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Professional/Clinical Negligence (Background/terminology (Rules apply to…
Professional/Clinical Negligence
Background/terminology
Rules apply to all professionals - clinical negligence is focussed on specifically because of the number of cases in this area and because the loss is personal injury
Clinical and medical negligence are used interchangeably
The rules and structure for general negligence apply
Public are no longer deferential towards the medical profession and expect to be cured - medical professionals are worth suing because they will be insured - insurance industry vigorously defend claims in this area
Losses suffered as a result of medical negligence are likely to be more serious
There are disputes within the profession as to what constitutes proper practice
Courts are aware of the funding problems of the NHS and consider the relevant policy concerns associated with this - e.g. defensive practices, tax payers funding litigation etc.
Who to sue
1) The medical professional at fault
2) The hospital/health authority vicariously for the medical professional's negligence if they are an employee
Cassidy v Ministry of Health (1951)
3) The hospital/health authority directly if they have been at fault themselves
Bull v Devon (1993) - failure to provide doctors or services of a sufficient level of competence can be a breach of duty of care, as can putting a junior doctor in a situation with little or no supervision - will distinguish between policy and operational failures
Loss - duty is for personal injury only
Pure economic loss not allowed - Kapfunde v Abbey National (1998)
Wrongful life
Not allowed - McFarlane v Tayside Health Board
Rees v Darlington Memorial (2003) - exceptional case - blind woman - awarded sum in recognition of harm done but stressed was not compensatory
Duty of care
Duty between doctor and patient is well established - Cassidy v Ministry of Health (1951)
Duty owed by emergency services, especially ambulances - Kent v Griffiths (199)
Funding issues