A high bar
The courts have considered what a responsible and logical body of doctors would have done in similar circumstances, as Dr Jock Mackenzie explains
In April 2020, Lady Hale gave the unanimous Supreme Court judgment in Barclays Bank plc v Various Claimants  UKSC 13.
The issue was whether Barclays bank was vicariously liable for sexual assaults by the late Dr Gordon Bates, a GP with a ‘portfolio practice’ which included medical assessments and examinations of employees/prospective employees for Barclays.
The case concerned the first step of vicarious liability: whether there was a sufficient relationship between the defendant and tortfeasor.
Lady Hale concluded the law remained that the ‘employer’ of an independent contractor was generally not liable for negligence committed by that contractor in the course of the execution of their work.
The key lay in the detail of the relationship between defendant and tortfeasor. In most cases, it would be clear whether the tortfeasor was an independent contractor.
Dr Bates was an independent contractor and nowhere near to being an employee: he had a portfolio of clients and patients, he was not on a retainer, he did not have to accept work from Barclays and he was probably insured.
Duty of care
At issue in ABC v (1) St George’s Healthcare NHS Trust and (2) SW London and St George’s Mental Health NHS Trust and another  EWHC 455 (28.02.20) was the duty of care to a third party.
ABC’s father (XX) was being treated by D2. XX tested positive for Huntington’s disease at D1 in November 2009, having been referred there by D2, but refused to consent to disclosure of this information to his daughter, ABC, who was having family therapy at D2.
ABC had become pregnant in July 2009 and the latest date she could terminate was December 2009.
ABC claimed for wrongful birth and psychiatric injury: she should have been told of the risk of Huntington’s disease so she could have been tested and terminated her pregnancy.
Yip J considered the relationship between D1 and ABC was not sufficiently proximate to impose a duty because, although D1 knew of ABC’s circumstances from D2, their geneticists had never met her.
In contrast, ABC was D2’s patient and even though only for family therapy and not genetic advice, that created sufficient proximity.
Further, it was foreseeable ABC might suffer harm if the information was withheld from her.
Therefore, it was fair, just and reasonable to impose a duty on D2, the scope of which was to balance her interest in being informed of her genetic risk “against her father’s interest in preserving confidentiality in relation to his diagnosis and the public interest in maintaining medical confidentiality generally”.
However, on the facts, D2 had not breached that duty. The judge noted that, when the issue concerned a duty of confidentiality, the bar would be set relatively high and clinicians would be afforded considerable latitude to ensure that a balance was achieved.
In Brady v Southend University Hospital NHS Foundation Trust  EWHC 158 (31.02.10), the issue was whether a mass seen on two CT scans following an appendicectomy was a fungal infection rather than an omental infarction, and whether the scans had been reasonably interpreted.
The judge concluded the first scan had been misreported but not negligently; and the second scan interpretation had not been in breach because, while suboptimal, the radiologist had recommended appropriate further investigations.
In Mario Schembri v Ian Marshall  EWCA Civ 358 (10.03.20), a GP appealed against a judgment that he had been negligent in failing to suspect a pulmonary embolism (PE) and refer the late DM to hospital.
The GP had diagnosed a muscular strain in the afternoon; and DM collapsed at home the following morning and died from a cardiac arrest.
C had not been able to prove, if admitted to hospital, DM would have received anticoagulation or thrombolysis for progressive PEs overnight or would have survived if given thrombolysis when she collapsed.
The judge concluded that patients generally rarely die from PE in hospital and it was more likely than not that DM would have survived.
D appealed, accepting C did not need to prove the precise mechanism by which DM’s injury would have been prevented, but claiming C had failed to establish DM would have survived with proper treatment, so the claim must fail.
The appeal court dismissed the appeal.
McCombe LJ considered that general statistics were applicable and the judge’s deployment of such evidence had been similar to DM’s own condition, and her prospects of survival in hospital had been “very good indeed”.
In Collyer v Mid Essex Hospital Services NHS Trust  EWHC 3577 (QB) (20.12.19), the issue concerned near total paralysis of C’s twelfth cranial (hypoglossal) nerve during a laryngectomy for recurrent laryngeal cancer.
A non-negligent, bilateral, permanent, near-total hypoglossal nerve palsy following laryngectomy was neither a reported nor recognised complication of laryngectomy according to the world literature.
Equally, there were no reports of it being caused negligently, although it would be possible to do so.
C asserted the absence of any such reports led to a presumption of negligence.
The judge identified C had the burden of proof to prove the surgeon was negligent, not just what the most likely cause of the injury was.
C was unable to prove the precise mechanism of injury and failed to prove the surgeon was negligent.
In SC v University Hospital Southampton NHS Foundation Trust  EWHC 1610 (QB) (22.06.20), Johnson J considered a misdiagnosis of meningitis as tonsillitis and the standard of care provided by a third-year paediatric senior house officer (SHO) and a first-year paediatric consultant.
The judge concluded the SHO had not been in breach; but the consultant was for failing to appreciate the masking by antibiotics of C’s symptoms, which would have led to intravenous antibiotics early enough to have avoided cerebral palsy.
The judge emphasised the standard to be applied to the two respective clinicians following FB v Princess Alexandra Hospital NHS Trust  EWCA Civ 334: the skill expected of a doctor is that which is to be expected of reasonably competent members of the profession with the same level of seniority, irrespective of length of experience at that level of seniority, and the same level of specialisation.
A body of doctors
At issue in Bradfield-Kay v Cope  EWHC 3881 (21.05.20) was whether a surgeon, who placed a component of a hip replacement too far forward such that it interfered with a tendon, was negligent.
Although it was agreed between the parties’ experts that this should not be done, D asserted it was not negligent because a body of experts did it.
The judge preferred D’s orthopaedic expert’s evidence as he had more experience than C’s expert.
But on analysing the expert’s reasoning, he concluded that he had given no good justification or rationale for not ensuring the component was not prominent in this case, such that the body of surgeons who did place it prominently was illogical and negligent.
In Joanne Dowson v Dr Ashleigh Lane  EWHC 642 (19.03.20), a patient with longstanding type I diabetic failed to establish breach of duty against a GP for not referring her urgently to the foot clinic for a swollen foot in the absence of redness, warmth and deformity.
There was a responsible and logical body of GPs who would have done likewise.
Finally, the claimant in NKX v Barts Health NHS Trust  EWHC 828 (08.04.20) had cerebral palsy.
He succeeded in claiming that his mother was given no or no sufficient warning that she should have continuous fetal monitoring when in labour; she would have accepted this over intermittent auscultation such that intermittent fetal heart abnormalities would have been detected earlier than they were (as would uterine rupture); and delivery would have been achieved more quickly and so some of the acute hypoxia.
This would in turn have resulted in only mild brain damage. The claim is being appealed.
Dr Jock Mackenzie is a partner at Anthony Gold anthonygold.co.uk