Tort 12 - Breach of Duty of Care 4

In Wilsher v Essex Area Health Authority (1988) a premature baby was given too much oxygen by a junior doctor and as a result the baby suffered from a condition which affected his retina and rendered him blind. The parents sued and the court held that a junior doctor is under the same duty as any other competent doctor and found for the parents.

In Newman & Others v United Kingdom Medical Research Council (1996) almost 2,000 children who suffered from growth disorders were treated with human growth hormones and as a result many of them died from Creutzfeldt-Jakob disease (CJD), a rare, degenerative, invariably fatal brain disorder, which affects about 1 in a million worldwide. The researchers were held to be liable and experiments should have ceased or stopped the moment the researchers realized that the treatment was fatal.

In Mansfield v Weetabix (1997) the defendant crashed his lorry into the plaintiff’s shop and the plaintiff sued for the resulting damage. The defendant though unknown to him at the time suffered from pancreatic tumor which resulted in hypoglycemia. It was held that the standard that was imposed on the defendant was that of the ordinary and competent driver and it was found that the defendant had complied with the standard and therefore he was not liable. To do otherwise would be to impose strict liability.

 In Bolitho v City & Hackney Health Authority (1997) a 2-year-old child was admitted for serious brain damage and at the time of admission the hospital staff in attendance paged the doctor but because her pager was faulty the doctor was unable to attend to the child and the child died as a result of respiratory failure.

The mother brought an action in negligence against the hospital contending that, had the child been intubated the child would have survived. The doctor argued that even if she had attended to the case she would not have had the child intubated and her decision was supported by other doctors. The court in line with the decision in Bolam v Friern Barnet Hospital Management Committee (1957) found in favor of the doctor in that as long as there is a professional school of thought that concurs or agrees with the treatment that was administered then the courts would not impose any liability on the doctor.

Under most circumstances or in most instances it is difficult to succeed in a negligence claim against a medical practitioner or a doctor or a surgeon unless the negligent act was glaringly or blatantly obvious like in the case of Mahon v Osborne (1939) because in the interest of public policy doctors are allowed to take a certain amount of risk and as long as the risk is justifiable they won’t be held liable.

The flexibility granted to medical professionals however does not extend to nurses or researchers.

In Wisniewski v Central Manchester Health Authority (1998) the defendant a midwife failed to show the doctor the results of a scan that indicated that the child the mother was carrying had some complications and as a result the child was born with cerebral palsy. The defendant was held to be liable.

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