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    This is an extract taken from a problem question I'm doing

    Michael and Terry are the stars of Gotcher!, a late-night television show made by Kamikaze Productions featuring the duo and their friends performing a mix of dangerous stunts and outrageous practical jokes on unsuspecting members of the public. In the course of filming material for the new series, they carry out the following pranks:
    A mock road accident in which a car mounts the pavement at speed and knocks Michael through the window of a china shop. Unfortunately, Julie was walking alongside Michael and the stunt driver, whose mind was elsewhere, negligently hit her at 40 mph. She was taken unconscious to hospital and given an emergency operation to deal with her injuries. In the middle of the operation, the surgeon identified and removed what he thought was a malignant tumour, but which turned out to be benign. The surgery was successful, but Julie can no longer work and her life expectancy has been reduced by 20 years as a result of her injuries.


    How would you analyse the hospital/surgeon's liability? Is it a case of material contribution to harm or is that for work place health and safety only?
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    (Original post by rliu)
    This is an extract taken from a problem question I'm doing

    Michael and Terry are the stars of Gotcher!, a late-night television show made by Kamikaze Productions featuring the duo and their friends performing a mix of dangerous stunts and outrageous practical jokes on unsuspecting members of the public. In the course of filming material for the new series, they carry out the following pranks:
    A mock road accident in which a car mounts the pavement at speed and knocks Michael through the window of a china shop. Unfortunately, Julie was walking alongside Michael and the stunt driver, whose mind was elsewhere, negligently hit her at 40 mph. She was taken unconscious to hospital and given an emergency operation to deal with her injuries. In the middle of the operation, the surgeon identified and removed what he thought was a malignant tumour, but which turned out to be benign. The surgery was successful, but Julie can no longer work and her life expectancy has been reduced by 20 years as a result of her injuries.


    How would you analyse the hospital/surgeon's liability? Is it a case of material contribution to harm or is that for work place health and safety only?
    None - it all goes to the driver and Micheal
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    (Original post by rliu)
    This is an extract taken from a problem question I'm doing

    Michael and Terry are the stars of Gotcher!, a late-night television show made by Kamikaze Productions featuring the duo and their friends performing a mix of dangerous stunts and outrageous practical jokes on unsuspecting members of the public. In the course of filming material for the new series, they carry out the following pranks:
    A mock road accident in which a car mounts the pavement at speed and knocks Michael through the window of a china shop. Unfortunately, Julie was walking alongside Michael and the stunt driver, whose mind was elsewhere, negligently hit her at 40 mph. She was taken unconscious to hospital and given an emergency operation to deal with her injuries. In the middle of the operation, the surgeon identified and removed what he thought was a malignant tumour, but which turned out to be benign. The surgery was successful, but Julie can no longer work and her life expectancy has been reduced by 20 years as a result of her injuries.


    How would you analyse the hospital/surgeon's liability? Is it a case of material contribution to harm or is that for work place health and safety only?
    Well, the first question is one of causation. As already stated, it could be that there was *no* causation whatsoever in which case the hospital is not liable. Otherwise, there could be some liability for whatever removing the tumour caused.

    You could argue, by the way, that there was trespass to the person in that the surgeon has performed an extra operation without consent - after all, she was there for the road injuries and not for a tumour operation for which you'd probably need her consent...
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    It looks to me like the tumor was found while the surgeon was carrying out the emergency operation, so I think trespass is probably a stretch. In terms of removing the tumour, the usual medical negligence/standard of care cases will come up.
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    (Original post by jjarvis)
    It looks to me like the tumor was found while the surgeon was carrying out the emergency operation, so I think trespass is probably a stretch. In terms of removing the tumour, the usual medical negligence/standard of care cases will come up.
    Not necessarily - a competent person generally has the right to consent to an operation, see St George's Trust v S [1998] and Herring's case note. The emergency operation was regarding injuries on the road so it could be argued that removing the tumour was not necessary for the operation. This being so, it could be argued that the patient should have been asked if she'd like the operation for the tumour: perhaps she's part of some odd belief which forbids those kinds of operations (as well as St George's Trust, see Re T (Refusal of Medical Treatment) [1992]). So it could be trespass to the person/battery, potentially.
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    (Original post by rliu)
    This is an extract taken from a problem question I'm doing

    Michael and Terry are the stars of Gotcher!, a late-night television show made by Kamikaze Productions featuring the duo and their friends performing a mix of dangerous stunts and outrageous practical jokes on unsuspecting members of the public. In the course of filming material for the new series, they carry out the following pranks:
    A mock road accident in which a car mounts the pavement at speed and knocks Michael through the window of a china shop. Unfortunately, Julie was walking alongside Michael and the stunt driver, whose mind was elsewhere, negligently hit her at 40 mph. She was taken unconscious to hospital and given an emergency operation to deal with her injuries. In the middle of the operation, the surgeon identified and removed what he thought was a malignant tumour, but which turned out to be benign. The surgery was successful, but Julie can no longer work and her life expectancy has been reduced by 20 years as a result of her injuries.


    How would you analyse the hospital/surgeon's liability? Is it a case of material contribution to harm or is that for work place health and safety only?
    In cases involving medical negligence, there has been modification made to the reasonable man test as used in general negligence cases: Nettelship v Weston [1971] 2QB691. The standard of care used in medical cases has stemmed from Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. This produced the ‘Bolam Test’. This test is applicable to all profession situations; however I will examine the effect of the decision as to subsequent medical law. In R v Bateman (1925) LJKB Lord Hewitt CJ stated that “if a doctor holds himself out as possessing special skill or knowledge… he owes a duty to the patient to use due caution in undertaking the treatment”. This includes “diligence, care, knowledge, skill and caution”. This duty is owed to patients from the outset of treatment: Barnett v Chelsea and Kensington HMR 1969 1 QB 428. Providing that a duty is established, the standard of care is therefore considered in regards of breach of duty.
    McNair J developed the Bolam test, as “the standard of the ordinary and reasonable man exercising and professing to have that special skill… …the doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art… …a doctor is not guilty of negligence if he is acting in accordance with such a practice, merely because there is one body of medical evidence which takes a contrary view”. This judgement was later confirmed in the House of Lords. From this judgement, one may assume that the standard of breach is that of a body of professional opinion. This rule causes many problems. One body of medical opinion may differ from another. The courts then have to decide which one to accept, and given that lawyers aren’t medical experts, a conflicting situation may result in confusion. Worse still, the court may be faced with having to reject the professional opinion. As Lord Scarman, in Maynard v West Midlands RHA [1985] 1 WLR 634 (HL) stated ‘differences of opinion exist, and continue to exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgement. A court may prefer one body of medical opinion to another; but that is no basis for a conclusion of negligence”. In this decision, the Lords were reluctant to decide between differing bodies of medical opinion, and it was confirmed that the judiciary have complete discretion in deciding the outcome of medical negligence cases.
    The ‘Bolam Test’ was used in Sidaway v Board of Governers of the Bethlem Royal Hospital [1984] AC 871. The claimant wasn’t warned against a potential injury from an operation. The body of medical opinion said they wouldn’t have warned against the potential injury from the operation either. There was a very low risk of paralysis (around 1%). It was held that the defendant was liable for negligence because the courts have the power to reject medical opinion. Had Mrs Sidaway asked the doctor about the risks involved in the operation, and the medical professionals had given a false statement, the doctors would be negligent, as they are under a duty to give an answer as “truthfully and fully as the question requires”- Lord Bridge. Under Bolam, Lord Bridge regarded a 10% risk of a stroke, in saying ‘a disclosure of a particular risk was so obviously necessary to an uninformed choice on the part of the patient that no reasonably prudent medical professional would fail to make it”. Therefore it could be assumed that depending on severity of the risk of injury or death, the courts may decide against professional opinion, on the bases that people are entitled to know of the risks of operations. The ‘Bolam Test’ is therefore applicable where the patient has asked of the risks involved in the treatment and the medical professionals have given a false statement. The principle concerning this was applied, from Sidaway, in Chester v Afshar [2004] UKHL 41. The defendant failed to warn the claimant, when asked about the potential risks of operation, that there was a small chance of paralysis. The House of Lords found the defendant to be negligent, regardless of the slightness of the risk, because of the severity of the injury.
    In Maynard v. West Midlands Regional Health Authority [1984] 1 W.L.R. 634, Lord Scarman commented on the question of a judge’s power to choose between established opinion: "I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred”. This seems to be a reiteration of what McNair J. said in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 583, 587: "I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view”. Later McNair J referred to "a standard of practice recognised as proper by a competent reasonable body of opinion.” The position seems to have changed throughout the subsequent case law.
    In Bolithio v City Hackney and Health Authority (1997) 39 BMLR, the House of Lords affirmed that the Bolam test was not conclusive. They found that there was scope to ask whether the body of opinion was adequate. Lord Brown Wilkinson held: ‘in cases of diagnosis and treatment there are cases where, dispite the body of medical opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence”. Further to this he said “… in my judgement that is because in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable and responsible …if, in rare cases, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible’. Lord Brown Wilkinson emphasised that these cases would therefore be rare. He found that “it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant's conduct falls to be assessed.”

    In Lybent v Warrington Health Authority, The Times, 17 May 1995: A warning was made that an operation may be unsuccessful, even though this warning was opposed to standard practice, and the defendant was found to be negligent after following standard practice. This shows that medical opinion can be floored and differing, and that the courts have the power to choose between bodies of respectable opinion. As was said in Burne v. A [2006] EWCA Civ 24, “there was a perception that the medical profession was “above the law”, that the Bolam test deprived courts of the opportunity and “precipitating changes where required in professional standards””. It has been said that that “professions may adopt unreasonable practices. Practices may develop in professions… not because they serve the interest of the clients, but because they protect the interests or convenience of members of the profession”: F v. R [1983] 33 S.A.S.R. 189,191, per King C.J. Another criticism of Bolam was that it didn’t ‘protect the community’ in light of unsafe practices, as in Shakoor v. Situ (2000) 57 B.M.L.R. 178.
    There are a variety of factors which are considered in the case law as stemming from Bolitho, considered below. If treatment brings about a risk of adverse effects and the doctor could have offered an alternative course of treatment, the doctor will be liable for negligence, regardless of whether there is a body of professional opinion that regards his actions as acceptable. This is shown in the case of Hunters v Cole 79. A course of antibiotics was provided to the patient. Treatment was stopped early. Negligence was found because another drug should have been given to the patient. Many doctors gave opinions that they would have followed the same procedure as the defendant. Sachs LJ disregarded this and found that the expert witnesses had a “residual adherence to out of date ideas which on examination do not really stand up to analysis”. 80. Instances have followed the same tract as Bolitho, as for instance, negligence was found in “not keeping good lines of communication” between hospital departments 84. In 86 all that needed to be made were more appointments. The doctor should have arranged to see the patient sooner. The body of medical opinion accepted the physician’s conduct but this evidence was rejected, in line with Bilitho.
    The distinction is this area of law arises when there is speculation over the risk of the precautions. It may become difficult to find what a ‘clear precaution’ is. In Macey v Warwickshire H.A 87, the view of professionals peer opinion said that the procedure not followed would have been risky and the patient’s peer opinion said it would have been unreasonable to do nothing. It was held that ‘both parties view was logical and rational; they differ because of different views of the balance of risks one way or the other’. The position seems to be, therefore, that if the doctor’s opinion doesn’t take into account that there was a “clear precaution” as a course of action, then the doctor will be negligent. However, from the subsequent case law, one can infer that the more complex the choice is, the less likely the medical professional is to be liable.




    Another factor which can effect the decisions of medical professionals, and therefore the validity of professional opinions, is over-stretching of resources. Sometimes this tension can effect the ‘logicality and rationality’ of a course of action. In Garcia v St Mary’s NHS Trust [92] the medical opinion attested that the NHS’s conduct was unreasonable, due to absence of an onsite registrar, it was argued that the patient, who suffered from a condition which had a 1/1000 chance of occurring, required better medical care (an onsite registrar). “systems and resources obviously have to be designed in order to accommodate what is reasonably to be forseen… [and not] framed to deal with the possibility that a rare occurrence may happen”. In case the condition arose. The court found that the decision to employ an onsite registrar was a question of reasonableness, and therefore the defendant was absolved of liability, as hospital resources and allocation were considered.
    Judges take into account the ‘risks and benefits’ when accessing medical opinion. The doctor’s conduct may be incredibly risky. It was said in Birch v University College London Hospital NHS Foundation Trust that if the two bodies of opinion weigh the risks differently, this doesn’t impute negligence. However, if there is no consideration of these issues, Bolitho may be used.
    The medical opinion must also be contingent. 132 – “a doctor cannot say, for example, that he supports a certain approach, and attests that in that very situation he would nevertheless have done the opposite”. In Hunt v NHS Litigation Authority, the medical opinion was regarded as “extreme” as on the one hand the opinion was in support of intervention by forcepts to an unborn baby, and on the other it was said “untold damage would be caused to the maternal population”. Neither does vagueness apply, such as if it’s said (134) “I wouldn’t do it the way D did it… but I don’t think he was remiss doing it that way”. If medical opinion is biased due to court-room pressure and the expert “lost sight to his overriding duty to the court”, the evidence is dismissed. 135. Also, if peer opinion called by the defendant doesn’t follow the correct legal test, then the expert has not adhered to the Bolam test. The evidence in this situation would fail and Bolithe would be used. This occurred in 146. The medical opinion was adopting a standard “that is not the standard accepted by law”.

    Lord Browne Wilkinson found that “very seldom be right that the views of a competent medical professional are unreasonable”. This is seen in the case of Wiz (149). The medical professionals lacked logical analysis as [the risks of not acting were too great and the downsides very small], however in the case Brook LJ noted that it was “quite impossible” to have reached the conclusion that these views just couldn’t be supported but responsible doctors. In Greater Manchester something peer professional opinion was even that was acceptable, however had there been a proper risk benefit analysis carried out, the baby may have survived. The expert opinion didn’t work as it “does not withstand logical analysis”.




    A doctor is not required to “second guess” what may be found by the body of professional opinion and must make the best judgement he can: Smith v West Yorkshire 110. In summary, Bolitho will overrule Bolam only if it can be shown that the doctor’s expert evidence did not indicate a risk amounting from that conduct. If the doctors misinterpreted the facts of the patient, or the defendant’s expert opinion contains mistakes, the opinion is found to be not valid: Lillywhite v CLL NHS Trust [2005] EWHC 459 (Q.B.). In 37, there was the suggestion of negligence but the decision by the trial judge was overturned as it was said that the trial judge had “steer[ed] a course between the two experts”, and had “impose[d] his own opinion, regardless of the practice of the medical profession” per Sir Scott Baker. It was said by Leveson L.J that the trial judge “comes nowhere close to concluding that the view expressed by [the GP's expert] was not a view held by an expert in the field, still less that it was one that was not capable of withstanding logical”, and also that “unless the judge concluded that [the GP's expert's] genuinely held view could not withstand logical analysis and was thus unreasonable, [the patient] could not succeed.”
 
 
 
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