QUESTION ONE
From the fact pattern provided, the issue at hand is negligence. Negligence is a tort that arises when a person fails to exercise his legal duty of care and a person ends up suffering as a result of the careless acts.[1] The test that determines whether acts are negligent and whether the acts are not caused by negligence is the reasonable man test. A negligent person is, therefore, a person who in light of the reasonable man test was under a duty to perform certain acts yet, through his conduct or omission breached the duty of care bestowed upon him, therefore, resulting in loss or injury. Negligence is a tort that was critically evaluated in the case of Donoghue v Stevenson.[2] Lord Atkin in his judgment on the case outlined that the guiding principle in dealing with negligent cases is the application of the neighbor principle.[3] According to Lord Atkin, “a neighbor 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 negligence to be successfully established, the following elements must be present. The elements of the tort of negligence are mutually inclusive. 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. The test to be applied when establishing a duty of care is the foreseeability test. This test was laid out by the court in Palsgraf v Long Island Railroad [4]. From the case, the court stated that where the defendant was not aware of the risk then there is no duty of care. Additionally, from the case, the court added that once the duty of care was established it was owed to everybody who might be affected by the risk. In Haley v London Electricity Board[5] the court opined that the plaintiff need not be in existence at the time the negligent act happened. The most important thing to be critically analyzed is whether the risk in question was foreseeable. The general rule in negligence cases is that a person’s acts or omissions should not cause harm to the other person. However under a duty of care, there exist certain exceptions that there is no general duty to help someone in need unless the helper has an undertaking, has a special relationship and the third instance is where the defendant is in charge of a thing. The second element of the tort of negligence is the breach of duty of care. 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[6] outlined that what is reasonable in one case is different from the other case, therefore; each case must be assessed on its own merit. Firstly, the magnitude of the risk as outlined in Hilder v Associated Portland[7]that the greater the likelihood of an injury to take place, the greater the caution required is one of the factors taken into account when assessing breach. The second factor is the importance of the thing and the third is the predictability of the precaution. The third element of 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 fact pattern represents medical negligence which a form of negligence occasioned by professionals in the medical line of duty. The three elements of negligence must be proven in this case for a claim of negligence to be sustained. The first is the duty of care. In such cases, the duty of care normally arises when a medical doctor when he accepts to take in a patient to treat them. He/she should take reasonable care of the patient to avoid a breach of his duty leading to damage or injury. 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. This led to injury which is death in the given case. The injury has a direct causal link consequently all the elements of negligence have been clearly established.
Conclusion
The family of Adi should institute a claim of negligence against the two doctors and the West Hertfordshire NHS Trust because the negligence of the doctors caused the death of their relative who was a patient at the hospital.
QUESTION 2
Duty of care is an element of the tort of negligence. Duty of care includes the legal duty or obligation of a duty holder to protect the duty bearer from harm’s way. Duty of care claims must indicate to whom the duty is owed and to what extent the duty extends. The courts in various cases 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 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 even when it is evident there exists no direct causal link or the link is so remote. The test applied in determining the duty of care is the foreseeability test.[8] Does this test consider was the risk foreseeable? Could the defendant reasonably comprehend that the risk occasioned could have occurred as a result of his acts or omissions? When proving negligence, one must prove that the person who performed the careless acts not only caused the actual injury but the legal cause or the proximate cause as well. In an unforeseeable type of harm, a defendant is not liable if the type of harm or injury that befell the plaintiff is not considered to have foreseeably flown from the acts or omissions of the defendant. Superseding acts that arise from the acts of a defendant relive any form of liability on the defendant because the chain of causation linking the defendant with the harm caused is subsequently broken by the superseding act.[9] Examples of superseding acts include acts of God, intentional torts caused by third parties as well as criminal acts of third parties. These acts relieve the defendant of any liability following his acts or omissions. However, several other superseding acts do not relieve the defendant of, any liability. These include harm caused by rescuers, the disease that arises as a result of the injured person getting injuries from the acts or omissions of the defendant, and third, ordinary negligence occasioned by doctors or presumably medical care givers. Undertaking, special relationship, control of a third party who causes damage, and where a defendant is in charge of a thing are exceptions to the general rule that there is no duty to help a person in need. From the given set of circumstances in the fact pattern, Dr. Khan a medical doctor owes a duty of care to the patient. Arguably, when a medical doctor undertakes to take up a patient’s case, automatically a duty of care arises. When exercising the duty of care, the doctor is under an obligation to 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. Dr. Khan breached his legal duty of care and Nadia suffered an injury as a result. The doctor is therefore liable for the injuries Nadia sustained. When a person suffers damage or injury as a result of the careless or rather negligent acts of the defendant, the person should recover damages against the defendant for the injury occasioned.
Conclusion
Professionals more so doctors owe a duty of care to their patients.[10] A duty to put the patients’ interest first and to 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.
[1] Percy H Winfield, The history of Negligence in the law of Torts (1926) 42 Law Quarterly Review. 184.
[2] Donoghue v Stevenson (1932) AC 562.
[3] Shauna Van Praagh, Palsgraf as Transsystemic Tort Law (2011) 6 J. Comp. L. 243.
[4] Palsgraf v Long Island Railroad (1928) 284 N.Y. 339.
[5] Haley v London Electricity Board (1965) AC 778.
[6] Roe v Ministry of Health (1954) 2 WLR 915.
[7] Hilder v Associated Portland Cement (1961) 3AII ER 709.
[8] David S Edgar Jr, Foreseeability and Recovery in Tort (1934) 9 John’s Law Review 84.
[9] Laurence H Eldredge, Culpable Intervention as Superseding Cause (1937) 86(2) University of Pennsylvania Law Review and American Law Register 121-137.
[10] A Torda, How far does a doctor’s duty of care go? (2005) 35(5) Internal medicine journal 295-296.
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