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Obligations Law - Lecture 7 - Professional Negligence
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Lecture notes for the Obligations 2 (Delict) module. Author achieved a first-class grade for the module.
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Lecture 7 – Professional NegligenceGeneral Principles
Negligence exists where a person allows harm to occur to another in circumstances where he ought
to have taken precautions to prevent its occurrence.
For any successful action for damages in negligence three conditions must be met:
1. The duty of care must be established - the neighbour principle derived from Donoghue v
Stevenson 1932
2. The standard of care expected is that of “the hypothetical reasonable man” in the position
of the defender.
3. Negligence must be proved. This may be difficult to establish where the conduct of the
defender involved the exercise of professional judgement.
Exercise of Professional Judgement
• It must be shown that the careless act or omission by the defender caused the harm to the
pursuer.
• Often there will be several courses of action open to the defender.
• If the defender adopts a course of action which results in harm, he will not be liable
unless no reasonable professional person in his position would have chosen that
option.
• The test for professional negligence is therefore very high.
• To prove that a professional has breached the duty of care, it must be shown that no
reasonable professional in the same circumstances would have taken those steps.
Medical Negligence
A professional will be judged by the standard expected of the ordinaryly competent professional,
rather than that of a reasonable person. The pursuer in a medical negligence action requires to show
that he is owed a duty of care, that the duty was breached and that the breach caused the harm.
Case illustrations
• Appropriateness of medical treatment in respect of suitability of needle used.
Hunter v Hanley 1955 SC 200
A patient who was injured said that the doctor had used an inappropriate needle for the
injection and it was the case that most doctors did not use that particular needle for that
particular form of injection. Hanley had made an unusual decision to use the particular needle.
The defender was able to show that there are other medical professionals who did use the
type of needle. No negligence arose because the doctor in the case was able to prove that a
doctor of ordinary skill acting with ordinary care would still have used that needle.
, Test for establishing medical negligence was whether the error was one that would not be
made by a “doctor of ordinary skill…acting with ordinary care.” Even if the pursuer can
establish that a responsible body of medical opinion regards the defender’s decision or
conduct as wrong, the defender will not be regarded as having been negligent if there is also
a responsible body of medical opinion which regards the defender’s decision or conduct as a
reasonable in the circumstances.
Bolitho v City and Hackney HA [1998] AC 232
2-year-old child admitted to hospital with breathing difficulties. A senior nurse had repeatedly
called for a doctor, but the doctor did not attend, and the child subsequently died. It was
accepted that the doctor had been negligent in failing to respond to the repeated calls to
attend the child, the doctor denied liability. The mother sued claiming that if the doctor had
attended and incubated the child, the child would have survived. The basis for the denial was
that the only intervention to save the life of the child was to intubate, but the doctor argued
that she would not have carried out that treatment. There was evidence from 8 medical
professionals, all of them distinguished.
The House of Lords held that no liability arose. The court observed that relying on a
respectable professional opinion would not always get you out of liability. The medical opinion
must be reasonable and logical.
• Consent: Sometimes the basis of a patient’s claim against a doctor is not that his treatment
was carried out negligently but that the doctor failed to make an adequate disclosure of the
risk inherent and that the patient has suffered as a result of the risk materialising.
Sidaway v Bethlem Royal Hospital [1985] AC 871
The plaintiff underwent surgery to relieve pressure on a nerve root. She had been advised to
the risk of the damage to a nerve root during the surgery. What the doctor did not explain
was that less than 1 % of cases can result in paraplegia which she did develop. Statistically it
was an unlikely event, but it happened to her and she wanted compensation. She said that
negligence arose as the doctor had not warned her that there was a potential danger.
The court said that on that basis negligence did not arise. Most doctors would not have
warned her for something that was of such low risk. A doctor acting on ordinary skill and care
would not have necessarily warned the patient of something that was so unlikely to happen.
“To decide what risks the existence of which a patient should be voluntarily warned and the
terms in which such warning, if any, should be given, having regard to the effect that the
warning may have, is as much an exercise of professional skill and judgment as any other part
of the doctor’s comprehensive duty of care to the individual patient.” (per Lord Diplock).
He is saying that the decision to warn a patient about this is a matter of professional
judgement.
• Professional negligence cannot be established by preference of one body of professional
opinion over another.
The courts are not equipped to decide what is appropriate for professionals of medicine. Not
in the position to second guess which professional judgement is the best.
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