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Emily's Lawsuit: Clinical Negligence & Informed Consent in Medical Treatment, Exercises of Law of Torts

De Montfort University (DMU)Law of Torts

The concept of clinical negligence and the importance of informed consent in medical treatment, using the case of emily, a 17-year-old girl seeking to start taking the pill, as an example. The legal framework surrounding consent, competence, and the duty of care owed by healthcare practitioners. It also examines the role of the gp in emily's case and the potential liability of the virgo medical centre.

Typology: Exercises

2015/2016

Uploaded on 06/12/2016

taniet
taniet 🇮🇹

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The!dilemma!concerns!“Clinical!negligence,”!a!situation!in!which!a!patient!is!
harmed!by!medical!care!in!circumstances!where!a!health-care!practitioner!or!
organisation!has!failed!to!take!reasonable!care.!!
Other!medical!issue!are!involved,!especially!referring!to!consent!to!medical!care.!!
In!this!regard,!Emily&is&a&17-year-old&girl!who!visits!her!GP!to!start!taking!the!
pill!and!seems!to!be!perfectly!aware!of!this!choice.!The!authority!Gillick!v!West!
Norfolk!explains!how!a!person!under!the!age!of!18!can!provide!valid!consent!to!
treatments!when!having!the!maturity!to!understand!the!medical!and!moral!
issues!involved.!In!order!to!give!effective!consent!the!patient!must!be!competent,!
sufficiently!informed!and!free!from!any!coercion!or!undue!influence!(Re!T!Adult,!
A!local!authority!v!Mr!A!Mrs!A).!
According!to!MCA!2005!s!(1)!and!3(1)!competence!can!be!indirectly!defined!as!
the!capacity!of!the!person!to!understand!the!relevant!information!of!the!case,!to!
consider!and!balance!this!information!in!a!decision-making!process!and!to!
communicate!that!decision.!!
Finally,!Chatterton!v!Gerson!cleared!up!that!the!patient!is!usually!treated!as!
sufficiently!informed!if!he!understands!in!broad!terms!the!nature!of!the!
treatment.!A!lack!of!information!instead!might!lead!to!two!different!legal!
complaints:!the!patient!could!either!affirm!the!doctor!committed!the!tort!of!
battery!or!the!existence!of!a!negligent!conduct!by!the!doctor.!
!
As!anticipated!the!central!issue!of!the!dilemma!is!about!clinical!negligence.!
Emily&in&order&to&succeed&the&lawsuit&must&establish&on&the&balance&of&
probabilities&that&1)&the&GP&owed&her&a&duty&of&care,&2)&the&doctor&was&in&
breach&of&that&duty,&3)&the&breach&produced&a&damage&or&injury&to&her.!
Negligence!will!be!determined!unless!the!doctor!offers!a!good!explanation!of!
how!the!injury!might!have!occurred!without!any!negligence.!
!
In!Caparo!v!Dickman,!depending!on!Donoghue!v!Stevenson!approach,!it!was!held!
that!a!duty!of!care!exists!when!the!relationship!between!the!parties!clearly!
satisfies!any!test!based!upon!foreseeability!of!harm,!proximity!of!the!relationship!
between!claimant!and!defendant,!or!indeed,!a!requirement!that!it!be!just!and!
reasonable!to!impose!a!duty!of!care.!
It!is!not!always!clear!when!that!duty!arises!because!the!relation!could!be!
expressed!or!implied,!but!here!the!authority!of!Powell!v!Boldaz!may!apply:!the!
GP!has!a!certain!level!of!responsibility!when!requested!to!provide!medical!
assistance!and!services.!The!issue!was!firstly!set!out!by!Pippin!v!Sheppard,!
determining!that!a!doctor!owes!a!duty!of!care!to!anyone!who!accepts!a!patient.!
!
Emily&must&prove&practitioner’s&failure&to&apply&the&standard&of&care&
expected&in&those&circumstances.!!
Blyth!v!Birmingham!Waterworks!Company!introduced!the!concept!of!standard!
of!reasonable!care,!subsequently!in!Bolam!v!Friern!Hospital!Management!the!
court!suggested!the!“standard!of!the!skilled!professional”,!the!man!exercising!
special!knowledge!and!competence!and!not!only!an!ordinary!capability.!
Bolam!was!applied!in!Maynard!v!West!Midlands!Regional!Health!and!Sidaway!v!
Governor!of!Bethlem.!Because!of!the!critics!to!the!introduction!of!a!standard!of!
proof!decided!by!doctors,!the!authority!was!followed!by!Bolitho!v!City!&!Hackney!
pf3

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The dilemma concerns “Clinical negligence,” a situation in which a patient is harmed by medical care in circumstances where a health-care practitioner or organisation has failed to take reasonable care. Other medical issue are involved, especially referring to consent to medical care. In this regard, Emily is a 17-year-old girl who visits her GP to start taking the pill and seems to be perfectly aware of this choice. The authority Gillick v West Norfolk explains how a person under the age of 18 can provide valid consent to treatments when having the maturity to understand the medical and moral issues involved. In order to give effective consent the patient must be competent, sufficiently informed and free from any coercion or undue influence (Re T Adult, A local authority v Mr A Mrs A). According to MCA 2005 s (1) and 3(1) competence can be indirectly defined as the capacity of the person to understand the relevant information of the case, to consider and balance this information in a decision-making process and to communicate that decision. Finally, Chatterton v Gerson cleared up that the patient is usually treated as sufficiently informed if he understands in broad terms the nature of the treatment. A lack of information instead might lead to two different legal complaints: the patient could either affirm the doctor committed the tort of battery or the existence of a negligent conduct by the doctor. As anticipated the central issue of the dilemma is about clinical negligence. Emily in order to succeed the lawsuit must establish on the balance of probabilities that 1) the GP owed her a duty of care, 2) the doctor was in breach of that duty, 3) the breach produced a damage or injury to her. Negligence will be determined unless the doctor offers a good explanation of how the injury might have occurred without any negligence. In Caparo v Dickman, depending on Donoghue v Stevenson approach, it was held that a duty of care exists when the relationship between the parties clearly satisfies any test based upon foreseeability of harm, proximity of the relationship between claimant and defendant, or indeed, a requirement that it be just and reasonable to impose a duty of care. It is not always clear when that duty arises because the relation could be expressed or implied, but here the authority of Powell v Boldaz may apply: the GP has a certain level of responsibility when requested to provide medical assistance and services. The issue was firstly set out by Pippin v Sheppard, determining that a doctor owes a duty of care to anyone who accepts a patient. Emily must prove practitioner’s failure to apply the standard of care expected in those circumstances. Blyth v Birmingham Waterworks Company introduced the concept of standard of reasonable care, subsequently in Bolam v Friern Hospital Management the court suggested the “standard of the skilled professional”, the man exercising special knowledge and competence and not only an ordinary capability. Bolam was applied in Maynard v West Midlands Regional Health and Sidaway v Governor of Bethlem. Because of the critics to the introduction of a standard of proof decided by doctors, the authority was followed by Bolitho v City & Hackney

Health Authority, admitting the evaluation of risk/benefits to satisfy the correct standard of care. All the cited cases do not perfectly explain the modern relationship between doctor and patient and the level of information to be given, especially at the current stage of medicine. Montgomery v Lanakrshire established a new approach, overcoming the principles in Sidaway. Doctors have the duty to explain all material risks, which would be considered determinant to the reasonably prudent patient. The GP should have asked further questions about Emily’s personal condition, mentioning all the consequences arising from the assumption of contraceptives such as problems to lymphatic and circulatory systems. Such failure to disclose risks should be examined applying Chester v Afshar. In order to recover damages in her action of negligence, it is necessary for Emily to prove that the harm was a consequence of Dr Stopes’ conduct. The traditional test of factual causation in the tort of negligence is the “But-for test” in Barnett v Chelsea: no connection is established unless there is a scientific opinion that provides evidence that there was a causal relationship between the breach of the duty and the following injury. Emily was a heavy smoker and in her family previous cases of cardiovascular illness occurred. These are two central factors that may provoke stroke. The application of the material contribution to harm of Bonnington Castings v Wardlaw is unlikely to be applied. We may consider the material contribution to risk in MC Ghee v NCB instead, which standard of causation imposes liability when the acts contribute to the risk of injury. She asked Emily to return to the surgery after one month to make her blood pressure reassess, as pill and high blood pressure are acknowledged risk factors for a stroke. Again, the liability is not recognised in case of multiple factors. In Wilsher v Essex the CA applied the "material increase of risk" test, first espoused in McGhee, dismissing the claim: no material contribution to risk if there are many possible causes. E mily’s stroke may derive from other reasons such as stress, alcohol and tobacco abuse, sedentary lifestyle, poor nutrition and obviously family heredity. Doctor Stopes, recently qualified, prescribes immediately the pill without taking in account other possible risks arising from that high blood pressure. Junior doctors need to gain practical experience and no lesser standard for the performance is applied. Patient have the right to receive an adequate level of care, even if the doctor is not a specialist. Furthermore a learned doctor should be able to recognize when a further help is necessary. In Wilsher the CA precised that the standard of care is related to the position occupied and the level of specialised service being offered. Dr Stopes was not aware of the real situation and underestimated the problem but a breach of duty may be recognized. The evaluation was superficial, she neither recommended other tests nor asked the patient about possible allergies. More over she suggested a follow up