An Essay on Clinical Negligence
“We have always thought of causation as a logical, almost mathematical business. To intrude policy into causation is like saying that two plus two does not equal to four because, for policy reasons, it should not.” (Charles Foster NLJ 5/11/2004 page 1644).
To what extent do you consider that Charles Foster is correct in that causation and clinical negligence should be a “mathematical business” and the courts have, by introducing matters of policy, confused what should be a logical approach?
In the article of “It should be, therefore it is”1, its author, Charles Foster examined the surprise House of Lords judgment in Chester v Afshar2, what he described as “an exercise in legal creativity that abolishes the requirement for causation in any meaningful sense.”
To discuss the above issue, one must consider the legal requirements of clinical negligence.
In order for a patient to succeed in a claim for clinical negligence against his doctor, he must be able to satisfy three requirements: first, he must establish that a duty of care was owed by the doctor or hospital to himself; second, he must prove that the doctor has breached that duty of care by failing to reach the standard of care required by the law; lastly, the patient must prove that his injury was caused by the doctor’s negligent act. Each of these requirements for negligence will be considered as the strict requirements for a successful claim of the patient suffering from an adverse event in a medical context. These steps were referred by Charles Foster as the logical “mathematical business” 3towards establishing the causation in a clinical negligence case.
Is Chester’s case a relaxation of the causation requirements?
To discuss this statement, one must consider whether the breach of duty causes the harm to the patient. Even if a doctor breaches his duty of care by falling below the standard of care, a patient can only recover his damages if he can prove that breach has caused some harm to him.
1. “It Should Be, Therefore It is” (2004) 154 New Law Journal 7151. 2.  UKHL 41.
3. Charles Foster New Law Journal 5/11/2004, p. 1644.
If the doctor breaches his duty of care, but the patient suffered no injury, or would have suffered an identical harm regardless of the doctor’s failing, then the doctor is not proven negligent. This can be illustrated by the case of Barnett v Chelsea and Kensington Hospital Management Committee4. In this case, the doctor has breached his duty of care to the deceased man by not examining him personally, but the action for clinical negligence failed, because even if the patient had been seen by the doctor, the arsenic poisoning was regarded as too far advanced for an antidote to be life-saving. In other words, by the time the patient arrived at the hospital, he was destined to die irrespective of the actions or negligent omissions of the doctors. Although his doctor failed to meet the requisite standard pf care in treating him, this did not in itself cause any harm to the patient.
4. There are two ways of interpreting this causation requirement. On the one hand, there exists a reasonable principle that a person should not be held liable for damage which he did not cause. On the other hand, there is no legal evidence for incompetent medical care unless the patient can prove that the doctor’s action indeed caused some identifiable harm. The particular patient is Barnett should have been attended by a doctor, but the fact that he was not subject to compensation. In recent years, the English legal system has recognized that a very strict application of the causation requirement can result in injustice for the patient and therefore there have been gradual moves towards a relaxation of this requirement. In Bolitho v City & Hackney Health Authority5, for instance, a strict application of the traditional causation test of “but for” – that is the harm...
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