CLINICAL NEGLIGENCE
When people are injured as a result of medical malpractice, this can result in;
Breach of contract
Clinical negligence
NHS Complaints System
Disciplinary action by the GMC
Criminal prosecution
BREACH OF CONTRACT
Contractual issues will emerge where patients go private. Although contracts will vary (identifying
treating doctor or not for example), all contracts in a medical setting will have the following terms which
are implied by law;
S.4 and s.9 Supply of Goods and Services (SOGA) 1982 - medical devices must be of satisfactory
quality (s.4) and be fit for purpose (s.9).
S.13 SOGA - In a contract for the supply of a service where the supplier is acting in the course of a
business, there is an implied term that the supplier will carry out the service with reasonable care and
skill.
This simply codifies the case law pre-1982. For example in Samuels v Davis [1943], where a dentist
undertakes to make a denture for a patient a term is to be implied in the contract that the denture will be
reasonably fit for the purpose for which it is intended. in this case the denture did not fit the patient's
gums therefore was not fit for purpose.
The courts however will be slow to imply a term guaranteeing the outcome of the procedure in the
absence of an express term. The general position is that a doctor would never guarantee the warranty
of a specific result. This was seen in the below case.
Eyre v Measday [1986]
Plaintiff and her husband decided they did not wish to have any more children and the plaintiff
consulted the defendant gynaecologist with a view to undergoing a sterilisation operation. The
defendant explained that the nature of the particular operation he intended to perform, emphasising that
it was irreversible by stating that the operation 'must be regarded as a permanent procedure' but he did
not warn them of the less than 1% risk of the operation being unsuccessful. Consequently the plaintiff
fell pregnant and brought an action against the defendant for damages and breach of contract.
Held that the contract undertaken by the defendant was to carry out a particular type of operation rather
than to render the plaintiff absolutely sterile. Furthermore, the defendant's representations to the
plaintiff about the operation being irreversible did not amount to an express guarantee that the
operation was bound to achieve its acknowledged object of sterilising the patient. The courts would
simply imply that the contract was carried out with reasonable care and skill - they would be slow to
imply a term that the expected results would actually be achieved. After all, it is most unlikely that a
responsible medical man would intend to give a warranty of this nature.
Thake v Maurice [1986]
Plaintiff was not looking to have more children and sought advice from surgeon on getting a vasectomy.
He signed a consent form stating that he consented to undergo the vasectomy operation. Plaintiff later
impregnated his partner and they had a baby girl. They brought an action claiming that their contract
,had been broken when he became fertile again and that they were induced to enter into the contract by
a false warranty that the operation would render the plaintiff sterile. There was no suggestion that the
operation had not been performed properly.
Nourse LJ stated that of all sciences medicine is one of the least exact. In my view a doctor cannot be
objectively regarded as guaranteeing the success of any operation or treatment unless he says as
much in clear and unequivocal terms. The defendant was therefore not in breach of a contract to render
the plaintiff absolutely sterile. The complexity of medical treatment means that anything can happen.
The courts will only be prepared to imply the warranty if the doctor is clear and unequivocal in his terms.
Professional relationships with a client are now regarded as giving rise to a 'concurrent liability' in the
tort of negligence. The contract will carry an obligation to exercise reasonable care. This establishes
the same standard of care as in the tort of negligence.
Under the NHS a contractual relationship does not normally rise between a patient and a doctor
providing their treatment (Reynolds v The Health First Medical Group [2000]). If in a scenario there
is NHS treatment, implied terms do not need to be considered as there is no contract.
MEDICAL NEGLIGENCE: DUTY OF CARE
In order for a successful claim in medical negligence, the claimant must establish the following
essential ingredients;
Duty of care
Breach of that duty
Causation
Each will be considered in detail below.
Proving a duty of care between the patient and doctor is relatively unproblematic - it is usually visible. It
would be absurd for the doctor to claim there is no duty of care. It is an all encompassing duty -
diagnosis, treatment, consent etc. In this area specifically, there are 3 finer points of complexity with the
duty of care;
1.When does the doctor/patient relationship come into being?
We do not owe strangers a duty of care. It is therefore important to clearly pinpoint the moment where
the patient ceases to be a stranger to the doctor. From the case law it can be seen that the relationship
arises in a variety of situations;
Arrival at casualty, even if turned away (Barnett & Darnley).
Acceptance of emergency call by ambulance (Kent).
Provision of information by medical staff (Allin).
Barnett v Chelsea & Kensington Hospital Management Committee [1969]
Mr Barnett went to hospital complaining of sever stomach pains and vomiting. He was seen be a nurse
who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the
morning. Mr Barnett died 5 hours later from arsenic poisoning. Had the doctor examined Mr Barnett at
the time there would have been nothing the doctor could have done to save him.
It was held that since the defendants provided and ran the casualty department to which the deceased
went to, a close and direct relationship existed between him and the hospital and they owed him a duty
to exercise the skill and care expected of a nurse and medical casualty officer. The medical casualty
, officer was negligent in not seeing and not examining the deceased meaning the defendants were in
breach of their duty to Mr Barnett.
This case failed on causation grounds however - the plaintiff had failed to establish that on the balance
of probabilities the defendant's negligence had caused the death.
Darnley v Croydon Health Services NHS Trust [2018]
Mr Darnley went to A&E with a head injury following an assault. After being booked in by a receptionist
he was told that he would have to wait up to 5 hours to be seen. This information was not in fact correct
as patients with head injuries could expect to be seen by a triage nurse within half an hour. Mr Darnley
went home shortly after receiving this information as he felt too unwell to stay. His condition worsened
and he was rushed to hospital in an ambulance about an hour later for the evacuation of a haematoma.
He was left with severe brain damage.
It was accepted that had Mr Darnley been given the correct information he would have stayed at A&E,
would have been there when his condition worsened and would have made a near full recovery.
The Court of Appeal placed a lot of weight on the receptionists being non-clinical staff therefore ruling
that they did not owe Mr Darnley a duty of care.
The Supreme Court overruled this decision, concluding that the receptionist staff owed Mr Darnley a
duty of care at least to not give him misleading information about waiting times. It was stated that a
receptionist in an A&E department cannot, of course, be expected to give medical advice or information
but he or she can be expected to take reasonable care not to provide misleading advice as to the
availability of medical assistance. The standard required is that of an averagely competent and well-
informed person performing the function of a receptionist at a department providing emergency medical
care.
Kent v London Ambulance Service [2000]
The claimant was having an asthma attack. Her doctor attended her home and called for an ambulance
at 16:25. The ambulance, which was only 6 miles away, did not arrive until 17:05. The claimant suffered
respiratory arrest. Two phone calls during this time had been made to enquire why the ambulance had
not arrived and the operator confirmed it was on its way. The doctor gave evidence that had she known
of the delay she would have advised the claimant's husband to drive her to the hospital. The delay was
not due to insufficient resources, which Lord Woolf MR made abundantly clear.
Held that the duty of care lay with the ambulance service as soon as they had been called. The
acceptance of the call was determined by Lord Woolf to establish the duty of care. This duty had been
breached through the delay with no good explanation.
Allin v City & Hackney Health Authority [1996]
Mother was misinformed that her baby had died and did not discover until 6 hours later that the baby
was in fact alive. She claimed she suffered injury as a result of the misinformation and the defendants
had failed to refer her for psychological treatment.
The duty of care also covers the provision of information by medical staff to patients.
2. Besides doctors, who else might owe primary duties of care to patients?
Health Authorities are under a duty to;
Keep hospitals running at a minimum standard; and
When people are injured as a result of medical malpractice, this can result in;
Breach of contract
Clinical negligence
NHS Complaints System
Disciplinary action by the GMC
Criminal prosecution
BREACH OF CONTRACT
Contractual issues will emerge where patients go private. Although contracts will vary (identifying
treating doctor or not for example), all contracts in a medical setting will have the following terms which
are implied by law;
S.4 and s.9 Supply of Goods and Services (SOGA) 1982 - medical devices must be of satisfactory
quality (s.4) and be fit for purpose (s.9).
S.13 SOGA - In a contract for the supply of a service where the supplier is acting in the course of a
business, there is an implied term that the supplier will carry out the service with reasonable care and
skill.
This simply codifies the case law pre-1982. For example in Samuels v Davis [1943], where a dentist
undertakes to make a denture for a patient a term is to be implied in the contract that the denture will be
reasonably fit for the purpose for which it is intended. in this case the denture did not fit the patient's
gums therefore was not fit for purpose.
The courts however will be slow to imply a term guaranteeing the outcome of the procedure in the
absence of an express term. The general position is that a doctor would never guarantee the warranty
of a specific result. This was seen in the below case.
Eyre v Measday [1986]
Plaintiff and her husband decided they did not wish to have any more children and the plaintiff
consulted the defendant gynaecologist with a view to undergoing a sterilisation operation. The
defendant explained that the nature of the particular operation he intended to perform, emphasising that
it was irreversible by stating that the operation 'must be regarded as a permanent procedure' but he did
not warn them of the less than 1% risk of the operation being unsuccessful. Consequently the plaintiff
fell pregnant and brought an action against the defendant for damages and breach of contract.
Held that the contract undertaken by the defendant was to carry out a particular type of operation rather
than to render the plaintiff absolutely sterile. Furthermore, the defendant's representations to the
plaintiff about the operation being irreversible did not amount to an express guarantee that the
operation was bound to achieve its acknowledged object of sterilising the patient. The courts would
simply imply that the contract was carried out with reasonable care and skill - they would be slow to
imply a term that the expected results would actually be achieved. After all, it is most unlikely that a
responsible medical man would intend to give a warranty of this nature.
Thake v Maurice [1986]
Plaintiff was not looking to have more children and sought advice from surgeon on getting a vasectomy.
He signed a consent form stating that he consented to undergo the vasectomy operation. Plaintiff later
impregnated his partner and they had a baby girl. They brought an action claiming that their contract
,had been broken when he became fertile again and that they were induced to enter into the contract by
a false warranty that the operation would render the plaintiff sterile. There was no suggestion that the
operation had not been performed properly.
Nourse LJ stated that of all sciences medicine is one of the least exact. In my view a doctor cannot be
objectively regarded as guaranteeing the success of any operation or treatment unless he says as
much in clear and unequivocal terms. The defendant was therefore not in breach of a contract to render
the plaintiff absolutely sterile. The complexity of medical treatment means that anything can happen.
The courts will only be prepared to imply the warranty if the doctor is clear and unequivocal in his terms.
Professional relationships with a client are now regarded as giving rise to a 'concurrent liability' in the
tort of negligence. The contract will carry an obligation to exercise reasonable care. This establishes
the same standard of care as in the tort of negligence.
Under the NHS a contractual relationship does not normally rise between a patient and a doctor
providing their treatment (Reynolds v The Health First Medical Group [2000]). If in a scenario there
is NHS treatment, implied terms do not need to be considered as there is no contract.
MEDICAL NEGLIGENCE: DUTY OF CARE
In order for a successful claim in medical negligence, the claimant must establish the following
essential ingredients;
Duty of care
Breach of that duty
Causation
Each will be considered in detail below.
Proving a duty of care between the patient and doctor is relatively unproblematic - it is usually visible. It
would be absurd for the doctor to claim there is no duty of care. It is an all encompassing duty -
diagnosis, treatment, consent etc. In this area specifically, there are 3 finer points of complexity with the
duty of care;
1.When does the doctor/patient relationship come into being?
We do not owe strangers a duty of care. It is therefore important to clearly pinpoint the moment where
the patient ceases to be a stranger to the doctor. From the case law it can be seen that the relationship
arises in a variety of situations;
Arrival at casualty, even if turned away (Barnett & Darnley).
Acceptance of emergency call by ambulance (Kent).
Provision of information by medical staff (Allin).
Barnett v Chelsea & Kensington Hospital Management Committee [1969]
Mr Barnett went to hospital complaining of sever stomach pains and vomiting. He was seen be a nurse
who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the
morning. Mr Barnett died 5 hours later from arsenic poisoning. Had the doctor examined Mr Barnett at
the time there would have been nothing the doctor could have done to save him.
It was held that since the defendants provided and ran the casualty department to which the deceased
went to, a close and direct relationship existed between him and the hospital and they owed him a duty
to exercise the skill and care expected of a nurse and medical casualty officer. The medical casualty
, officer was negligent in not seeing and not examining the deceased meaning the defendants were in
breach of their duty to Mr Barnett.
This case failed on causation grounds however - the plaintiff had failed to establish that on the balance
of probabilities the defendant's negligence had caused the death.
Darnley v Croydon Health Services NHS Trust [2018]
Mr Darnley went to A&E with a head injury following an assault. After being booked in by a receptionist
he was told that he would have to wait up to 5 hours to be seen. This information was not in fact correct
as patients with head injuries could expect to be seen by a triage nurse within half an hour. Mr Darnley
went home shortly after receiving this information as he felt too unwell to stay. His condition worsened
and he was rushed to hospital in an ambulance about an hour later for the evacuation of a haematoma.
He was left with severe brain damage.
It was accepted that had Mr Darnley been given the correct information he would have stayed at A&E,
would have been there when his condition worsened and would have made a near full recovery.
The Court of Appeal placed a lot of weight on the receptionists being non-clinical staff therefore ruling
that they did not owe Mr Darnley a duty of care.
The Supreme Court overruled this decision, concluding that the receptionist staff owed Mr Darnley a
duty of care at least to not give him misleading information about waiting times. It was stated that a
receptionist in an A&E department cannot, of course, be expected to give medical advice or information
but he or she can be expected to take reasonable care not to provide misleading advice as to the
availability of medical assistance. The standard required is that of an averagely competent and well-
informed person performing the function of a receptionist at a department providing emergency medical
care.
Kent v London Ambulance Service [2000]
The claimant was having an asthma attack. Her doctor attended her home and called for an ambulance
at 16:25. The ambulance, which was only 6 miles away, did not arrive until 17:05. The claimant suffered
respiratory arrest. Two phone calls during this time had been made to enquire why the ambulance had
not arrived and the operator confirmed it was on its way. The doctor gave evidence that had she known
of the delay she would have advised the claimant's husband to drive her to the hospital. The delay was
not due to insufficient resources, which Lord Woolf MR made abundantly clear.
Held that the duty of care lay with the ambulance service as soon as they had been called. The
acceptance of the call was determined by Lord Woolf to establish the duty of care. This duty had been
breached through the delay with no good explanation.
Allin v City & Hackney Health Authority [1996]
Mother was misinformed that her baby had died and did not discover until 6 hours later that the baby
was in fact alive. She claimed she suffered injury as a result of the misinformation and the defendants
had failed to refer her for psychological treatment.
The duty of care also covers the provision of information by medical staff to patients.
2. Besides doctors, who else might owe primary duties of care to patients?
Health Authorities are under a duty to;
Keep hospitals running at a minimum standard; and
