected.

8. If the doctor is treating the patient in an emergency ­ in the context of an A&E situation, the
court in Mulholland v Medway said that the reasonable nurse is one who operates in a busy
A&E environment which has a procedure which the nurse will follow for streaming, and which

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 does not contemplate detailed diagnosis being formed. Similarly for a doctor in A&E, they take
decisions at short notice, in an extremely pressurised environment, and the standard of care
must be calibrated in this reality. More generally, in cases of emergencies, once a doctor has
offered to care for an injured, it is appropriate to take into account the surrounding
circumstances in determining the standard of care to be expected.

9. if the doctor is inexperienced ­ on the one hand, it would be harsh to punish junior doctors, who
learn by no other means than experience. On the other hand, if the standard of care were to
fluctuate according to experience, patients would be well advised to not be treated by junior
doctors, in which case the juniors would never learn. In Wilsher v Essex AHA, the court held
that the standard of care should not be lower for inexperienced doctors, because it is expected
that the junior seek help from a more experienced person. If they do so and still make a
mistake, then the standard is met. However, this conflicts with the limited resources concern,
because it might not be conducive for career progression or workflow for a junior doctor to
constantly ask for a senior doctor’s opinion/review.

10. if the doctor is practising alternative medicine ­ complaints involving alternative medicine are
rare, and it is likely attributed to the fact that people who seek alternative medicine assume a
certain risk of it not going as planned. In the UK, the situation has only arisen once, in Shakoor
v Situ, involving a death as a result of consumption of Chinese herbal medicine. The court held
that, in short, there are two ways of establishing a claim against an alternative medicine
practitioner: (1) prove the defendant did not meet the standard of care of a reasonable
practitioner of that art, or (2) establish that the prevailing standard of care in that art is deficient
on the basis that it fails to take proper account of published evidence re the art.

Criticisms of the Bolam + Bolitho approach

A number of criticisms may be levelled against the Bolam + Bolitho approach, but these criticisms
may cut both ways, and also end up being seen as a strength:

• certainty and predictability of outcomes ­ the rarity with which the Bolitho exception is intended to
apply may result in cases being dealt with more swiftly, and outcomes being more predictable.
However, by the same token, the fact that there is a gloss on the Bolam test may result in more
litigants wanting to ‘give it a go’, and in light of the concerns addressed below re overstepping
judicial boundaries, there is a degree of risk re predictability of outcomes, especially where both
sides are claiming the other side’s expert opinions are logically indefensible.

• undue burden on the patient bringing the case ­ the Bolitho test has introduced an asymmetry to
the litigation between doctors and patients. A doctor only needs to show the court his views are
defensible and capable of withstanding logical analysis. A patient will need to show both that the
doctor’s view is not capable of withstanding logical analysis, but that the patient’s experts’ views
are capable of so withstanding.

• impact on medical innovation ­ this criticism is somewhat tied in with the over­reliance on
guidelines issue discussed below, but the main concern is that the Bolam + Bolitho test
undermines the art of medicine if there is a certain ‘gold’ standard against which all clinical
decisions will be tested. Medical innovation cannot be expected to flourish where standards are
set by rigid and ossified guidelines. This has flow on effects re impact on medical practice, in
particular defensive medicine. Instead of focusing on how to treat the patient, doctors may just
want to tick the boxes. However, an optimistic response might be that guidelines will only require
medical decisions to be justifiable if they represent a departure from them, and provided they are
justifiable, there will not be an issue.

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