QUESTION ONE
From the fact pattern provided, the issue at hand is medical negligence. Medical negligence arises when a medical professional gives substandard care to a patient. Substandard care may take various forms such as a misdiagnosis, mistakes that occur in surgery and giving a patient incorrect treatment. Medical professionals have a duty to exercise reasonable care when tending to their patients. Failure to exercise reasonable care amounts to the breach, and it might have adverse effects causing harm to the patient. Negligence is a tort that was critically evaluated in the case of Donoghue v Stevenson. In his judgment on the case, Lord Atkin outlined that the guiding principle in dealing with negligent cases is the application of the neighbour principle. According to Lord Atkin, “a neighbour is the person that is so closely and directly affected by my actions or omissions that I must take reasonable care by having them in contemplation when directing my mind to perform certain acts or omissions.” For a claim of medical negligence to be successfully established, the elements of medical negligence must be mutually inclusive. The following elements must be present. First, is the duty of care, second is a breach of duty of care, and third is the damage suffered by the person to whom the duty was owed as a result of the commission or omission of the defendant.
Duty of care is the legal duty to ensure that others do not suffer harm. Where the duty of care is not established, then there is no liability. Duty of care normally arises when a medical doctor accepts to take in a patient to treat them. This was outlined in Pippin v Sheppard. The court held that the duty of care arises even when a person undertakes to perform a certain obligation without consideration. The test to be applied when establishing a duty of care is the foreseeability test. The court laid out this test in Kent v Griffiths.. From the case, the court stated that liability as to the duty of care would arise in a situation where a patient suffers further injuries caused by the delay of an ambulance as there is necessary proximity to sufficiently establish the duty of care in such a given case.
The second element of medical negligence is a breach of duty of care. The court in Bolam v Friern Hospital Management Committee Indicated that a medical professional would not be held liable for negligence if his conduct is considered as the proper practice that is acceptable by a responsible medical body. For liability to attach to the defendant, he must have breached the legal duty of care. The reasonability test considers what a reasonable man would have done given the same set of circumstances. Notably, the court in Roe v Ministry of Health. Outlined that authorities who run a hospital are equally under a duty of care to provide reasonable services to the patient. The authorities are also liable for their employees’ negligence. In determining the standard of care, the court in Wilsher v Essex Area Health Authority. Ruled that the law regarding medical practice requires students to be judged by the same standards used to judge their older colleagues’ profession. Therefore, if a student acts negligently in his line of duty, he will be judged proportionately as a more experienced and qualified professional would.
The third element of medical negligence is damage or injury. Under this element, there must be a direct link of causation between the plaintiff’s injury and the acts or omission of the defendant that are said to have caused the injury. The test applied in proving this element is the but-for test. Essentially, these tests outline that an injured party would not have incurred the injury, but for the defendant’s actions and omissions, this position was outlined by Walter LJ in Bailey v Ministry of Defence..
From the fact pattern, Doctor Raj and Doctor Karim owed a duty of care to Adi the patient. Dr Karim breached this duty of care when he instructed the premature removal of Adi from the HDU. Adi succumbed to a cardiac arrest after the removal Adi would not have suffered the cardiac arrest but-for Dr Karim’s instruction to remove him from the HDU prematurely. This led to injury, which is death in the given case. The injury has a direct causal link; consequently, all medical negligence elements have been clearly established. However, Dr Raj is not liable because the Bolam case established that a medical professional would not be held liable for negligence if he acted within the acceptable practice by a respectable medical body.
Conclusion
Adi’s family should institute a claim of negligence against Dr Karim and the West Hertfordshire NHS Trust because according to Roe v Ministry of Health, the hospital authorities are equally liable for their staff’s negligence.
QUESTION 2
Duty of care is an element of medical negligence. Duty of care includes the legal duty or obligation of a duty holder (medical professional) to protect the duty bearer (patient) from harm’s way. Duty of care claims must indicate to whom the duty is owed and the extent to which the duty extends. In various cases, the courts have established the general rule that where there is no duty of care, then there is no liability unless proven otherwise. The essence of this general rule is to reduce medical negligence claims to only those claims where the duty of care exists thus lessening the scope where plaintiffs want to recover damages from the defendant (medical professionals) even when it is evident there exist no direct causal link, or the link is so remote. The test applied in determining the duty of care is the foreseeability test. This test was set out in Kent v Griffiths in this case; a patient suffered more injury when waiting for an ambulance that took too long to arrive. The court held that a person’s life was in danger, and it was reasonably foreseeable that he would have suffered more injuries due to the ambulance’s delay. Does the test consider was the risk foreseeable? Could the medical professional reasonably comprehend that the risk occasioned could have occurred due to his acts or omissions? When proving medical negligence, one must prove that the person who performed the careless acts caused the actual injury and the legal cause or the proximate cause. According to the Bolam case, in an unforeseeable type of harm, a medical professional will not be held liable for negligence if he acted within the practice that is acceptable by a respectable medical body. Duty of care arises when a medical professional undertakes to look up a patient’s case whether there was a consideration or not. This was outlined in Pippin v Sheppard. In medical negligence cases, the burden of proof lies on a claimant who claims that a medical professional acted negligently. The test applied in such cases is the but-for test. Medical science cannot establish that, but for the defendant’s acts, the injury would not have occurred, which essentially means that the defendant contributed to the injury, the claimant will succeed. This position was ruled out in the Bailey case.
From the given set of circumstances in the fact pattern, Dr Khan, a medical doctor, owes a patient’s duty of care. When exercising the duty of care, the doctor must tell the patient the underlying risks involved in the specific procedure. Failure to do this amounts to a breach of the underlying duty of care. When Nadia consulted Dr Khan, he advised her to have surgery. Nadia would not have undergone the procedure but for Dr Khan’s advice. Therefore, Dr Khan’s failure to warn Nadia of the possible injuries amounted to a breach of his care duty. Similarly, this position was stated in Chester v Afshar.. As a result of Dr Khan’s medical negligence, Nadia suffered irreversible paralysis in her right leg. The doctor is, therefore, liable for the injuries Nadia sustained. When a person suffers damage or injury from the defendant’s negligent acts, the person should recover damages against the defendant for the injury occasioned.
Conclusion
Professionals such as doctors owe a duty of care to their patients. A duty to put the patients’ interest first and give them the best reasonably possible treatment Failure to abide by this legal obligation amounts to professional negligence as evidenced in the case above. The plaintiff is entitled to damages.
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.