2016 ZA/B Question 9 - C
The Gascoigne Area Health Authority seeks your advice in respect of claims in the following circumstances:
(a) Felicity, who died from a rare form of food poisoning after the junior doctor on call at the accident and
emergency department did not attend to examine her. The doctor assumed from the symptoms – vomiting
and weakness – that Felicity had contracted a mild virus, and simply needed rest and plenty of fluid.
(b) Brent, a long term patient undergoing plastic surgery treatment for scarring during a fire, who claims that he
was not advised of the risk that he might suffer severe depression as a result of a reaction to drugs used
during surgery. Expert evidence indicates that the risk of depression in such circumstances is 15%.
(c) A senior doctor who failed to carry out a standard procedure on Peter, an ailing elderly male, who eventually
died. The doctor claimed that the alternative procedure he deployed was considered by several in the
medical profession to be a highly effective – albeit relatively new – form of treatment.
In advising Gascoigne Area Health Authority (GAHA), F, B, P would bring action against GAHA under vicariously
liability for the tort committed by the doctors. In order for action to be successful. F, B, P will first need to
establish the tort of negligence against doctors. According to Lochgelly Iron v Mc Mullan, parties will need to
prove on a balance of probabilities that there is an existing duty of care and the doctors breached it, causing
some damage to them and the damage is not to remote.
Frist issue whether the defendant owes a duty of care to claimants?
F B and P’s claim
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. Is no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
Applying to the fact, following precedent duty of care is owed by the doctor to patient. Thus, duty of care
establishes.
Second issue whether the defendant breach the duty of care to claimant?
This will be based on whether they will be judged based on the reasonable man standard (Blyth v Birmingham
Waterworks) or professional body standard (Bolam v Friern Hospital Management Committee). It is clear from
the fact as doctor, professional body standard will apply. In Wilsher v Essex AHA court states personal attributes
and experience of the defendant are generally disregard in negligence claims, if doctor does not have the
requisite degree of skill for the role in which they are acting, the employer (ie. hospital) will be liable for putting
the employee (ie. doctor) in a position that was too advanced for their abilities. Unless, the doctor missed key
symptoms of patient then he found to be in breach of duty.
Professional body judged by the std of ordinary skilled man exercising and professing to have that particular
skill, hence professional man judge by his peers. In Bolam v Friern Hospital Management Committee, court
state a medical practitioner is not guilty of negligence if he has acted in accordance with acceptable practice
endorsed by a reasonable, respectable and responsible school of thought within his profession. Regardless of
presence of opinions to contrary because there will always be genuine difference of opinion and practice within
any given profession, there is seldom one answer. Even judge prefer one opinion over the other but this is not
sufficient to establish negligence.
However, in Bolitho v City of Hackney Health Authority court states a doctor does not escape liability by merely
forwarding evidence by a number of experts who claim to represent a reasonable, respectable and responsible
school of thought. A reasonable, respectable and responsible school of though is one whose views are capable
of logical analysis. Bolam test was not end all test, that the court reserved their right to look beyond it by actively
assessing into justification of the defendant doctor’s practice, based on a logical analysis of why such an opinion
was formed, as well as a risk analysis against competing options. This approach allows judges to choose between
two different bodies of opinion if they feel that one of them is not logically defensible. However, his lordship
highlighter that expect evidence will rarely be considered unreasonable.
, In Sidaway v Board of Governors of Bethlem Royal Hospital, C underwent spinal surgery that carries a less than
1% risk of spinal damage, even if the surgery was properly performed. The C was not informed of this risk, the
risk materialised and the C suffered damage to her spinal cord. HOL held surgeon was not neg in failing to
disclose the minor risk of spinal damage. Bolam test should be applied not only to diagnosis and treatment but
disclosure of risk. HOL held mental competent adult patient had the absolute right to refuse consent to medical
treatment, regardless of how irrational or detrimental that may be. However, where the patient has not asked
as to the risk involved in treatment, a doctor is not under a duty to voluntarily disclose unsought information
about any such risk. To decide what risks the patient should be voluntarily warned having regard to the effect
of the warning, as much an exercise of professional skill and judgement as any other part of doctor’s
comprehensive duty of care to the individual patient, and expect medical evidence on this matter should be
treated in just the same way.
However, over the year, the rest has lost some of its influence notably in cases involving duty of disclosure.
In Chester v Afshar, C suffered from chronic back pain, consulted the D, an eminent neurosurgeon and was
advised to undergo spinal surgery. Despite her queries, he failed to inform her of a 1%-2% risk of spinal damage.
The risk materialised and the C sued D for pain and disability as he’s failure to disclose the risk. HOL held prima
facie a patient has the right to be informed of a well-established risk of serious harm regardless of how small it
is.
In Montgomery v Lanarkshire Health Board the landmark case confirming the patient’s right to decide what
risks to her health she is willing to take. A doctor owes a duty to make sure his patient is aware of all material
risk inherent (any risk which reasonable person in the patient’s position or doctor is aware that the patient would
likely attach significance to it) in proposed treatment and of any reasonable alternative or variant treatment.
F’s claim
Applying Wilsher to the fact, junior doctor attend F will disregard, the question will be whether the doctor has
put in too advance position or doctor missed key symptoms (ie. vomiting and weakness).
Applying Bolam and Bolitho, the doctor needs to prove that his assumption on symptoms and failure to attend
the patient is acceptable practice endorsed by a reasonable, respectable and responsible school of thought
within medical professional and show failure to attend has logical analysis of why such an opinion was formed,
as well as a risk analysis against competing options. Thus, high likely doctor is in breach of duty.
B’s claim
Applying Sidaway, doctor may not neg in failing to disclose the risk depression as a result of a reaction to drugs
used during surgery since B has not asked as to the risk involved in treatment, thus doctor is not under a duty
to voluntarily disclose unsought information about any such risk. Applying Bolam test, doctor only need to prove
risk of depression shall not be voluntarily warned having regard to the effect of the warning, as much an exercise
of professional skill and judgement as any other part of doctor’s comprehensive duty of care to the individual
patient, and expect medical evidence on this matter should be treated in just the same way.
Applying Chester, prima facie a patient has the right to be informed of a well-established risk of serious harm
regardless of how small it is, thus doctor should have informed the risk of depression regardless 15% or less.
Applying Montgomery, although B’s doctor would to argue that he is not aware that B would likely attach
significance to the proposed treatment, he still owes a duty to make sure B is aware of all material risk inherent
where any risk which reasonable person in the patient’s position would likely attach significance to proposed
treatment and of any reasonable alternative or variant treatment. Thus doctor breach his duty to disclosure risk
to B.
P’s claim
In, Grimstone v Epsom and St Helier University Hospitals NHST, claimant alleged that lack of informed consent
in the choice of a hip operation. It appears that the claimant does not say she asked about alternative methods
of hip replacement, rather she argues that the Professor should have made her aware of the lack of data for the
The Gascoigne Area Health Authority seeks your advice in respect of claims in the following circumstances:
(a) Felicity, who died from a rare form of food poisoning after the junior doctor on call at the accident and
emergency department did not attend to examine her. The doctor assumed from the symptoms – vomiting
and weakness – that Felicity had contracted a mild virus, and simply needed rest and plenty of fluid.
(b) Brent, a long term patient undergoing plastic surgery treatment for scarring during a fire, who claims that he
was not advised of the risk that he might suffer severe depression as a result of a reaction to drugs used
during surgery. Expert evidence indicates that the risk of depression in such circumstances is 15%.
(c) A senior doctor who failed to carry out a standard procedure on Peter, an ailing elderly male, who eventually
died. The doctor claimed that the alternative procedure he deployed was considered by several in the
medical profession to be a highly effective – albeit relatively new – form of treatment.
In advising Gascoigne Area Health Authority (GAHA), F, B, P would bring action against GAHA under vicariously
liability for the tort committed by the doctors. In order for action to be successful. F, B, P will first need to
establish the tort of negligence against doctors. According to Lochgelly Iron v Mc Mullan, parties will need to
prove on a balance of probabilities that there is an existing duty of care and the doctors breached it, causing
some damage to them and the damage is not to remote.
Frist issue whether the defendant owes a duty of care to claimants?
F B and P’s claim
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. Is no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
Applying to the fact, following precedent duty of care is owed by the doctor to patient. Thus, duty of care
establishes.
Second issue whether the defendant breach the duty of care to claimant?
This will be based on whether they will be judged based on the reasonable man standard (Blyth v Birmingham
Waterworks) or professional body standard (Bolam v Friern Hospital Management Committee). It is clear from
the fact as doctor, professional body standard will apply. In Wilsher v Essex AHA court states personal attributes
and experience of the defendant are generally disregard in negligence claims, if doctor does not have the
requisite degree of skill for the role in which they are acting, the employer (ie. hospital) will be liable for putting
the employee (ie. doctor) in a position that was too advanced for their abilities. Unless, the doctor missed key
symptoms of patient then he found to be in breach of duty.
Professional body judged by the std of ordinary skilled man exercising and professing to have that particular
skill, hence professional man judge by his peers. In Bolam v Friern Hospital Management Committee, court
state a medical practitioner is not guilty of negligence if he has acted in accordance with acceptable practice
endorsed by a reasonable, respectable and responsible school of thought within his profession. Regardless of
presence of opinions to contrary because there will always be genuine difference of opinion and practice within
any given profession, there is seldom one answer. Even judge prefer one opinion over the other but this is not
sufficient to establish negligence.
However, in Bolitho v City of Hackney Health Authority court states a doctor does not escape liability by merely
forwarding evidence by a number of experts who claim to represent a reasonable, respectable and responsible
school of thought. A reasonable, respectable and responsible school of though is one whose views are capable
of logical analysis. Bolam test was not end all test, that the court reserved their right to look beyond it by actively
assessing into justification of the defendant doctor’s practice, based on a logical analysis of why such an opinion
was formed, as well as a risk analysis against competing options. This approach allows judges to choose between
two different bodies of opinion if they feel that one of them is not logically defensible. However, his lordship
highlighter that expect evidence will rarely be considered unreasonable.
, In Sidaway v Board of Governors of Bethlem Royal Hospital, C underwent spinal surgery that carries a less than
1% risk of spinal damage, even if the surgery was properly performed. The C was not informed of this risk, the
risk materialised and the C suffered damage to her spinal cord. HOL held surgeon was not neg in failing to
disclose the minor risk of spinal damage. Bolam test should be applied not only to diagnosis and treatment but
disclosure of risk. HOL held mental competent adult patient had the absolute right to refuse consent to medical
treatment, regardless of how irrational or detrimental that may be. However, where the patient has not asked
as to the risk involved in treatment, a doctor is not under a duty to voluntarily disclose unsought information
about any such risk. To decide what risks the patient should be voluntarily warned having regard to the effect
of the warning, as much an exercise of professional skill and judgement as any other part of doctor’s
comprehensive duty of care to the individual patient, and expect medical evidence on this matter should be
treated in just the same way.
However, over the year, the rest has lost some of its influence notably in cases involving duty of disclosure.
In Chester v Afshar, C suffered from chronic back pain, consulted the D, an eminent neurosurgeon and was
advised to undergo spinal surgery. Despite her queries, he failed to inform her of a 1%-2% risk of spinal damage.
The risk materialised and the C sued D for pain and disability as he’s failure to disclose the risk. HOL held prima
facie a patient has the right to be informed of a well-established risk of serious harm regardless of how small it
is.
In Montgomery v Lanarkshire Health Board the landmark case confirming the patient’s right to decide what
risks to her health she is willing to take. A doctor owes a duty to make sure his patient is aware of all material
risk inherent (any risk which reasonable person in the patient’s position or doctor is aware that the patient would
likely attach significance to it) in proposed treatment and of any reasonable alternative or variant treatment.
F’s claim
Applying Wilsher to the fact, junior doctor attend F will disregard, the question will be whether the doctor has
put in too advance position or doctor missed key symptoms (ie. vomiting and weakness).
Applying Bolam and Bolitho, the doctor needs to prove that his assumption on symptoms and failure to attend
the patient is acceptable practice endorsed by a reasonable, respectable and responsible school of thought
within medical professional and show failure to attend has logical analysis of why such an opinion was formed,
as well as a risk analysis against competing options. Thus, high likely doctor is in breach of duty.
B’s claim
Applying Sidaway, doctor may not neg in failing to disclose the risk depression as a result of a reaction to drugs
used during surgery since B has not asked as to the risk involved in treatment, thus doctor is not under a duty
to voluntarily disclose unsought information about any such risk. Applying Bolam test, doctor only need to prove
risk of depression shall not be voluntarily warned having regard to the effect of the warning, as much an exercise
of professional skill and judgement as any other part of doctor’s comprehensive duty of care to the individual
patient, and expect medical evidence on this matter should be treated in just the same way.
Applying Chester, prima facie a patient has the right to be informed of a well-established risk of serious harm
regardless of how small it is, thus doctor should have informed the risk of depression regardless 15% or less.
Applying Montgomery, although B’s doctor would to argue that he is not aware that B would likely attach
significance to the proposed treatment, he still owes a duty to make sure B is aware of all material risk inherent
where any risk which reasonable person in the patient’s position would likely attach significance to proposed
treatment and of any reasonable alternative or variant treatment. Thus doctor breach his duty to disclosure risk
to B.
P’s claim
In, Grimstone v Epsom and St Helier University Hospitals NHST, claimant alleged that lack of informed consent
in the choice of a hip operation. It appears that the claimant does not say she asked about alternative methods
of hip replacement, rather she argues that the Professor should have made her aware of the lack of data for the
