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or convenience of members of the profession. The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by the law. A practice as to disclosure approved and adopted by a profession or section of it may be in many cases the determining consideration as to what is reasonable. On the facts of a particular case the answer to the question whether the defendant's conduct conformed to approved professional practice may decide the issue of negligence, and the test has been posed in such terms in a number of cases. The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community."
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of the plaintiff's disability developing, but that the medical staff's breach of duty had turned that risk into an inevitability, thereby denying the plaintiff a 25% chance of a good recovery. Damages included an amount of £11,500 representing 25% of the full value of the damages awardable for the plaintiff's disability. On appeal to the Lords, the question was whether the cause of the injury was the fall or the health authority's negligence in delaying treatment, since if the fall had caused the injury the negligence of the authority was irrelevant in regard to the plaintiff's disability. Because the judge had held that on the balance of probabilities, even correct diagnosis and treatment would not have prevented the disability from occurring, it followed that the plaintiff had failed on the issue of causation. It was therefore irrelevant to consider the question of damages.
417:, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation. Rejecting her claim for damages, the court held that consent did not require an elaborate explanation of remote side effects. In dissent, Lord Scarman said that the Bolam principle should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.
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could have led to blindness and, therefore, the Lords found that it was impossible to say that it had caused, or materially contributed, to the injury and the claim was dismissed. In a minority view, Mustill LJ. argued that if it is established that conduct of a certain kind materially adds to the risk of injury, if the defendant engages in such conduct in breach of a common law duty, and if the injury is the kind to which the conduct related, then the defendant is taken to have caused the injury even though the existence and extent of the contribution made by the breach cannot be ascertained.
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class of persons, the public body (or the state) will be liable for the consequences. In this case, it was arguable that there had been an illegal use of the power to permit the deportee to remain at liberty and that the officials exercising that power must have known that it was illegal. Given the criminal's record, the officials must at least have been reckless as to the consequences. For these purposes, it was not necessary to prove foresight that a particular individual might be at risk: it was enough that it was foreseeable that the criminal would harm somebody.
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offences against children and that, as a result, it had failed to provide any adequate treatment for him to reduce the risk of him committing such offences and/or to prevent him from being released from the hospital while he was at risk of committing such offences. But the court struck out the claim on the grounds that there was no duty of care towards the child, as any child, at any time, was in the same danger. Furthermore, as the patient did not suffer from a treatable mental illness, there was no legal right to either treat or detain the person.
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he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: "I do not believe in
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343:"Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise."
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proof of spite or ill-will may make a decision-maker's act unlawful, actual malice in the sense of an act intended to do harm to a particular individual, is not necessary. It will be enough that the decision-maker knew that he or she was acting unlawfully and that this would cause injury to some person, or was recklessly indifferent to that result.
450:, even if the operation was properly done. In the event, only tuberculosis was confirmed. Unfortunately, the risk became a reality and the patient suffered a paralysis of the left vocal cord. The decision of the physician and the surgeon to proceed was said by their expert peers to be reasonable in all the circumstances.
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2 All ER 909. The extent of the hip injuries to a 13-year-old boy was not diagnosed for five days. By the age of 20 years, there was deformity of the hip joint, restricted mobility and permanent disability. The judge found that even if the diagnosis had been made correctly, there was still a 75% risk
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if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if
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McNair J at the first instance noted that expert witnesses had confirmed, much medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of
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Where it can be shown that the decision-maker was not merely negligent, but acted with "malice", the tort of "misfeasance in public office" may give rise to a remedy. An example might be a prison doctor refusing to treat a prisoner because he or she had previously been difficult or abusive. Although
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said, "In many cases an approved professional practice as to disclosure will be decisive. But professions may adopt unreasonable practices. Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interests
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held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which
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AC 1074 The defendant hospital, initially acting through an inexperienced junior doctor, negligently administered excessive oxygen during the post-natal care of a premature child who subsequently became blind. Excessive oxygen was, according to the medical evidence, one of five possible factors that
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rejected the proposition that doctors could not be negligent if they acted in accordance with the usual and customary practice and procedure in their "medical community", holding that "it is not the law that, if all or most of the medical practitioners in Sydney habitually fail to take an available
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but the casualty officer, who was himself unwell, did not see them, advising that they should go home and call their own doctors. One of the men died some hours later. The post mortem showed arsenical poisoning which was a rare cause of death. Even if the deceased had been examined and admitted for
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EWCA Civ 1470, (2003) 1 WLR 741 where a dangerous criminal due to be deported, was released by the police/immigration services to act as an informant and killed a member of the public. The Lords held that if a public officer knows that his or her acts and omissions will probably injure a person or
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In this case, the jury delivered a verdict in favour of the defendant hospital. Given the general medical opinions about what was acceptable electro-shock practice, they had not been negligent in the way they carried out the treatment. That passage is quoted very frequently, and has served as the
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All ER 180; (1999) Lloyd's
Medical Reports 151 (CA) A psychiatric out-patient, who was known to be dangerous, murdered a four-year-old child. The claim was that the defendant had failed to diagnose that there was a real, substantial, and foreseeable risk of the patient committing serious sexual
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treatment, there was little or no chance that the only effective antidote would have been administered to him in time. Although the hospital had been negligent in failing to examine the men, there was no proof that the deceased's death was caused by that negligence.
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treatment (when it is small) unless they are asked. He held that what was common practice in a particular profession was highly relevant to the standard of care required. A person falls below the appropriate standard, and is negligent, if he fails to do what a
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or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice. In addition,
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were also possibilities, the first of which if present would have required remedial steps to be taken in its early stages. Instead of waiting for the results of the sputum tests, the consultants carried out a
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cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent.
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At this time, juries were still being used for tort cases in
England and Wales, so the judge's role would be to sum up the law and then leave it for the jury to hold the defendant liable or not.
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would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. "It is just a question of expression", said McNair J.
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to assist the delivery. The Lords found that the doctor's standard of care did not fall below that of a reasonable doctor in the circumstances and so the baby was awarded no compensation.
247:, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the
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Because of the nature of the relationship between a medical practitioner and a patient, it is reasonable for the patient to rely on the advice given by the practitioner. Thus,
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509:, where a patient in Royal Prince Alfred Hospital who had been born with a spinal problem had her spinal cord totally severed leaving her a paraplegic.
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492:. The doctor who negligently failed to attend to the boy said that she would not have intubated had she attended. There was evidence from one
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1 All ER 267: The claimant was a baby who suffered severe brain damage after a difficult birth. The defendant, a senior hospital
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is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession.
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295:. I am going to continue to do my surgery in the way it was done in the eighteenth century." That clearly would be wrong."
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The law distinguishes between liability flowing from acts and omissions, and liability flowing from misstatements. The
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precaution to avoid foreseeable risk of injury to their patients, then none can be found guilty of negligence".
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was distinguishable because the relevant officials had the power to detain and deport the dangerous person.
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Mason, J. K. & Laurie, G. T. (2003). "Misfeasance in Public Office: An
Emerging Medical Law Tort?" 11
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that he would not have intubated whereas five other experts said that they would have done so. The
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Robertson, Gerald B. (1981). "Whitehouse v Jordan: Medical
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but both the consultant physician and the consultant surgeon took the view that
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was re-examined and revised in the 2015 Supreme Court decision of
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to get a biopsy. The inherent risk of damage was to the left
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Hedley Byrne & Co. Ltd. v Heller & Partners Ltd.
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1 All ER 635. The patient presented with symptoms of
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Akenzua v
Secretary of State for the Home Department
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743:. Seventh Edition. Oxford: Oxford University Press.
351:applies to all the acts and omissions constituting
217:was rejected in the 2015 Supreme Court decision of
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1056:Mental health legal history of the United Kingdom
422:Maynard v West Midlands Regional Health Authority
741:Mason and McCall-Smith's 'Law and Medical Ethics
235:, a mental health institution run by the Friern
110:but its sources remain unclear because it lacks
413:AC 871: The claimant suffered from pain in her
715:. Third Edition, Harmondsworth: Penguin Books.
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455:Hotson v East Berkshire Area Health Authority
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722:. Third Edition London: Sweet & Maxwell.
201:Bolam v Friern Hospital Management Committee
156:Bolam v Friern Hospital Management Committee
473:Bolitho v City and Hackney Health Authority
373:Barnett v Chelsea & Kensington Hospital
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476:4 All ER 771: A two-year-old boy suffered
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393:, was supervising delivery in a high-risk
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739:Mason, J. K. & Laurie, G. T. (2005).
669:Albrighton v Royal Prince Alfred Hospital
484:air passages becoming blocked leading to
376:1 All ER 1068. Three men attended at the
261:not warning him about the risks involved.
141:Learn how and when to remove this message
71:Learn how and when to remove this message
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729:. Third Edition. London: Butterworths.
464:Wilsher v Essex Area Health Authority
314:Montgomery v Lanarkshire Health Board
220:Montgomery v Lanarkshire Health Board
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675:542 at pp 562-3 (29 September 1980)
231:Mr Bolam was a voluntary patient at
725:Kennedy, I & Grubb, A. (2000).
1061:United Kingdom disability case law
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401:for 22 hours, the defendant used
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713:Medicine, Patients and the Law
546:Palmer v Tees Health Authority
16:English landmark tort law case
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1076:High Court of Justice cases
912:Courts of England and Wales
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243:. He was not given any
239:. He agreed to undergo
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637:AC 465, at ???
480:as a result of the
386:Whitehouse v Jordan
258:not restraining him
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720:Medical Negligence
718:Jones, M. (2003).
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691:(1983) 33
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435:carcinoma
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353:diagnosis
249:acetabula
181:1 WLR 582
49:verifying
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832:Tort law
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186:Keywords
178:Citation
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943:Wales
689:F v R
673:NSWLR
655:542.
653:NSWLR
599:Notes
585:F v R
519:F v R
349:Bolam
330:nurse
322:Bolam
309:Bolam
227:Facts
215:Bolam
170:Court
104:, or
736:194.
695:189
693:SASR
527:King
415:neck
47:by
1047::
671:2
433:,
367:.
328:,
317:.
108:,
100:,
790:e
783:t
776:v
763:.
679:.
144:)
138:(
133:)
129:(
115:.
74:)
68:(
63:)
59:(
41:.
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