Professional and clinical negligence
Professional negligence = negligence within professional sphere
o E.g. activities of accountants, lawyers, surveyors or architects
Clinical negligence = negligence within medical professions and services
o Inc. nurses, dentists, pharmacists, physiotherapists, ambulance
services
Main difference from normal negligence = establishing if particular
professional duty of care has been breached
Functions of malpractice litigation
1. Accountability
2. High standards
3. Justifications when procedures go wrong
4. Compensation
5. Retribution
Structure
1. Parties
2. Loss
3. DoC
4. Breach
5. Causation
6. Remoteness
7. Defences
Answer structure
1. Main claims against doctors
2. Primary claims against hospital (primary negligence) – together
3. Vicarious claims against hospital (vicariously for torts of doctors) –
together
1
, Duty of Care
Professional/client relationship = contractual relationship = DoC (Stansbie v Troman)
All healthcare professionals owe patients DoC to exercise reasonable care
and skill once they accept patient for treatment (Cassidy v Ministry of
Health)
o Medical professionals do not owe DoC where no direct
relationship, e.g. where providing advice for occupational health
report (Kapfunde v Abbey National plc)
Duty of care to write clearly (legibly) for purpose of prescriptions
(Prendergast v Sam & Dee Ltd)
o Incorrect dispensing of a drug because doctor’s handwriting could
not be deciphered – 25% doctor liability; 75% pharmacist
Health authorities/trusts/hospitals have DoC to patients (Bull v Devon)
DoC of solicitor to client (Ross v Caunters)
Breach of duty of care
Facts – Bolam v Friern Hospital Management Committee
C required treatment for depression
Two bodies of medical opinion as to electro-convulsive therapy
o Relaxant drugs
o No drugs
Fracture of C’s pelvis as no drugs used
Bolam test
1. Standard of care = standard of a reasonable, competent professional X
(Bolam v Friern Hospital Management Committee)
o As established in Wilsher v Essex AHA, the (lack of) experience of D
will not raise / lower the standard of care owed, as the standard is
objective, attaching to the act and not the actor (catheter into vein
rather than artery leading, it is argued, to blindness))
o Trainees may not be in breach if they seek advice from more
senior colleague (as in Wilsher), where liability falls on more
senior colleague
o Health authority may be liable where puts a junior doctor in a
situation with little / no supervision (Bull and another v Devon
AHA)
2
Professional negligence = negligence within professional sphere
o E.g. activities of accountants, lawyers, surveyors or architects
Clinical negligence = negligence within medical professions and services
o Inc. nurses, dentists, pharmacists, physiotherapists, ambulance
services
Main difference from normal negligence = establishing if particular
professional duty of care has been breached
Functions of malpractice litigation
1. Accountability
2. High standards
3. Justifications when procedures go wrong
4. Compensation
5. Retribution
Structure
1. Parties
2. Loss
3. DoC
4. Breach
5. Causation
6. Remoteness
7. Defences
Answer structure
1. Main claims against doctors
2. Primary claims against hospital (primary negligence) – together
3. Vicarious claims against hospital (vicariously for torts of doctors) –
together
1
, Duty of Care
Professional/client relationship = contractual relationship = DoC (Stansbie v Troman)
All healthcare professionals owe patients DoC to exercise reasonable care
and skill once they accept patient for treatment (Cassidy v Ministry of
Health)
o Medical professionals do not owe DoC where no direct
relationship, e.g. where providing advice for occupational health
report (Kapfunde v Abbey National plc)
Duty of care to write clearly (legibly) for purpose of prescriptions
(Prendergast v Sam & Dee Ltd)
o Incorrect dispensing of a drug because doctor’s handwriting could
not be deciphered – 25% doctor liability; 75% pharmacist
Health authorities/trusts/hospitals have DoC to patients (Bull v Devon)
DoC of solicitor to client (Ross v Caunters)
Breach of duty of care
Facts – Bolam v Friern Hospital Management Committee
C required treatment for depression
Two bodies of medical opinion as to electro-convulsive therapy
o Relaxant drugs
o No drugs
Fracture of C’s pelvis as no drugs used
Bolam test
1. Standard of care = standard of a reasonable, competent professional X
(Bolam v Friern Hospital Management Committee)
o As established in Wilsher v Essex AHA, the (lack of) experience of D
will not raise / lower the standard of care owed, as the standard is
objective, attaching to the act and not the actor (catheter into vein
rather than artery leading, it is argued, to blindness))
o Trainees may not be in breach if they seek advice from more
senior colleague (as in Wilsher), where liability falls on more
senior colleague
o Health authority may be liable where puts a junior doctor in a
situation with little / no supervision (Bull and another v Devon
AHA)
2
