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Chapter 13

Professional and Clinical Negligence

Learning Outcomes

After reading this chapter and the reference material you should be able to:

1. explain what is meant by professional and clinical negligence;

2. have an awareness as to the role of a professional negligence action in both determining the duty of care owed by professionals and the standard of care they must exercise in practice;

3. understand why there has been a growth in such claims;

4. define, understand and be able to apply the standard of care owed by professionals;

5. critically evaluate the role of the courts and professions in determining the standard of care;

6. explain how the courts determine both the level of skill to be exercised by professionals and the state of knowledge they are expected to possess;

7. consider how the rules in both causation and remoteness apply in professional negligence claims;

8. determine how the issue of proof and, in particular, the Doctrine of Res Ipsa Loquitur, is utilised within professional/clinical negligence claims.

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13.1 Introduction

The aim of this chapter is to provide an introduction to professional personal injury claims and, in particular, clinical (formerly medical) negligence. The term professional negligence refers to negligence arising within a professional sphere such as the activities of accountants, lawyers, surveyors and architects. Clinical negligence refers not only to the negligence of doctors but to all the related medical professionals such as nurses, dentists, pharmacists and physiotherapists. The basic litigation required for all these claims is the same; the main difference lies in establishing whether a particular professional duty of care has been breached.

13.2 Functions of malpractice litigation

There are several functions behind professional malpractice claims including:

1. Such claims make professionals more accountable for their actions.

2. The threat of litigation ensures that each profession maintains as high a standard of practice as possible within their area.

3. Explanations are provided when procedures go wrong.

4. Compensation and/or an apology are given to any wronged parties.

5. A degree of retribution is provided to the wronged party.

13.3 Reasons for the growth in professional negligence claims

A number of reasons can be given for the growth in such claims. Certainly there has been a profound change in the relationship between the professional and his/her client, particularly so within the clinical sphere. Whereas there was once an automatic deference and acceptance by clients, often there is now open scepticism and a willingness to challenge the authority of such professionals. Much of this ethos has come from America. Alongside this, within the medical world there has been a tremendous growth in both technology and the availability of clinical drugs for treatment. This has had a significant effect on the attitudes of ordinary people in terms of their expectations as to the results of any treatment. Many (falsely) assume that the outcome of medical treatment is always going to be successful and on the occasions when things do go wrong, answers are demanded.

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ACTIVITY POINT

What areas of medical practice do you think attract the most litigation? Can you give reasons for your answer?

13.4 The duty of care

It is well established within the professional/client relationship that a duty of care exists. It is clear from many authorities that a doctor owes his/her patient a duty of care in the normal course of events. For example, in Cassidy v Minister of Health [1951] 2 KB 343 Lord Denning clearly stated that such a duty existed, and in R v Bateman (1925) LJKB 791 Lord Hewitt CJ stated:

If a doctor holds himself out as posessing special skill and knowledge, and he is consulted, as possessing such skill and knowledge, by or on behalf of the patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his discretion and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward.

It should not, however, be assumed a doctor always owes a duty of care. For example, if a doctor provides advice for an occupational health report, there is no direct doctor-patient relationship and a duty to prevent economic loss does not exist. See Kapfunde v Abbey National plc (1998) 46 BMLR 176. In an emergency, it would appear from the decision of Barnett v Chelsea & Kensington HMC [1969] 1 QB 428 (discussed in Chapter 7), that once treatment has been undertaken by a medical professional, a duty of care is owed. This obviously applies mostly to those entering Accident & Emergency Departments. Also note the National Health Service (General Medical Services) Regulations and the General Medical Councils Guidelines to Good Practice. Note that the duty to prevent patients harming themselves and/or others and the rights of third parties were covered in Chapter 3. See Osman v Ferguson [1993] 4 All ER 344, Clunis v Camden & Islington Health Authority [1996] QB 978 and Goodwill v British Pregnancy Advisory Service [1996] 7 Med LR 129. It would appear that the courts do not share the same jocular approach to the ability of doctors to write clearly as that of the general public. In Prendergast v Sam & Dee Ltd [1989] 1 Med LR 36 a doctor was found to be jointly liable, along with a pharmacist, for the incorrect dispensing of a

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drug. This had occurred, largely, because the doctors handwriting could not be deciphered. Likewise, many authorities discuss the duty of care owed by a solicitor to his/her clients (see Ross v Caunters [1980] Ch 297 and White v Jones [1995] 2 WLR 187 both cases in Chapter 3). From your reading in Chapters 2 to 5, you will have come across numerous examples in which a professional duty of care was established by the courts. Health Authorities/Trusts have a duty to provide the services of medical professionals with sufficient skill and experience. In both Wilsher v Essex Area Health Authority [1988] AC 1074 and Griffiths v Kent Ambulance Service (1999) Lloyds Rep Med, the courts have stated that a failure to provide doctors or services of a sufficient level of competence could be regarded as a breach of the duty of care (also see Bull v Devon AHA [1993] 4 Med LR 117). However, this duty of care does not necessarily extend to the Secretary of State for Health. In the highly emotional case of R v Cambridge Health Authority ex p Child B (a minor) [1995] 6 Med LR 250, a local health authority declined to continue further experimental treatment on a young girl dying of myeloid leukaemia. The cost of the treatment was estimated at 75,000 whilst the chances of success were between 10% and 20%. As Sir Thomas Bingham MR stated, to impose an absolute duty on a health authority to provide every treatment available would be unreasonable. Clinical decisions as to treatment should be for medical professionals and not the courts.

13.5 Breach of the duty of care

In professional negligence cases the reasonable man test (as illustrated in Nettleship v Weston [1971] 2QB 691, the learner driver case) is slightly modified. In order to show a breach of duty, the claimant must show that the doctor (for example) has taken a course of action, which would not have been acceptable to any reasonable body of medical opinion. The test utilised was actually developed in relation to clinical negligence but has been subsequently accepted to cover anyone exercising professional skills. This principle has become known as the Bolam test after the case Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (in Horsey & Rackley at pages 206-7). The case concerned a claimant requiring treatment for depression. At the

time there were two bodies of competent medical opinion as to the

procedure to be used in giving electro-convulsive therapy (ECT). Some

advocated the use of relaxant drugs whilst other psychiatrists did not. In the

event, no such drugs were used and the claimant suffered a fracture of the

pelvis. It was admitted that if the drug had been used then the risk of the

fracture would have been excluded. The test to determine a breach was

stated by McNair, J as follows:

The test as to whether there has been negligence or not is not the test of the man on top of the Clapham omnibus because he has a special skill. The test is

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the standard of the ordinary reasonable man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of medical opinion which takes the contrary view.

This judgment was later approved and adopted by the Lords. In effect, this means that if a defendant can demonstrate that he has acted in accordance with a reasonable body of opinion, they will not have breached their duty and, therefore, there is no liability. Professionals are judged by the standard of the ordinary skilled man exercising and professing to have special skills. This does not necessarily mean possessing the highest level of skill; merely the ordinary level of skill associated with other competent persons practising within that area (see Level of Skill at 13.6). The courts make reference to professional guidelines in order to determine the standard required. A justification for the Bolam rule was given by Lord Scarman in Maynard v West Midlands R.H.A. [1985] 1 WLR 634. He stated:

Differences of opinion exist, and continue to exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other; but that is no basis for a conclusion of negligence.

ACTIVITY POINT

As a pivotal case, you should read the full judgment of Bolam in the law reports. Do you think that this approach, to determining the professional standard of care, is compatible with how the courts decide the standard generally?

In Maynard v West Midlands R.H.A. [1985] 1 WLR 634 the House of Lords refused to become entangled in choosing one professional opinion over another. In such situations, the Bolam test states that a doctor has to act in accordance with a practice that is accepted by a reasonable body of medical opinion. It is perfectly valid to have conflicting professional opinions. Many subsequent cases have confirmed the Bolam Test; often in relation to other issues. One issue examined by the courts is the level of information as to the risks a patient should expect to be told about. In Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] AC 871 the claimant, who was suffering from pain in her neck and shoulders, was advised by her surgeon to have an operation on her back. The surgeon failed to warn her that there was a very small risk (around one per cent) of damage being done to her spine. The patient consented to the operation

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and it was performed with all due care and skill. However, the risk of injury materialised, leaving the patient disabled. The claimant claimed that the surgeon had been negligent in failing to disclose the risk. The House of Lords, applying the Bolam test, held the surgeon not liable. The surgeon had conformed with a responsible body of medical opinion which would not have warned of the risk and thus escaped liability. However, their Lordships were careful to point out that this did not mean that the medical profession had complete control over the practice of disclosure. Lord Bridge regarded a ten per cent risk of stroke arising from a medical procedure as a situation whereby:

A disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it.

Lords Bridge and Templeman, in Sidaway, placed great emphasis on the fact that Mrs Sidaway had not specifically asked the surgeon about the risks of the operation. Had she done so their Lordships were of the view that the doctor would be obliged to answer both truthfully and fully as the questioner requires. This principle was applied in Chester v Afshar [2004] UKHL 41. The claimant, who was considering an operation on her spine, specifically asked her consultant about the risks inherent in the operation. The surgeon failed to disclose the very small risk of paralysis resulting from surgery. After the operation, the claimant suffered severe nerve damage, which caused paralysis in one leg. The House of Lords found the defendant to be in breach of duty for failing to warn of the risk, however slight it might be. The courts will consider the emotional state of a patient when being told the medical risks involved (Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118). The Bolam test has also been applied to the standard of handwriting on a prescription (Prendergast v Sam & Dee Ltd, The Times, 24 March 1988); the use of alternative medicine (Shakoor v Situ [2000] 4 All ER 181) and experimental medicine (Simms v Simms [2003] 1 All ER 669). In Whitehouse v Jordan [1980] 1 All ER 650, a senior registrar performed a Caesarian section after unsuccessfully trying to deliver the child by forceps. He had pulled on the baby six times over a 25 minute period. The Court of Appeal reversed the trial judges decision of negligence. A distinction had to be made between an error of judgment and actual negligence. As Lord Fraser stated:

Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man with ordinary care might have made, then it is not negligence.

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One commonly asked question is exactly what constitutes a reasonable body of opinion? What is clear is that such a body does not have to represent the majority of opinion, merely an acceptable body. In De Freitas v OBrien and Connolly [1995] 6 Med LR 108 the body of medical opinion (concerning a particular medical procedure) consisted of 11 consultants out of over 1000.

ACTIVITY POINT

Read the case of Sidaway in full. Do you think the Lords adopted the correct approach as to the level of risk that should be disclosed to patients? How do you think the decision in Pearce v United Bristol Healthcare NHS Trust (1998) 48 BMLR 118 has modified Sidaway?

13.5.1 Criticisms of Bolam

Many criticisms have been made concerning the Bolam Test including:

1. It is generally weighted too heavily in favour of the (defendant) professions.

2. It provides yet another means by which professions protect themselves. (All professions are a conspiracy against the laity per G.B. Shaw).

3. The rule allows the professions to determine their own standards and codes of practice. Such standards would appear to be only exceptionally reviewable by the courts. As Lord Scarman famously stated in Sidaway (above), In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment.

4. The Bolam Test allows standards to be set too low. Treatments, which are on the boundaries of acceptability, still meet the general standard of care. In fact, in Bolam itself, the non-use of restraints was generally frowned upon on the basis that there was too high a risk of fracture. Many academic articles, at the time, confirmed this fact.

5. What is a reasonable body of opinion within a profession and how many persons constitute such a body? As such, no precise guidelines have been given (but note De Freitas (above)).

6. The Bolam Test is said to be descriptive (ie based on what is actually done) rather than normative (ie what ought to be done) which is the basis for general claims in negligence.

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13.5.2 Challenges to the Bolam Test

The challenges made to the Bolam Test can be categorised into three questions:

1. Can a judge make a choice between different bodies of medical or professional opinion?

Authorities appear to indicate that a judge can initially decide whether a specific body of opinion is reasonable, though such a power would only rarely be exercised (see Maynard above). In Lybert v Warrington Health Authority, The Times, 17 May 1995, a warning about the possibility that a sterilisation operation may fail was held to be inadequate despite it representing standard practice. Likewise, in Thomson v James and Others (1996) 31 BMLR 1, 3 April 1996, a GP failed to observe government advice about informing parents to use the MMR vaccination on their children; a child became brain damaged as a result. Here the doctor was found to be negligent for failing to follow standard practice as set by the Department of Health.

2. When will the courts state that a deviation from standard professional practice is to be regarded as negligence?

Here there appears to be different approaches adopted depending upon whether the case involves the medical profession or other professions. It is clear that much deference is given to medical opinion, even if such opinions clearly deviate from the norm. With other forms of professional practice this is less so. Likewise, it is clear that the courts do not simply look at the majority opinion. In Bolam itself, the practice adopted by the defendants was said to be obsolete but it was still not classified as negligence. As we have already seen in De Freitas (above), despite evidence that only 11 out of 1000 surgeons would have carried out a particular surgical procedure in the manner in question, the court still accepted such a small percentage of opinion was still reasonable. It is arguable that with the proliferation of Codes of Practice, Guidelines and Protocols, more emphasis will be placed on standard practice in the future. Likewise, the establishment of the National Institute for Clinical Excellence (NICE) on the 1st April 1999 has already lead to national criteria and standardisation as to the treatment of certain conditions.

3. How is a reasonable body of medical opinion determined?

In many Commonwealth jurisdictions the Bolam Test has either been radically modified or rejected altogether. In the Australian case Rogers v Whittaker (1992) 67 ALJR 47, Mr J. Gaudron in the High Court, gave a very powerful rejection of the test. The House of Lords had the opportunity to re-assess the test in Bolitho v City & Hackney Health Authority (1997) 39 BMLR, (HL). The claimant was a two-year-old boy who had suffered brain damage following a cardiac arrest; this itself caused by his bronchial passages becoming blocked. The defendants accepted that the doctors failure to attend had been negligent. The question for the House of Lords was one of causation, ie did the defendants omission cause the claimants injuries. The defendant Health Authority argued the But For Test (see Chapter 7) and this was accepted by the court, ie the doctor would not have intubated the patient had she arrived earlier anyway. In addition, the question arose as to whether a reasonable doctor would have intubated in such circumstances. In other words, that the doctors failure to intubate was,

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in itself, negligent? Expert evidence was divided and it was argued by the defendants that Bolam applied. The House of Lords, however, stated that Bolam was not conclusive. The court could inquire whether a body was reasonable or responsible and as Lord Browne Wilkinson stated:

These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendants conduct, the defendant can properly be held liable for negligence...In my judgment that is because, in some cases, it cannot be demonstated to the judges satisfaction that the body of opinion relied upon is reasonable and responsible.

In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risk and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

ACTIVITY POINT

Do you think that the statement given in Bolitho, with regards to the Courts being the final arbiters of what is a reasonable body of opinion, is satisfactory?

According to Professor Andrew Grubb, the judgment in Bolitho appears to establish a three-fold review of expert evidence:

1. Have the experts directed their mind to all the relevant details; and,

2. Have they applied a logical, sensible and rational process in reaching their conclusions; and,

3. Is their decision defensible as being reasonable?

The first two questions are concerned with the decision making process; the last question the substance of the decision itself. On the facts of the case, the two potential scenarios were both logical and defensible. In fact, Lord Browne-Wilkinson did acknowledge that it would only be in rare or exceptional cases that judicial intervention could be justified. He stated: it will seldom be right for a judge to reach the conclusion that views held by a competent medical expert are unreasonable. It is clear, however, that Bolitho has strengthened the courts role in respect of such litigation. Clinical judgment will rarely be declared unreasonable or irrational but the option by the court to do so is there.

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There are some signs that the approach in Bolitho is being more widely adopted. See Marriott v West Midlands RHA [1999] Lloyds Rep Med. 23.

13.6 The level of skill

As a rule those persons learning skills are required to exercise the same standard of care as people already claiming to have such skills. As with learner drivers (Nettleship v Weston [1971] 2 QB 691), trainee experts such as surveyors, lawyers, accountants and doctors, etc, must demonstrate the same level of skill in exercising their profession as those already proficient in that skill. We have already considered the standard of care owed by a professional vis a vis trainees and juniors in Chapter 6. Suffice to say, being a junior or novice provides no defence in a negligence claim. A professional, like a doctor, must meet the standard of care expected of his rank/post. The leading authority on this point with regards to clinical negligence is Wilsher v Essex AHA [1986] 3 All ER 801 in which a junior doctor placed a catheter into a vein rather then an artery leading to an excess of oxygen in the young patient and, it was argued, subsequent blindness. The Court of Appeal dismissed the argument that a lower standard of care had to apply to those training within a profession. As Glidewell LJ stated, in applying the Bolam Test a uniformed standard of care had to be adopted otherwise: .inexperience would frequently be urged as a defence to an action for professional negligence. However, the Court did go on to state that a junior doctor would not, necessarily, be in breach if he or she were to seek advice from a more senior/experienced colleague (as was, in fact, the case in Wilsher). Liability, in such cases, would then fall upon the more senior doctor for a lack of supervision. According to Bull and Another v Devon AHA [1993] (above) potentially, a Health Authority could be liable for putting a junior doctor in a situation with little or no supervision. With regards to the standard expected from consultants see Ashcroft v Mersey RHA [1983] 2 All ER 245.

ACTIVITY POINT

Read Lord Browne-Wilkinsons statement in Wilsher. In your own words, paraphrase the legal justification he is making for his decision.

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13.7 State of knowledge

As we have previously explained when looking at the general principles of negligence, the courts will not expect a reasonable person to anticipate unknown risks (Chapter 6). Unforeseeable risks can obviously not be anticipated and, therefore, failing to guard against them will not be regarded as negligence. As you will see when we consider product liability, this is often referred to as the State of Art or Developmental Risk defence and is probably best illustrated in Roe v Minister Of Health [1954] 2 QB 66. Here the claimant suffered permanent paralysis from the waist down having been injected with a spinal anaesthetic called nupercaine. The nupercaine was traditionally stored in glass ampoules. The ampoules were kept in a phenol solution in order to keep them disinfected. Unknown to anyone, minute invisible cracks had formed in the ampoules, which had allowed the phenol to contaminate the nupercaine. Although this evidence was professionally doubted, it was accepted at trial. It was held that the defendants could not have guarded against such an event happening on the basis that it was unforeseeable and, therefore, they escaped liability for negligence. Obviously each case will turn on its own facts and, therefore, there may be cases where the risk of harm can be appreciated. In N v United Kingdom Medical Research Council; Sub Nom Creutzfeldt Jakob Disease Litigation [1996] the court held there was negligence in failing to carry out a full clinical appraisal with the use of Human Growth Hormone (HGH) and its causational relationship with Creutzfeldt Jakob disease. Such a link had emerged from CJD cases from 1977 onwards. Despite what many might believe, experts are not expected to know every new idea, practice or latest developments within their specialism. As McNair J, stated in Bolam:

It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

In Crawford v Charing Cross Hospital, The Times, 8 December 1983, the claimant suffered Brachial Palsy whilst having a blood transfusion during surgery. His argument was that the anaesthetist should have been aware of such a risk from an article in the Lancet published six months earlier. The Court rejected the claim for negligence. It would be both impractical and unrealistic to expect a professional to know every new development in his/her field at any given moment in time. It is certainly arguable that this situation may well change with the constant development in modes of communication such as on-line databases (see above). An obvious lapse of professional standards will, however, occur if a professional simply overlooks a well-known procedure or technique. As we have already seen in Chapter 3, in White v Jones [1995] 2 AC 207 a solicitor was found negligent in delaying the drawing up of a will with the result that beneficiaries were excluded from the provisions in an estate.

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13.8 Proof of negligence and causation

Two of the principal reasons why many professional negligence cases fail to succeed are, firstly, providing actual proof or evidence of negligence and, secondly, the difficulty in establishing causation. It is for the claimant to provide evidence of the negligence on the balance of probabilities. The assessing of such evidence is often a difficult task for the claimant especially in clinical negligence claims. Occasionally the Doctrine of Res Ipsa Loquitur (the situation speaks for itself) may assist (see Chapter 6). In certain cases the courts may make a rebuttable presumption that there has been negligence and it is for the defendant to demonstrate the opposite. Obviously this can greatly assist the claimant. The criteria for this doctrine was laid down in Scott v London & St Katherines Docks [1865] 2 HxC 596. In Cassidy v Minister of Health [1951] 1 All ER 575 it was held that a patient who went into hospital for an operation to correct two stiff fingers, but left with four stiff fingers, could utilise the doctrine. There must have been some negligence by the medical authority at some point. Also see Mahon v Osborne [1939] 2 KB 14 (a swab left inside a patient) and Ratcliffe v Plymouth & Torbay Health Authority [1998] Lloyd Rep Med. 162 (CA). Despite the argument that Res Ipsa Loquitur should apply in the majority of clinical negligence cases (satisfying all the relevant criteria) the courts have been reluctant to utilise the Doctrine. Lord Denning in Hucks v Cole [1968] 112 SJ 483 stated that it should only be used in the most extreme and obvious of cases. Likewise, in Bull v Devon Area Health Authority [1993] 4 Med LR 117, Mustill LJ went so far as to doubt if res ipsa loquitur could ever assist in clinical negligence cases if all the facts be before the court. Factual causation is established by the but for test; but for the defendants action, would the victim have suffered the injury anyway. A clear illustration of this can be seen in the case of Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 4282. A night watchman attended the casualty department of a hospital with claims of vomiting and stomach pains. The doctor failed to examine him but instructed one of the nurses to send him to his GP. In the event, he died of arsenic poisoning. It was accepted that the doctor had been negligent; the question for the court was whether this negligence actually caused the death. Utilising the but for test the court held it had not. The man would have died anyway, regardless of any examination by the doctor. Unfortunately, the patient had arrived at the hospital too late for any antidote to take effect. The defendant was, therefore, not liable (despite the hospital admitting the existence of a duty and that such a duty had been breached by the doctor). In Wilsher (above) there were 6 possible causes of the Retrolental Fibroplasia (blindness) and excess oxygen was just one of these. The burden of proof had not been satisfactorily discharged by the claimant. In a more recent case of Bailey v Ministry of Defence [2008] EWCA Civ 883, however, the courts have shown that in exceptional circumstances they

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are prepared to depart from the strict application of the but..for test. The respondent had a cardiac arrest and brain damage after choking on her vomit. The judge had found that the physical cause of the cardiac arrest was the appellants weakness and inability to react to her vomit. This weakness was caused partly by the appellants lack of post-operative care and partly by a non-negligent cause - the pancreatitis from which she had been suffering. In finding for the respondent the Court of Appeal held:

In a case where medical science could not establish the probability that but for an act of negligence the injury would not have happened but could establish that the contribution of the negligent cause was more than negligible, the but for test was modified, and the claimant would succeed. The instant case involved cumulative causes acting so as to create a weakness and thus the judge had applied the right test and was entitled to reach the conclusion he had reached.

It should be noted that in this case, as in previous exceptional cases such as Fairchild v Glenhaven (2003) 1 AC 32 and Bonnington Castings Ltd v Wardlaw (1956) AC 613, it was not possible to scientifically prove the contribution made by the negligence so a departure of the but..for test was used to achieve justice. It is likely that the strict application of the but..for test will still be used in the majority of cases involving medical negligence. It is not always clear what would have happened but for the defendants negligence. This was the situation in Chester v Afshar (above). The defendants argued that causation could only be proved if the claimant could show that, had she been warned of the risk, she would never have consented to the operation. As it was not possible to say what the advice would have been or how she would have responded to it, the defendants argued that causation could not be proved. The House of Lords disagreed. The House of Lords accepted that it was very difficult to prove causation on conventional principles, and said that this was a case where legal policy required a modification to the normal approach to causation. To find otherwise, in the view of their Lordships, would render meaningless the duty of care a surgeon owes to his patient to warn of any risks associated with an operation. On policy grounds therefore, the test of causation was satisfied and the claimant won her case. The courts took a similarly flexible approach in Wright (A Child) v Cambridge medical Group (A Partnership) [2011] EWCA Civ 669. The defendant, a GP, negligently failed to refer a child claimant with a bacterial infection to hospital until two days later. It took a further three days in hospital before the claimant was correctly diagnosed, by which time her hip became infected resulting in a permanent disability. The defendant argued that his negligence was not the factual cause of the claimants loss as even if she had been admitted to hospital on time there would still have been a three day delay in the correct treatment being given. The claimant would still, therefore, have suffered the same disability. The Court of Appeal held that where a doctor had negligently failed to refer a patient to hospital and, as a consequence, she had lost the opportunity to be treated correctly, the doctor could not escape liability by establishing that the hospital would have negligently failed to treat the patient appropriately, even if promptly referred. The Court of Appeal in this case also confirmed their previous decision in

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Gregg v Scott [2002] EWCA Civ 1471 on recovery for loss of chance. There is no recovery in medical negligence cases for loss of less than even chance of a better recovery. Refer to Chapter 7 for more details on Causation.