Negligence Towards Mike And Theresa

Introduction

This essay considers the liability of Bogside Hospital towards Mike and Theresa, who came to the hospital for medical attention. This essay will analyse the two situations with reference to the law on negligence.

The principal legal issue in this situation is whether Bogside Hospital is liable in negligence due to the failure of the doctor to examine Mike’s internal injuries, which included injury to his liver that was already damaged due to excessive drinking. The principles of tort of negligence are considered to answer this issue, particularly, with reference to causation and break in causation.

Negligence is defined in tort as breach of duty to take reasonable care to avoid acts or omissions that can be reasonably foreseen to harm another person. In the law of tort, negligence can be proved when the plaintiff shows that the defendant owed him a duty of care, a breach of the said duty, proximate cause and harm to the plaintiff. The standard of care is also relevant in this situation. Standard of care refers to the standard that the defendant was legally bound to adhere to. The Bolam test is to be applied in cases of standard of care owed by medical professionals to their patients. As per this test, the standard of care applicable to doctors is that which is normally followed in the profession by doctors similarly placed; thus, the doctor would be guilty of negligence if he breached the standard that is considered proper by medical professionals skilled in that particular area. Civil liability under the law of tort arises if the harm caused to the patient is attributable to the negligence of the doctor.

Coming back to the issue of duty of care, as per the judgment in Caparo plc, the plaintiff can refer to the three-stage test for proving that the defendant owed him a duty of care. This three-stage test is based on the reasonable foreseeability of harm by the defendant, a sufficiently close relationship between the defendant and the plaintiff and fairness in imposing the duty of care. If these three points can be proved by the plaintiff, then duty of care can be established. Breach of duty of care, would be breach of the standard of duty of care, which as discussed above, would require a medical professional to apply care to the situation as would have been exercised by a prudent member of the profession.

Coming to the point of causation, Factual causation relates to the proximity between the defendant’s act or omission and the harm caused to the plaintiff. In tort, the ‘but for’ test is used to establish causation, meaning that ‘but for’ the act or the omission of the defendant harm would not have come to the plaintiff. The ‘but for’ test becomes applicable also where more than one party may be responsible for the harm to the plaintiff. In such a situation, the ‘but for’ test can be applied by the courts for determining as to which is the party ‘but for’ whose action, the plaintiff would not have been harmed.

Causation can be broken by a novus actus interveniens, that is a new intervening act, which leads to further harm to the plaintiff. This new intervening act can be due to the fault or negligence of the plaintiff himself. There is also a duty to act with care on the person who has met with an injury as explained in the case of McKew, in which the plaintiff, injured in the leg due to the defendant’s negligence, met with further injury due to his own negligence. Therefore, if after having been harmed due to the act of the defendant, if the plaintiff also does some negligent leading to further harm, the ‘but for’ test is broken.

In medical tort cases, the courts use the ‘hook’ argument to establish if there is a link between the spread of a disease or deterioration of health with the conduct of the doctor, where even if breach of duty of care may lead to the spread of the disease, it cannot be taken to be the ‘hook’ on which an orthodox claim for consequential reduced life expectancy can be hanged. Where plaintiffs claim loss of chance of recovery due to the negligence of the doctor, it becomes incumbent on the court to consider where there was a chance that was lost; where the possibility of a cure through treatment is still uncertain, then the argument of loss of chance becomes weaker for an actionable tort.

Applying the principles discussed above, the liability of the hospital can be determined. In the first place, the harm to Mike is not attributable only to the hospital, but also to the Grumpy Badger Pub, as he took the fall outside the pub due to the negligence of the pub. Therefore, it may be argued that applying the ‘but for’ test, it is the pub that is liable for the harm to Mike as but for the negligence of the pub, Mike would not have been injured. Even if the hospital is taken action against by Mike, the ‘hook’ argument can be used by the hospital as even if breach of duty led to the further complications for Mike, these complications cannot be completely attributable to the breach. Mike was already suffering from liver damage due to excessive drinking and it is uncertain whether further examination of the liver would have helped him prolong his life beyond 30. Therefore, there is an uncertainty of the cure in this case, which means that Mike cannot claim lost chance as his liver was already damaged to a great extent. The hospital can even claim novus actus interveniens for break in causation as Mike was specifically informed by Wally that Mike should return home and rest. However, instead of resting, Mike went for a bicycle ride around Richmond Park and fell off his bicycle. Therefore, Mike’s irresponsible conduct after an injury may be claimed to have broken the chain of causation in this case.

The issue in this case is whether Bogside Hospital is liable for negligence for setting her broken arm wrong and for the trapped nerve, which may have possibly occurred due to the negligence in setting.

In order for tort to be actionable, the claimant should be able to establish, on the balance of probabilities, that the harm was caused due to the negligence of the defendant. If the claimant is not able to establish this on the balance of probabilities, then the court may not be able to hold the defendant liable for negligence. In Hotson, the claimant injured himself after a fall from a tree and the hospital failed correctly to diagnose and treat his injury, leading to permanent disability due to necrosis of the hip. The question before the court was whether it could be said that the necrosis was caused by the original injury, and the negligent failure to treat him immediately. The House of Lords held that the hospital was not liable for the necrosis as even on the balance of probabilities, it could not be said that correct diagnosis and treatment would have prevented the disability from occurring. Therefore, the plaintiff was not able to prove causation in the case.

In Gregg v Scott, the House of Lords followed the general approach laid down in Hotson, and held that even if misdiagnosis of the medical condition reduced chances of survival for more than 10 years from 42 per cent to 25 per cent, it could still not be proved on balance of probabilities that delay had deprived him of the prospect of a cure for his condition.

It has been noted that the reason Hotson failed to lead to damages for the claimant is that even if the right diagnosis had been made, there was a 75% evidence that necrosis would have still set in and there was an insufficiency of medical evidence that there was a 25% chance and not 75% chance for that to happen, leading to the failure in establishing liability of the hospital. In case of such uncertain medical opinion on the chances of an event, it is difficult to satisfy the claimant’s case on a balance of probabilities as seen in the case of Gregg v Scott, where the claimant who was suffering from non-Hodgkins lymphoma, on statistical evidence, had 25% chance of surviving for 10 years without treatment, and an increase to 42% if he got treatment. The majority judgment noted that as on the balance of probabilities, it could be said that the claimant was not going to survive for 10 years irrespective of whether he received the treatment, it would not be appropriate to award damages for loss of 17% chance in increasing the survival for 10 years.

Another case that may be considered here is that of Fairhaven, in which case the claimants had developed lung tumour through exposure to asbestos in their employment. However, the medical evidence indicated that lung tumour did not necessarily build up gradually (as in the case of being exposed to asbestos over a long period of time) but might be triggered suddenly. In other words, although it may be said that each day of exposure to asbestos increased the risk of lung tumour, it could not definitely be thought of as a contributory cause of the disease for holding a specific employer liable, in case there were successive employers. The decision in Fairhaven, was based on the reasoning that it may be unjust to require a defendant to pay damages to the claimant where there is no causal connection between the defendant and relevant injury to compensate the entire loss suffered by the claimant. In Wilsher, the claimant was unable to prove his case because there was uncertainty as to whether illness was caused by medical negligence or resulted from some other ‘background causes’, and there was no general agreement in science as to the point. Therefore, in the face of such uncertainty, the balance of probabilities did not favour a decision for making the defendant pay damages as the whole tort was not definitely attributable to the defendant.

Applying the principles discussed above to the present situation, the hospital can argue that on the basis of balance of probabilities, it can be said that the hospital is not liable to pay damages. In this case, Theresa slipped down the stairs at home and broke her arm, which was set incorrectly by Wally. There is an issue of a trapped nerve and whether the problem was caused by the fall, or the wrong setting of the arm, or some other factors that are not related to the fall at all. There is an uncertainty in medical opinion on this point. The dominant view is that there would have been a 40% chance of a trapped nerve occurring even if the bone had been correctly set and all doctors agree that the precise causes of trapped nerves are difficult to determine and may be attributed to a variety of factors not necessarily related to the fall. Therefore, on the balance of probabilities, it cannot be said that the issue of trapped nerve is definitely attributable to the wrong setting of the arm.

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List of Cases

• Barnett v Chelsea and Kensington Hospital Management Committee (1969] 1 QB 428
• Bolam v Friern Hospital Management Committee, [1957] 2 AER
• Caparo plc v Dickman, [1990] AC 605

Books

• Gregg v Scott [2005] UKHL 2 Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909 McKew v Holland & Hannen & Cubitts (Scotland) Ltd. (1969) 3 AER 1621 Sidway v Bethlem Hospital Royal Governors [1985] 1 All ER 643 Sparrow v Andre, [2016] EWHC 739 (QB) (QBD) Wilsher v Essex AHA [1988] AC 10
• Horsey K and Rackley E, Tort Law (5th Edn., Oxford University Press 2017)

Journals

• Hamer D, ‘‘Factual causation’ and ‘scope of liability’: What's the difference?’ (2014) 77(2) The Modern Law Review 155
• Stapleton J, ‘Cause in fact and the scope of the liability for consequences’ (2003) 119 LQR 388 Stapleton J, ‘Loss of the Chance of Cure from Cancer’ (2005) 68(6) The Modern Law Review 996 Morgan J, ‘Lost Causes in the House of Lords: Fairchild v Glenhaven Funeral Services’ (2003) 66(2) The Modern Law Review 277 Neuberger, ‘Loss of Chance and Causation’ (2008) 24(4) Journal of Professional Negligence 1