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Tort XII - Breach of Duty of Care IV

Updated on August 16, 2017

In Bolitho v City & Hackney Health Authority (1997) a 2-year-old child was admitted for serious brain damage and at the time of admission the hospital staff in attendance paged the doctor but because her pager was faulty the doctor was unable to attend to the child and the child died as a result of respiratory failure.

The mother brought an action in negligence against the hospital contending that, had the child been intubated the child would have survived. The doctor argued that even if she had attended to the case she would not have had the child intubated and her decision was supported by other doctors. The court in line with Bolam v Friern Barnet Hospital Management Committee (1957) found in favor in of the doctor in that as long as there is a professional school of thought that concurs or agrees with the treatment that was administered then the courts would not impose any liability on the doctor.

Under most circumstances or in most instances it is difficult to succeed in a negligence claim against a medical practitioner or a doctor or a surgeon unless the negligent act was glaringly or blatantly obvious like in the case of Mahon v Osborne (1939) because in the interest of public policy doctors are allowed to take a certain amount of risk and as long as the risk is justifiable they won’t be held liable.

The flexibility granted to medical professionals however does not extend to nurses or researchers. In Wisniewski v Central Manchester Health Authority (1998) the defendant a midwife failed to show the doctor the results of a scan which indicated that the child the mother was carrying had some complications and as a result the child was born with cerebral palsy. The defendant was held to be liable.

In Newman & others v United Kingdom Medical Research Council (1996) almost 2,000 children who suffered from growth disorders were treated with human growth hormones and as a result many of them died from Creutzfeldt-Jakob disease (CJD), a rare, degenerative, invariably fatal brain disorder, which affects about 1 in a million worldwide. The researchers were held to be liable and experiments should have ceased or stopped the moment the researchers realized that the treatment was fatal.

On that note, it has to be said that there have been calls in the past to disallow pharmaceutical companies from conducting research in third world countries to develop new drugs or cures because there has been a high rate of infant or young fatalities as a result of these experiments and while pharmaceutical companies are more than welcome to sell their products overseas after it has been approved by the relevant authorities at home, they should not be allowed to conduct medical research or experiments abroad unless the ailment or disease is peculiar to a specific location or locality.

It is also worth adding that the duty that is imposed on junior doctors is the same as that which is imposed on ordinarily skilled doctors. In Wilsher v Essex Area Health Authority (1988) a premature baby was given too much oxygen by a junior doctor and as result the baby suffered from a condition which affected his retina and rendered him blind. The parents sued and the court held that a junior doctor is under the same duty as any other competent doctor and found for the parents.

In Mansfield v Weetabix (1997) the defendant crashed his lorry into the plaintiff’s shop and the plaintiff sued for the resulting damage. The defendant though unknown to him at the time suffered from pancreatic tumor which resulted in hypoglycemia. It was held that the standard that was imposed on the defendant was that of the ordinary and competent driver and it was found that the defendant had complied with the standard and therefore he was not liable. To do otherwise would be to impose strict liability.

It’s worth comparing the decision in Mansfield v Weetabix (1997) with the decisions in Nettleship v Weston (1971) and Roberts v Ramsbottom (1980). In Nettleship v Weston (1971) it is fairly obvious that the defendant did not display the skill of an ordinary competent driver and in Roberts v Ramsbottom (1980) it is possible to argue that a reasonable man, as soon as he realized, that he had chest pains would have immediately stopped his car because at the time the defendant suffered the stroke he still retained some degree or measure of control of his car (partial control).

The same can be said for those who are struck with hypoglycemia but it could be a matter of the time that lapsed between when the defendant is struck by the illness and when he or she experiences its affects.

There appears to be a gradual build up to a stroke during which time the defendant could have stopped his car or still retained some control of his car. With hypoglycemia, the impact of the condition appears to be sudden and the defendant may not have had time to stop his lorry but according to the facts in Mansfield v Weetabix (1997) the defendant was involved in two prior accidents, albeit minor, on the same day. It could be that the defendant in Mansfield v Weetabix (1997) was not aware of his condition while the defendant in Roberts v Ramsbottom (1980) might have been aware that he suffered from a heart condition. A lot depends on the facts.

As for Marshall v Osmond (1983) it does not come into the equation in this particular instance because the defendant had displayed the skills of an ordinary and competent driver and there is also a public policy aspect to the case in that the plaintiff was a passenger in a stolen car seeking to escape the police and it may have been the only way the defendant could have stopped him. To do otherwise might have posed a greater danger to the public.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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