amy_cl292
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#1
Report Thread starter 1 year ago
#1
Hi,
Can anyone advise on this?I have lots of notes but do not know the structure or the correct law to apply .Can anyone tell me the structure ,or anywhere online that has a outline,i have 2 medical questions like this

Mr Smith a surgeon who works at Nuneaton hospital removes Janes good eye by mistake,along with the damaged eye.
Leaving jane totally blind.
Discuss a claim by Jane against Nuneaton hospital.


_____________________________________________
Duty – existing duty found in Barnett v Chelsea and Kensington

Breach – standard = Bolam test ‘competent body of medical opinion’, note Bolitho and that action must be logically defensible

Factors – foreseeability, foreseeable
magnitude.
Likelihood of the harm occurring is high so Dr should have done more to guard against the risk e.g. Haley v LEB
practicality, no reasonably practical precautions were taken,

causation-Causation – Factual causation – ‘but for’ Dr removing her good eye,She would have normal eyesight in her one eye e.g. Barnett
Last edited by amy_cl292; 1 year ago
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Squiggles1238
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#2
Report 1 year ago
#2
Hello, i dont know what level youre studying at so if what im about today is of a lower level (im studying A level law- currently AS), then i apologise! im guessing that this is a question on negligence so i will try and help you in relation to that! (the cases that im using are the ones taught to me on the eduqas spec so yours might be different)
always start by stating the general equation- there must be a DoC, a breach of DoC, and then look at the damage
DoC- 1) reasonably foreseeable harm- kent v griffiths
2) proximity- Mcgloughlin V Obrian
3)fair just and reasonable to impose duty

breach: standard of care- do what youve done by using bolam and bolitho cases
5 risk factors:
1) size of risk
2) cost and practicality
3) special characteristics of C
4) public benefit
5) knowledge of the risk
(i havent put cases for these but if you need them let me know)

Damage- factual cause- but-for test (add case)
legal cause- add case
remoteness- wagon mound No.1

novus actus interveniens? (act of god, 3rd party or of C?)
need to apply thin skull rule?

this can be used for any negligence-based scenario, just make sure to introduce what youre going to be applying (the equation Duty of Care + breach + damage= liability in negligence), apply consistently to the scenario and evidence your points with relevant law, and conclude stating whether or not they would be liable

(again if this is not relevant to negligence i am sorry but i hope it helps!)
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Nightwish1234
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#3
Report 1 year ago
#3
(Original post by amy_cl292)
Hi,
Can anyone advise on this?I have lots of notes but do not know the structure or the correct law to apply .Can anyone tell me the structure ,or anywhere online that has a outline,i have 2 medical questions like this

Mr Smith a surgeon who works at Nuneaton hospital removes Janes good eye by mistake,along with the damaged eye.
Leaving jane totally blind.
Discuss a claim by Jane against Nuneaton hospital.


_____________________________________________
Duty – existing duty found in Barnett v Chelsea and Kensington

Breach – standard = Bolam test ‘competent body of medical opinion’, note Bolitho and that action must be logically defensible

Factors – foreseeability, foreseeable
magnitude.
Likelihood of the harm occurring is high so Dr should have done more to guard against the risk e.g. Haley v LEB
practicality, no reasonably practical precautions were taken,

causation-Causation – Factual causation – ‘but for’ Dr removing her good eye,She would have normal eyesight in her one eye e.g. Barnett
Hiya, your structure is correct - for negligence you want to establish 1) a Duty of Care, 2) Breach, 3) Causation. This case seems weirdly clear cut, did you omit some facts for simplicity?

DoC - I'm afraid I disagree with Squiggles (sorry!), the relationship between a doctor and a patient is well established. You do not need to go through the elements of the Caparo test, and to do so suggests a poor understanding of the law in this area or a lack of confidence in your approach. You only need to apply the tripartite Caparo test if this is not a established duty.
You are correct in finding that this is an established duty, and Barnett is one of the many cases you can use to illustrate this.

Breach - Bolam and Bolitho are indeed your standard cases for establishing the standard to which medical professionals are held. Did the surgeon fall below the standard of a reasonably competent surgeon acting in his position? I think it's fair to say he did - there is no indication in the facts you have provided that say the medical notes were incorrect saying to remove both eyes. On the facts, he removed two eyes and no reasonably competent surgeon would make this mistake without good reason.
You do not need to run through the many tests identified by Squiggles - it is not about making sure you tick every and any box, but clearly identifying where there is contention and only then discussing these issues.

Causation - Again, 'but for' is your classic test (there are some small developments in the law here such as the SAAMCO test, but seems a bit excessive for this). But for his surgery she would have an eye, so yes, satisfied. Again, there is no facts telling you to apply any tests like novus actus interviews, thin skull rule etc etc).

I note, however, the question hasn't asked you to discuss liability against the surgeon, but against the hospital. You might want to consider bringing in Vicarious Liability.

I comment on Squiggles1238's comment just to be thorough, I appreciate they may not be suggesting to go through every single test, and are just flagging possibilities. In the off chance they actually think you should apply every test, then absolutely do not do this.
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Yasmink_22ln
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#4
Report 1 year ago
#4
(Original post by amy_cl292)
Hi,
Can anyone advise on this?I have lots of notes but do not know the structure or the correct law to apply .Can anyone tell me the structure ,or anywhere online that has a outline,i have 2 medical questions like this

Mr Smith a surgeon who works at Nuneaton hospital removes Janes good eye by mistake,along with the damaged eye.
Leaving jane totally blind.
Discuss a claim by Jane against Nuneaton hospital.


_____________________________________________
Duty – existing duty found in Barnett v Chelsea and Kensington

Breach – standard = Bolam test ‘competent body of medical opinion’, note Bolitho and that action must be logically defensible

Factors – foreseeability, foreseeable
magnitude.
Likelihood of the harm occurring is high so Dr should have done more to guard against the risk e.g. Haley v LEB
practicality, no reasonably practical precautions were taken,

causation-Causation – Factual causation – ‘but for’ Dr removing her good eye,She would have normal eyesight in her one eye e.g. Barnett
A01
the different types and what the law is don’t use cases -10 markers
A02 is use cases explain how and why it was used for this law and how the case was decided by court -15 markers is both 10 marker and the cases

A03- is A01/2 combined and give reasoning of what law they could use for the case in the scenario then state of they would be liable and then state ur opinion
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amy_cl292
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#5
Report Thread starter 1 year ago
#5
(Original post by Nightwish1234)
Hiya, your structure is correct - for negligence you want to establish 1) a Duty of Care, 2) Breach, 3) Causation. This case seems weirdly clear cut, did you omit some facts for simplicity?

DoC - I'm afraid I disagree with Squiggles (sorry!), the relationship between a doctor and a patient is well established. You do not need to go through the elements of the Caparo test, and to do so suggests a poor understanding of the law in this area or a lack of confidence in your approach. You only need to apply the tripartite Caparo test if this is not a established duty.
You are correct in finding that this is an established duty, and Barnett is one of the many cases you can use to illustrate this.

Breach - Bolam and Bolitho are indeed your standard cases for establishing the standard to which medical professionals are held. Did the surgeon fall below the standard of a reasonably competent surgeon acting in his position? I think it's fair to say he did - there is no indication in the facts you have provided that say the medical notes were incorrect saying to remove both eyes. On the facts, he removed two eyes and no reasonably competent surgeon would make this mistake without good reason.
You do not need to run through the many tests identified by Squiggles - it is not about making sure you tick every and any box, but clearly identifying where there is contention and only then discussing these issues.

Causation - Again, 'but for' is your classic test (there are some small developments in the law here such as the SAAMCO test, but seems a bit excessive for this). But for his surgery she would have an eye, so yes, satisfied. Again, there is no facts telling you to apply any tests like novus actus interviews, thin skull rule etc etc).

I note, however, the question hasn't asked you to discuss liability against the surgeon, but against the hospital. You might want to consider bringing in Vicarious Liability.

I comment on Squiggles1238's comment just to be thorough, I appreciate they may not be suggesting to go through every single test, and are just flagging possibilities. In the off chance they actually think you should apply every test, then absolutely do not do this.
Hi,
I appreciate your help,thank you it has helped.
Yes i have been told all the law i applied was generally correct but i cannot make sentences from the notes,i cant answer the question still.Do you know any sites that show examples or structures ,i just want to see an example layout,ive been doing this all day and cant find one online
Last edited by amy_cl292; 1 year ago
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Nightwish1234
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#6
Report 1 year ago
#6
(Original post by amy_cl292)
Hi,
I appreciate your help,thank you it has helped.
Yes i have been told all the law i applied was generally correct but i cannot make sentences from the notes,i cant answer the question still.Do you know any sites that show examples or structures ,i just want to see an example layout,ive been doing this all day and cant find one online
I can message you a section from one of my old essays if that is of use?
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amy_cl292
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#7
Report Thread starter 1 year ago
#7
(Original post by Nightwish1234)
I can message you a section from one of my old essays if that is of use?
Hi
That would be so helpful
Thank you
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