Photo by Piron Guillaume on Unsplash
You go in to hospital for a cystoscopy (a medical procedure involving the bladder) but you end up being circumcised. It sounds like a very, very bad joke, but sadly all too true as a recent report on Sky News confirms.
Medical negligence? Almost certainly. The victim receives £20,000 in compensation from the hospital in question.
This story has provided an opportunity to review the law on medical negligence.
Doctors and other medical practitioners are deemed to possess special skill, knowledge or expertise. When carrying out medical services, they owe a duty of care (see Donoghue v Stevenson [1932] SC (HL) 31) to their patients.
In cases of alleged medical negligence, the courts will judge a doctor according to the standard that is expected of a member of that profession, for example, a supposedly competent physician.
That said, however, in the area of medical negligence, particularly, the courts have accepted that members of the profession may have different opinions about how best to treat patients. One doctor may apply a particular procedure in order to treat a patient, whereas another doctor may rely on a completely different course of treatment. Both approaches to patient treatment are perfectly valid – so long as they are based on sound scientific and empirical evidence.
In Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582, the House of Lords decided to give doctors and by extension other professions a certain amount of leeway to determine their own professional rules. A doctor would not be negligent if he used a medical procedure which was accepted as being a proper procedure by a responsible body of doctors who are skilled in a particular field of medicine.
The rule in Bolam was slightly finessed by a later decision of the House of Lords in Bolitho v City & Hackney Health Authority [1997] 3 WLR 1151. Lord Wilberforce stated the Bolam test was still the correct one to apply. However, doctors could not expect to escape liability for negligence by pointing out that their decision was backed by accepted medical procedures. A court would have to be certain that these procedures and the opinions of medical experts were reasonable. However, the fact that many medical experts backed a particular procedure would often be taken to mean that the doctor had behaved reasonably by relying on the procedure in the question. Only rarely would a court be entitled to reject the views of a body of medical experts.
In Hunter v Hanley 1955 SC 200, one of the most famous medical negligence cases, the Inner House of the Court of Session had to consider whether a doctor had fallen below the requisite standard of care and was, therefore, liable for the injuries suffered by the pursuer (the claimant).
In that case, Lord President Clyde established the following test for medical negligence claims:
- The pursuer must show that there is a usual and normal [medical] practice;
- The pursuer must show that the defender failed to follow or adopt this practice; and
- The pursuer (most importantly) must show that the course of action taken by the doctor is not one which a professional person of ordinary skill would have followed if s/he had been acting with ordinary care.
When deciding whether a doctor has failed to meet the necessary standard of care, it is important not to use hindsight. Doctors can only be judged according to the knowledge that they actually possessed or could have gained access to at the time when the pursuer suffered loss or injury.
In Roe v Ministry of Health [1954] 2 QB 66, the English Court of Appeal decided that the pursuer’s personal injury claim should fail. Lord Denning famously stated that ‘we must not look at the 1947accident with 1954 spectacles’. This statement of Lord Denning could be also expressed in the following terms: hindsight is a wonderful thing.
Sometimes, of course, a doctor’s conduct may fall well below the accepted standard of the profession, but they will still manage to escape liability to a patient. This usually arises when they doctor can show that the negligence was not the primary cause (causa causans) of the injury, but rather merely a factor in the background of events (causa sine qua non).
In two well known cases – Barnet v Chelsea and Kensington Hospital Management Committee [1969] 1QB 248 and Kay’s Tutor v Ayrshire and Arran Health Board 1987 1 SLT 577, doctors who were accused of medical negligence were able to prove that their breach of the duty of care to the patients in question was not the primary cause of harm or injury and they were, therefore, able to escape liability.
That said the case reported by Sky News would appear to fall into that special category of res ipsa loquitur or the facts speak for themselves (see Cassidy v Ministry of Health [1951] 2 KB 343). In other words, the inference of medical negligence is so overwhelming that there really cannot be a a credible, alternative explanation for the injuries suffered by the patient in this rather bizarre case.
A link to the story on Sky News can be found below:
Copyright Seán J Crossan, 5 August 2019
Seán Crossan's Scots Law 