- The special care baby unit at Memorial NHS Trust had recently suffered a flood and two of the incubators had been severely damaged leaving only one available for an emergency. Sharon and Felicity went into labour and were admitted to Memorial NHS Trust. Owing to sickness leave, there were only two midwives on duty on the maternity ward and they had to tend to three other women who were also in the process of giving birth. Sharon gave birth to a girl whom she named Anna. Anna was suffering from slight jaundice but was otherwise well. After a difficult labour, Felicity also gave birth to a girl whom she named Bea. After a while, Bea who had been born prematurely began to suffer from breathing difficulties. One of the midwives, Jen, called the doctor on duty, Dr X, to attend. Dr X who at that moment was busy examining Anna came at once. He managed to clear Bea’s airways and her condition stabilized. In the confusion, Dr X left Anna’s notes by Bea’s cot. Dr X formed the opinion that Bea should be taken immediately to the special care baby unit where her condition could be closely monitored. However, as he had only been working at the hospital for a short time, he called the consultant on duty, Mr. Y for his advice and then went to attend to another patient. When he arrived on the ward, Mr. Y, who had not seen either baby before, walked over to Bea’s cot and picked up Anna’s notes (which had been left there by mistake). Aware of the shortage of incubators, and after reading Anna’s notes, Mr. Y advised that this baby (Bea) could be sent home and treated by her GP. Mr. Y then went over to Anna’s cot and wrongly assuming that Anna was the baby with the breathing difficulties, he advised that she be placed in the one available incubator. Mr. Y was irritated that he had been called to the ward. He was in a rush and did not bother to examine either child, relying only on the written notes left by Dr X. Meanwhile, both Jen and Dr X were attending to other patients and nobody realized that the notes had been mixed up. Despite Felicity’s protests, Bea was sent home and told to go to her GP and Anna was transferred to the baby care unit. Unfortunately, Bea suffered from further breathing difficulties when she arrived home and as a consequence is now left with permanent brain damage.
- In another ward of the same hospital, Rupert aged 10, was suffering from leukemia and suffered seizures. His condition deteriorated rapidly and because of his fragility, the doctors treating Rupert have made a decision that artificial ventilation will not be given should he suffer another seizure. Rupert’s family who are deeply religious disagree with the doctor’s opinions and fiercely oppose their decision.
Advise Felicity on whether and against whom she can bring any legal action in respect of Bea and advise all the parties on the legal position in respect of Rupert’s treatment.
i) Tort of Negligence:
Elements – Duty of Care:
The elements of negligence are duty of care; breach of that duty of care; causation, i.e. a causal link between the individual’s injury or property damage; and actual damage either to a person or to property. Each of these elements are essential to a successful claim under the law of tort, however the first step is to consider whether there is a duty of care between the injured person and the person whose actions have caused it. There are two branches of duty of care, those duties recognised by law and those inferred by the circumstances. In cases where no duty of care has been imposed by law the test of the foreseeable claimant is used; whereby “the duty is not owed to the world at large (as a duty in criminal law would be), but only to an individual within the scope of the risk created, that is to the foreseeable victim”. The cases that are essential to understanding this concept are Palsgraff v Long Island Railroad Co, Hay or Bourhill v Young; Caparo v Dickman; Hill v Chief Constable of West Yorkshire; and Osman v UK. These cases have formulated the modern understanding of duty of care, the Palsgraff Case set forth the notion that an individual should not be responsible for unforeseeable circumstances of their actions and in such cases a duty will not be enforced, i.e. if the individual that was injured is not in a foreseeable set of people that may be affected by the plaintiff actions, then there is no duty of care. In the case of Bourhill this principle was re-affirmed, where a passer-by’s injuries was not reasonably foreseeable in a collision; whereas the occupants in the car that was collided with would be. The case of Caparo set forth the modern test for the duty of care which is a three pronged test that follows from the principles in Palsgraff and Bourhill. This test comprises of foreseeability, proximity and fairness, justice and reasonableness of recognising such a duty. Foreseeability is the notion as set forth by Bourhill; proximity is the relationship between the foreseeability; the two individuals; and the fairness of such a duty; and the fairness, justice and reasonableness test is used to limit for public policy reasons liability, i.e. keeping the floodgates closed. This seems to be the situation that was created in the case of Hill; whereby if police were found negligent by not apprehending criminals earlier then the floodgates would be opened and police investigation highly hampered. The final case that has to be considered is Osman which took the law of negligence to the European Court of Human Rights (ECtHR) in respect to duty of care and the immunity of police officers from liability under Hill. The ECtHR found that the immunity was in violation of Article 6(1), the right to a fair hearing; therefore each situation needs to be given a fair hearing and proximity and foreseeability need to be properly considered; therefore in the case of Barrett v London Borough of Enfield it was concluded that such striking-out practices can no longer be taken, rather fairness and justice need to be decided on the elements of each case.
Elements – Breach of Duty and Reasonable Care:
Once the duty of care has been considered and approved there needs to be a breach of that duty, which has been traditionally defined as:
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or do something which a reasonable prudent man would not do.
In the case of the reasonable person it was found that any action that has been taken, would take reasonable care to prevent injuries to persons that could be foreseeable claimants, i.e. it does not matter if the action has never occurred before the possibility of such an action requires that the reasonable person take reasonable care. If a person has not taken reasonable care then they would be in breach of their duty to any foreseeable claimant in any case where there is more than a far-fetched possibility of injury
The next part of this element that needs to be discussed is the concept of reasonable care in respect to the reasonable person’s opportunity to discharge their duty of care, i.e. as long as al precautions are taken to limit injury or harm then duty is discharged, even in cases where an omission causes the harm reasonable steps have to be taken or a duty of care is owed – this includes ensuring that reasonable care is taken to prevent intervening actors do not cause harm However this duty of care differs for different levels of experience, i.e. the inexperienced must take objective reasonable care, but if the person who is injured knows that the individual is not properly experienced and accepts this then damages will be reduced because of contributory negligence If the person is physically or mentally incapable and this state is unknown to the individual then the standard of care is satisfied, i.e. automatism. In respect to children the standard of care is the reasonable child and a skilled professional the standard of care is from a skilled professional of their specific trade, e.g. a reasonable doctor.
Elements – Causation and Remoteness
The final areas of negligence that have to be considered are causation and remoteness. Causation is determined by the but-for test whereby:
But-for causation is established on the balance of probabilities: if it is more likely than not that an event was the cause, it is treated as if it were the cause.
The first notion of causation is direct, i.e. the injury is ultimately caused by the actions set off by the defendant, i.e. there is no intervening act that ultimately caused the injury or the act would have occurred anyway even without the defendant’s negligence. The other forms of causation are alternative and cumulative causation, i.e. if there is alternate cause then there is no liability and cumulative causation is the continuous acts of negligence add up to personal injury and liability if reasonable care has not been taken to reduce the potential harm. Finally there is the concept of multiple causes; whereby the initial negligence causes harm; however an additional act from a different party causes further harm. In this case both individual’s are liable; the second because the defendant must take the victim as they are found and take appropriate care.
The final element is remoteness of damage, which is dealt with by the Wagon Mound Test and re-affirmed in Cambridge Water that the damage has to be reasonably foreseeable, i.e. it does not have to be the direct cause but the result of a series of actions that were set in motion by the defendant’s negligent act.
This section is briefly going to consider the remedies and defences to negligence. The defences include; that the plaintiff had knowledge of the risk; that the defendant had impliedly accepted the risk; that the plaintiff’s action contributed to the negligence; that there was an exclusion of liability; that the plaintiff was acting illegally, either alone or jointly with the defendant; or there was an intervening act (novus actus interveniens).
Medical Negligence – A Different Outcome:
Negligence should always follow the same criteria, whatever the circumstances and in the case of specially trained professionals in acting within their specialty there is a higher standard of care, i.e. a Doctor practicing medicine is judged against a reasonable doctor. Yet in the area of medical law it has been very hard to prove negligence except in extreme cases. This seems to be due to the court’s reluctance to find doctor’s negligent for mistakes unless they are gross mistakes. The case of Penny and Others v East Kent HA is an example where screeners of cervical smears are only negligent when they do not spot the obvious signs of cancer. In N v Agrawal it was held that the inadequate reporting of a doctor about a rape examination was not negligent because there was no duty of care, i.e. no patient/doctor relationship. This raises the question when is there a doctor/patient relationship? Is this only when there is a long standing relationship? The case of Derry v Ministry of Defence is another example of giving immunity to negligent doctors; in this case the negligent misdiagnosis of cancer was covered by crown immunity. There are certain acts of negligence that cannot be covered when they are so gross and the line of causation has been directly linked to the original cause; also one more party can be held negligent.
Advice to Felicity:
The consequence of Bea’s condition may be a case of negligence; the question arises if all the factors of negligence are present. There will be an added problem of whether there is a doctor/patient duty of care. Felicity will find it possible to sue for any of the pain, suffering and nervous shock caused by acts as the case of North Glamorgan NHS Trust v Walters has held as long as the negligence to her baby was so severe that there was an obvious causal link to Felicity’s state. This case would most likely find that there is a patient/doctor relationship between the Doctor and the Consultant. The question arises whether the doctor was negligent by leaving the wrong notes by Bea’s bed; however is it not reasonable for the consultant to properly look over the notes and ascertain if it was the right patient especially when a doctor called with an emergency. The actions of the doctor do owe a duty of care and it is reasonably foreseeable that if the wrong notes were left then a misdiagnosis would occur and the consequences of this action were reasonably foreseeable because this was his diagnosis if the baby was not put on a ventilator. Therefore making a causal link to Bea’s condition; however would this be gross negligence in the courts because of a mistake? In the light of North Glamorgan the answer would be yes because these actions has brain damaged a baby if the mix up of the charts had not occurred; however the consultant probably would be classed as a contributor of the negligence because if he was called down for a baby with breathing difficulties and the baby was in perfect condition would this not raise alarm bells that a possible mix-up had occurred? Added to this Felicity protested that there was something wrong with her baby and no one bothered to re-evaluate resulting a most likely successful negligent suit for Bea’s condition and any nervous shock that Felicity suffered according to North Glamorgan.
ii) Right to Life & Consent:
The question to the right to life is raised here and consent to treatment or withdrawal of treatment. This discussion is briefly going to consider the right to life and then discuss the nature of consent in treatment. The right to life is a basic right contained within the ECHR and it should not be breached. The question with medical law is whether life has been terminated. This leads to questions when doctor’s refuse to treat patients whether it is a case of a wrongful death suit or does the refusal of treatment fall within the guidelines of artificially reviving a life that for all uncertain terms is dead. The case of Re J states that if revival will subject the child to further pain and a torturous non-life then revival should not occur. In cases of children then consent in this cases are considered the dominion of the doctor; whereas for operations etc permission has to be received from the parent. The nature of consent in this case for the child is similar to those patients under the mental health act, with exception if the child would survive the revival and not be in the scenario states by Re J. The problem with this is that is acts from the presumption that there are no human rights and doctors can treat severely ill children as they wish. This seems to be direct contravention of inherent human rights, because if the child was not severely ill treatment without consent would be regarded as degrading treatment at the worst and breach of a person’s physical integrity at best; but in this case will most likely result in the termination of the child’s life. bThe common law approach follows this approach as well, in F v West Berkshire Health Authority it was held if a person lacks capacity to give consent then the doctor may do as he or she deems fit. Yet if the scenario of Re J is not satisfied then the parents may have a successful wrongful death or negligence suit if Rupert is not revived. In truth it should be the parent’s decision if they want the child revived even if it means the child is severely handicapped. Yet English law and even the ECHR support the view that the doctor’s are the best to determine when treatment can be administered or withdrawn in cases where consent is not possible.
Bender, 1988, A feminist’s primer on feminist theory and tort, 38 J Leg Ed 3
Grubb, 2004, Principles of Medical Law 2nd Edition, Oxford University Press
Hewitt, 2004, Between Necessity and Chance, NLJ 154(7124)
Lunney & Oliphant, 2000, Tort Law: Text & Materials, Oxford Uni Press
Mahendra, 1998, Unto the Breach, The Practioner, in the NLJ 148(6857)
NHS, Section 12(2) of MHA 1983 Website, can be found at://www.guideweb.org.uk/section12/section121.html
Percy Commission, 1957 Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency Cmnd 169 1954-1957
Prosser & Keeton, 1999, The law of Tort 5th Edition, West Law
Sandland & Bartlett, 2003, Mental Health Law: Policy and Practice, Oxford