Tort moot help neededWatch
My subject is on whether there is a breach of duty from a doctor if a patient recieves bad aftercare and if there is a link between the patient getting brain damage and the doctors poor care
Any help is much appericated. I don't have a partner so I am doing this alone and am beginning to struggle thanks.
Much would depend on the "bad aftercare" and what that pertains to, with importance on how the brain damage was contracted.
In terms of general breach of duty/negligence cases, the following may be of some assistance depending on what side of the argument you're on.
Bolam v Friern Hospital Management Committee - Key case with regards to the standard of care required. Held that a doctor would not be liable in negligence if he acted "...in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular area" in other words, a man is not negligent just because there is a body of opinion who would take a contrary view. (McNair J)
Bolitho v City and Hackney: challenged Bolam by stating that "a responsible body of opinion must be capable of withstanding logical analysis." Thus, if it can be shown that such conduct in question could not withstand logical analysis, then a doctor may be negligent. As a side note, it is very difficult in reality to show this, as even in Bolitho the defendant was not negligent.
Whitehouse v Jordan - an error of clinical judgment may result in negligence. If the error is one "that would not have been made by a reasoanbly competent professional man professing to have the standard... then it is negligent." This shows that if the care from the doctor had conduct resulting in an error that a competent professional in the same situation would not have made, then it is negligence.
De Freitas v O'brien - this case showed that a spinal operation which only 11 surgeons out of over 1,000 considered safe - was not neglgient. Thus, the whole notion about having a few other doctors defending the conduct would be enough - stays to be true.
With regards to the link between the brain damage etc, and the doctor's care, must be able to prove "causation". That is, "but for" the defendant's negligence, would the claimant have suffered from the brain damage? If the answer is no, then he is negligent. Example is Clark v MacLennan - plaintiff had two stiff fingers, came out of treatment with 4. Pretty obvious that but for the doctor's conduct, they would not have suffered 4 stiff fingers.
I'd go on further but it really depends on what the question/facts of the moot is.