Negligence

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Negligence

• Duty and Breach
• Prof Orla Sheils

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Duty - Background

• 3 types of action may be brought
• Contract
• Negligence
• Product Liability

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• To maintain a claim in negligence the claimant
  must establish
• A duty of care was owed to him
• The duty was breached
• He suffered injury/harm
• The breach caused the harm

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Definition

• Failure to satisfy the duty of care owed to a
  patient so that reasonably foreseeable damage
  results to the patient.

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• Barnett v Chelsea and Kensington Hospital
  Management Committee 19691QB 428, 19681All ER
  1068(QBD)

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CHILDREN

• Request must come form a responsible adult
  (typically parent could be a local authority).
• The request must be made by someone with legal
  authority to act on the childs behalf to bring
  the doctorpatient relationship into existence.
• Thus the doctor gives an undertaking to the
  parent/agent but the LEGAL DUTY OF CARE is owed
  to the child.

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Incompetent Adults

• Unconscious or mentally impaired.
• In law nobody is authorised to consent for such a
  person.
• Re F (mental patient sterilisation) 19902AC1
  was the first authority by court recognising the
  principle of necessity in the patients best
  interests. Cf Lord Goff having intervened the
  doctor will owe a duty of care. In such cases the
  doctors undertaking suffices for the common law.
• Brandon LJ- more fully states the case for the
  unconscious patient.

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Institutional liability
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Vicarious Liability

• Under common law the employer is vicariously
  liable for the torts of its employees.
• Points that need to be established
• Has the individual committed a tort?
• Is he/she an employee of the institution?
• Did he/she commit the tort in the course of
  his/her employment?

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PRIMARY OR DIRECT LIABILITY

• In addition to vicarious liability the hospital
  may be liable for breach of duty owed directly to
  the patient.

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NEGLIGENCE - BREACH
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• Reasonableness
• The best test for negligence is whether the defs
  conduct was reasonable in the circumstances of
  the case.

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• Standard is not necessarily determined by the
  average conduct of people.
• No matter how competent the defs conduct was on
  average, he is responsible for damage caused by a
  single lapse below the standard of reasonable
  care.

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• Bolam v Friern Hosp Management Cttee 19572 All
  ER 118.
• Test is of the ordinary skilled man in exercising
  and professing to have that special skill.

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Duty to inform

• Siddaway v- Board of Governors of Bethlam Royal
  Hospital and the Maudsley Hospital
• Rogers -v- Whittaker 1992 from Australia
• SEE ALSO CHESTER v AFSHAR 2004- in Negligence
  Causation.

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Moving from Bolam

• In general the fact that a doctor acted in
  keeping with common practice is others is strong
  evidence he has not acted negligently BUT moving
  away from Bolam the Courts have decided that this
  is not conclusive and the FINAL arbiter of a
  reasonable act is the COURT.
• Bolitho v City and Hackney HA 19934MedLR 381.

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• IRISH CONTEXT
• Case Dunne v- NMH 1989, Finlay, Chief Justice
• Fitzpatrick vs White 2007 IESC 51

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Foreseeability of Risk

• If danger could not reasonably be anticipated
  def did not act negligently
• Roe v Min of health- defs not liable for adverse
  reactions to contaminated anaesthetic.

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Magnitude of Risk

• A degree of care commensurate with the risk
  created by the defs conduct is required.
• Magnitude of risk has 2 components
• likelihood the harm will occur
• severity of potential damage

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• Specialists and Inexperienced
• Emergencies

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Further Reading

• Williams- Medical Samaritans Is there a duty to
  treat? (2001)21 Ox. Legal Studies 393 (Lexis)
• Williams - Are Doctors Good Samaritans? (2004)
  71 Medico Legal Journal 165 (Lexis)