The £20k snip …

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]) 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), 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). 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], one of the most famous medical negligence cases, the Inner House of the Court of Session decided that 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:

  1. The pursuer must show that there is a usual and normal [medical] practice;
  2. The pursuer must show that the defender failed to follow or adopt this practice; and
  3. 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), 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] and Kay’s Tutor v Ayrshire and Arran Health Board [1987], 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]. 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

Don’t stop the music?

Photo by Radek Grzybowski on Unsplash

The English Court of Appeal has just ruled that an employer was liable for the hearing loss of one of its employees. Nothing unusual about that you might say. The case law dealing with an employer’s duty of care to safeguard the health and well being of employees is full of such examples of life changing injuries.

The relevant case, however, wasn’t about excessive levels of noise in factories or other industrial environments. The case involved a viola player (Christopher Goldscheider) who was employed by the Royal Opera House in London.

Mr Goldscheider alleged that his employer had failed to take reasonable precautions to prevent him from suffering hearing damage during a particularly noisy rehearsal of Richard Wagner’s Die Walküre. The Valkyrie overture can be a particular favourite of audiences, but it is very noisy. The American Director, Francis Ford Coppola made full use of its dramatic effect in his Vietnam war movie, Apocalypse Now.

At the time of the rehearsal of Die Walküre, the sound levels of the music reached a massive 132 decibels. Mr Goldscheider was sitting directly in front of the brass section of the orchestra and took the full force of the music. He later claimed that he had developed acoustic shock and had symptoms of tinnitus, hyperacusis and dizziness.

In its defence, the Royal Opera House claimed that Wagner’s music had artistic merit and that some musicians might foreseeable suffer hearing damage.

This argument was first rejected by the English High Court. The English Court of Appeal affirmed the decision of the High Court: the Royal Opera House had failed in its duty of care to Mr Goldscheider by not taking reasonable precautions to safeguard his hearing.

Don’t stop the music? Well, not exactly, but perhaps turn it down to safer levels might be the lesson to be learned here. Concert halls and opera houses (as well as other noisy entertainment venues) please take note.

Links to the judgements of the High Court and the English Court of Appeal respectively can be found below:

Goldscheider v The Royal Opera House Convent Garden Foundation & Ors [2018] EWHC 687 (QB)

Goldscheider v The Royal Opera House Convent Garden Foundation & Ors [2019] EWCA Civ 711

A link to how the case was reported on the BBC News App can be found below:

Royal Opera House loses appeal over viola player’s hearing

The Royal Opera House failed to protect a musician’s hearing during rehearsal, the Court of Appeal rules.

Copyright Seán J Crossan, 19 April 2019

Where there’s blame, there’s a claim?

Photo by Kevin Grieve on Unsplash

Where there’s blame, there’s a claim? Not if you try to fake an accident there isn’t, as one woman from West Yorkshire has found to her cost.

Trip and slip claims are very common types of delict actions (tort in England), but they have to be genuine if the pursuer (claimant) is to have any chance of success. In Chapter 3 of Introductory Scots Law, I discuss the most common type of delictual claim – negligence – and the fact that the pursuer generally must prove that the defender was at fault.

On 2 April 2019, the BBC reported that Farida Ashraf of West Yorkshire had been successfully convicted in a private prosecution, at Bradford Crown Court, brought by the insurance company, Aviva. Ms Ashraf had submitted a personal injury claim for £3,000 in relation to an alleged accident at a Bradford supermarket. This civil claim had been dismissed because it was basically fraudulent. Aviva then commenced a private prosecution against Ms Ashraf, which resulted in her receiving a 21 month prison sentence (suspended for 2 years).

As a point of comparison between Scotland and England, it’s interesting to note that this was a private prosecution brought by Aviva. Such an action would not have happened in Scotland because the Crown Office and Procurator Fiscal Service decide whether criminal proceedings should have been initiated – not a private party like Aviva. In Scotland, insurance companies can, of course, report their suspicions to the Police that a claim may be fraudulent. The Police can investigate and a report will then be submitted to the Procurator Fiscal.

The private prosecution brought against Ms Ashraf is thought to be one of the first successful types of such actions in England.

A link to the BBC article can be found below:

Woman staged fall at Bradford store to claim payment

Farida Ashraf tripped over a crate placed by accomplices and tried to claim £3,000 for injuries.

Copyright Seán J Crossan, 3 April 2019