non assessed piece
Toby who is 25 has an operation to remove his tonsils. During the operation he has a reaction to the aesthetic drugs that is caused by a genetic condition called malignant hyperthermia. This condition leads to an inability to control body temperature and death of not treated quickly.
Luckily the anaesthetist (Dr Bull) has the required drugs on hand and treats Toby’s malignant hyperthermia. When Toby wakes up Dr Bull discusses the reaction with Toby. He discusses the fact that it is a familial genetic condition. During this conversation, Toby tells Dr Bull that he has an identical twin brother John. Dr Bull tells Toby that there is a very high chance that John also has the gene and that there is a very high chance he will die if he has an anaesthetic without the right drugs at hand. He urges Toby to tell John about his diagnosis. Toby refuses because he says he does not like John and does not feel he should tell him. Dr Bull maintains Toby’s confidence and does not try to inform John or his doctor.
Two years later John is suffering with pain in his knee from years of playing football as a child. His orthopaedic surgeon wants to do an arthroscopy to look inside the knee joint and see what is causing the pain. He gives John the choice of whether he wants to have it under local or general anaesthetic. Because John is nervous about the operation, he elects to have a general anaesthetic.
During the anaesthetic John suffers malignant hyperthermia and despite the doctor’s best efforts they cannot save him. Following John’s death, Toby tells John’s widow Martha about his reaction two years before. Martha is very angry and seeks to bring an action, on behalf of John’s estate, in negligence against Dr Bull for failing to inform John of the hugely increased risk.
Martha seeks your advice regarding bringing a claim in negligence. You need to advise her as her lawyer. Explaining how his situation might fit into the current legal landscape in this context. You should start by explaining first principles and then move on to consider her situation in the light of more specialist case law.
Luckily the anaesthetist (Dr Bull) has the required drugs on hand and treats Toby’s malignant hyperthermia. When Toby wakes up Dr Bull discusses the reaction with Toby. He discusses the fact that it is a familial genetic condition. During this conversation, Toby tells Dr Bull that he has an identical twin brother John. Dr Bull tells Toby that there is a very high chance that John also has the gene and that there is a very high chance he will die if he has an anaesthetic without the right drugs at hand. He urges Toby to tell John about his diagnosis. Toby refuses because he says he does not like John and does not feel he should tell him. Dr Bull maintains Toby’s confidence and does not try to inform John or his doctor.
Two years later John is suffering with pain in his knee from years of playing football as a child. His orthopaedic surgeon wants to do an arthroscopy to look inside the knee joint and see what is causing the pain. He gives John the choice of whether he wants to have it under local or general anaesthetic. Because John is nervous about the operation, he elects to have a general anaesthetic.
During the anaesthetic John suffers malignant hyperthermia and despite the doctor’s best efforts they cannot save him. Following John’s death, Toby tells John’s widow Martha about his reaction two years before. Martha is very angry and seeks to bring an action, on behalf of John’s estate, in negligence against Dr Bull for failing to inform John of the hugely increased risk.
Martha seeks your advice regarding bringing a claim in negligence. You need to advise her as her lawyer. Explaining how his situation might fit into the current legal landscape in this context. You should start by explaining first principles and then move on to consider her situation in the light of more specialist case law.
OK ... so what's the issue that you need help with?
You have two main issues at stake here: (1) can Dr Bull owe John any duty to inform him which is capable of being characterised as a "duty of care" for the purposes of the law of tort; and (2) if he does, is that duty outweighed by Dr Bull's duty to Toby to protect his medical confidentiality.
In addressing question (1) you will need amongst other things to address the difference between "negligent acts" and "negligent failures to act" and the conceptual difference giving rise to this distinction.
You have two main issues at stake here: (1) can Dr Bull owe John any duty to inform him which is capable of being characterised as a "duty of care" for the purposes of the law of tort; and (2) if he does, is that duty outweighed by Dr Bull's duty to Toby to protect his medical confidentiality.
In addressing question (1) you will need amongst other things to address the difference between "negligent acts" and "negligent failures to act" and the conceptual difference giving rise to this distinction.
Do I need to raise any other issues when answering the question? Just needed help on how to structure the answer for a Tort problem question. Thank you!
Original post by DoNotDivideBy0
OK ... so what's the issue that you need help with?
You have two main issues at stake here: (1) can Dr Bull owe John any duty to inform him which is capable of being characterised as a "duty of care" for the purposes of the law of tort; and (2) if he does, is that duty outweighed by Dr Bull's duty to Toby to protect his medical confidentiality.
In addressing question (1) you will need amongst other things to address the difference between "negligent acts" and "negligent failures to act" and the conceptual difference giving rise to this distinction.
You have two main issues at stake here: (1) can Dr Bull owe John any duty to inform him which is capable of being characterised as a "duty of care" for the purposes of the law of tort; and (2) if he does, is that duty outweighed by Dr Bull's duty to Toby to protect his medical confidentiality.
In addressing question (1) you will need amongst other things to address the difference between "negligent acts" and "negligent failures to act" and the conceptual difference giving rise to this distinction.
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