Medical Negligence Sample essay PDF

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Medical Negligence Sample essay...

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Troy Question and Sample Answer

This is to be used for question 2 of seminar 6. Read the set of facts involving Troy below and then the sample answer. How would you improve on this answer? Comment – note that the length of this sample answer is broadly equivalent to half an answer to one of the January questions. Although there are a number of areas where this answer could be improved upon, it is not a terrible answer by any means. A good number of relevant points have been made, the answer gets off to a good start, the writing is fairly clear and the structure is good. You may therefore find the positive features of this answer useful as a guide to your own work. See however below for some of the areas where the answer might have been improved.

Troy, 21 was merrily celebrating his graduation day when he jumped over a bollard and tore the tendon in his knee. Troy was admitted to Livingston Hospital and was under the care of the newly qualified Dr Nelson. He underwent routine knee surgery to repair his tendon and the operation went well. The day after surgery whilst reCovering, Troy began to complain he had started to feel rather unwell. The nurse noted Troy had deteriorated and had developed a high temperature, high pulse rate and had low blood pressure. She called Dr Nelson and suggested he should come and review the patient, as she was concerned about Troy’s deterioration and suspected he was showing obvious signs of bacterial infection. Dr Nelson failed to attend to Troy as the hospital was under staffed and he was busy attending other patients in the day clinic, some of whom had waited months for an appointment. Dr Nelson finished his shift two hours late and went home exhausted having failed to see Troy. The next day, the attending doctor informed Troy he had developed a serious bacterial infection necessitating amputation of his leg. Advise Troy.

Sample Answer Troy may have a claim in negligence against Dr Nelson (N) and Livingstone Hospital (LH). It should also be noted that LH may be vicariously liable for negligence by N (Gold v Essex CC). To prove a case in negligence, Troy must establish on the balance of probabilities that he was owed a duty of care, must demonstrate a breach of that duty and that the breach caused the amputation. N would owe a duty of care to Troy as there is a clear doctor: patient relationship (Robinson v Chief Constable for South Yorkshire) and LH would owe a duty of care also ( Barnett v

Chelsea). Whilst proving a duty of care would not be problematic, a far more contentious issue would be whether the duty had been breached. As a doctor, N would be required to meet the standard of the ‘reasonably competent doctor’ skilled in that particular art ( Bolam), which in N’s case would be adjusted to that of the reasonably competent knee surgeon ( Maynard). N’s inexperience as a doctor would not be taken into account to lower the standard of care ( Wilsher/FB), he would be expected to fulfil the standard of a reasonable competent and qualified knee surgeon. Further, the doctor’s conduct must be ‘logical’ and involve a weighing of the risks and benefits (Bolitho). Brazier and Miola have argued that this case triggered a ‘velvet revolution’ and not a ‘bloodbath’. In the case of Marriott a doctor was found not to be logical in failing to respond to a small risk of catastrophic harm, therefore N’s failure to check on his patient is negligent as there was a small risk of very serious harm if the doctor did not provide the necessary aftercare to his patient. This is not the behaviour of a reasonably competent surgeon. The hospital is also negligent in failing to have sufficient staff to attend to the number of patients (Bull v Devon), therefore the hospital is vicariously liable for the negligence.

To prove causation, patients must usually prove that ‘but for’ the negligence, they would not have suffered the damage. T must prove on the balance of probabilities that ‘but for’ Dr N’s breach, he would have avoided the amputation (Barnett). It is not clear on these facts whether Troy’s amputation would have been avoidable if he had received prompt care and the possibility of bacterial infection had been acted upon sooner. In Barnett, the poison induced death would have happened even if the patient had been examined, therefore the negligent omission to treat did not cause the harm and similarly here, the infection could have happened in any event. Troy could, however, succeed by demonstrating that the negligence ‘materially contributed to the damage’ (McGhee v NCB) which was the case here. Alternatively, the courts will sometimes employ a relaxation of the ‘but for’ test where the patient struggles to prove causation, thus it may be enough for T to show that the negligence by N ‘materially increased the risk’ of harm ( Fairchild). Failure to attend Troy after surgery would likely have increased the risk of harm here and therefore causation is established. The nurse may have been contributorily negligent in failing to call another doctor when Dr N did not arrive (Pidgeon v Doncaster)....