Medical Negligence - Tort Law

Cases of medical negligence often arise from the fact that, as professional people, medical personnel held ready to give medical advice or treatment impliedly undertakes they are possessed of skill and knowledge for the purpose equivalent to any reasonable practitioner. Therefore, as to whether or not they are a registered medical practitioner, supported by Jones v. Fay (1865) 4 F & F 525, such a person who is consulted by a patient owes them a duty to exercise reasonable care and skill in diagnosing, advising and treating them, illustrated by the decision in Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, and them alone, according to the decision in AB v. Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB). As a result, a breach of this duty causing personal injury will support a claim for negligence by the patient and compensation for financial loss under the principle in the case of Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1963] 2 All ER 575.

However, an error of judgment will not necessarily amount to negligence unless it would not have been made by a reasonably competent practitioner acting with ordinary care judged against the current state of professional knowledge, supported by Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, or where there are differing and well established professional schools of thought, illustrated by Hughes v. Waltham Forest Health Authority [1991] 2 Med LR 155, CA. But then treatment will be held to be negligent if it cannot be demonstrated to the satisfaction of the court the body of opinion relied on is reasonable or responsible, according to Bolitho v. City & Hackney Health Authority [1998] AC 232, HL, unless it is shown - (a) there is a usual and normal practice; (b) the defendant has not adopted it; and (c) the course is one no professional of ordinary skill would have taken had they been acting with ordinary care, in keeping with Landau v. Werner (1961) 105 Sol Jo 1008, CA and the NHS Redress Act 2006. Nevertheless, inexperience is no defence so a junior staff member should always seek help from a more experienced staff member, supported by Wilsher v. Essex Area Health Authority [1987] QB 730, CA.

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