DUTY OF CARE OWNED BY JUNIOR DOCTORS: IMPORTANT COURT OF APPEAL DECISION

In the decision today is FB -v- Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334 the Court of Appeal made important observations about the duty of care owed by junior doctors.

“The conduct of Dr Rushd in the present case must be judged by the standard of a reasonably competent SHO in an accident and emergency department. The fact that Dr Rushd was aged 25 and “relatively inexperienced” (witness statement paragraph 5) does not diminish the required standard of skill and care. On the other hand, the fact that she had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard.”

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KEY POINTS

  • A judge had erred in finding that a junior doctor was not negligent.
  • The standard to be applied was the standard of a reasonably competent doctor in that situation.
  • The fact that the doctor was inexperienced did not diminish the required standard of skill and care.

THE CASE

The claimant was a child taken to hospital and examined by a junior doctor, key symptoms were missed.  The action failed at first instance because the judge found that it was not negligent for this doctor to fail to elicit a fall. That decision was overturned by the Court of Appeal.

THE JUDGMENT OF LORD JUSTICE JACKSON

The issue is considered in detail in the judgment of Lord Justice Jackson:-

    1. At paragraph 169 of his judgment the judge said:
“In my judgment, a Consultant A&E doctor or paediatrician either would have picked up the “abnormal state variation” or embarked on a line of inquiry which was likely to have elicited Ms Whipple’s “coda”. In particular, an experienced doctor would probably have said to the parents something along the lines – this child looks fine to me, how was she different earlier? The fact that WAC and Paul were relatively young, and possibly over-anxious, parents is a factor which cuts both ways in this case, but an experienced doctor might well have probed further. On balance and in the light of all the evidence I have heard, I have concluded FB’s case under this sub-heading places too high a standard of acceptable practice on an A&E SHO. An experienced clinician acquires an armamentarium of diagnostic and inquisitive resources, part intuitive and part knowledge-based, which enable her or him to penetrate more deeply into any given situation. Overall, FB has failed to satisfy me on the balance of probabilities that it was sub-standard practice for Dr Rushd to fail to elicit the recent history.”
In other words, it would have been negligent if “an experienced doctor”, such as a consultant A&E doctor or paediatrician, had failed to elicit the relevant facts. But such a failure by an SHO in the A&E department did not amount to negligence.
    1. That paragraph raises in acute form the question: what standard of skill and care should the law require from a young professional person in the early years of her career? I shall address this question in three stages:
i) The general law of negligence.
ii) Professional negligence.
iii) The present case.
1. The general law of negligence
    1. The issue arising in this case is part of a wider problem with which the courts have wrestled for over a century, namely to what extent are the personal attributes and experience of the defendant relevant in determining whether he/she was negligent? The general rule is that the courts disregard them. Nevertheless, there are some characteristics of a person which the law cannot ignore, for example the fact that she was a child. In Mullins v Richards [1998] 1 All ER 820 the court judged the conduct of the defendant by the standard of “an ordinarily prudent and reasonable 15-year-old schoolgirl”.
    2. Oliver Wendell Holmes formulated the underlying principle in the third of his famous lectures on The Common Law as follows:
“There are exceptions to the principle that every man is presumed to possess ordinary capacity to avoid harm to his neighbours, which illustrate the rule, and also the moral basis of liability in general. When a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them.”
    1. From the defendant’s point of view, it is harsh to disregard their limitations and to hold them liable for doing that which they could not help doing or for failing to achieve that which they could not achieve. But a claimant is entitled to expect that those whom he or she encounters in the ordinary transactions of life will adhere to certain general standards. Thus in Nettleship v Weston [1971] QB 691 the Court of Appeal held that a learner driver should be judged by the standards of a competent and experienced driver. In effect, the law of tort achieves a compromise. It takes account of those characteristics which cannot be ignored (for example that the defendant was a child or was blind), but subject to that it imposes a general duty of care upon all members of society, which is not tailored to their individual strengths and weaknesses.
2. Professional negligence
    1. In the context of professional negligence litigation, the foundational twentieth century authority setting the required standard of skill and care is of course Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The defendant is required to exercise the skill and care of a reasonably competent member of his/her profession. The defendant’s obligation to exercise that degree of skill and care is sometimes contractual, sometimes tortious and sometimes both. In the present case, there was no contract between the parties. So Dr Rushd’s duty to exercise reasonable skill and care in assessing the claimant was a duty imposed by the law of tort.
    2. In some of the earlier professional negligence cases, the courts focused upon the individual experience of the defendant in determining what constituted a reasonable degree of skill and care. In Junior v McNicol (Times Law Reports, March 26, 1959) the court took into account that the defendant house surgeon was “a comparative beginner”. In Hucks v Cole (Times Law Reports, May 9, 1968) the Court of Appeal held that the defendant was to be judged by the standard of “a general practitioner with a diploma in obstetrics”.
    3. In Wilsher v Essex AHA [1987] 1 QB 730 the Court of Appeal for the first time gave detailed consideration to the standard of care required of a junior doctor. (This issue did not arise in the subsequent appeal to the House of Lords). The majority of the court held that a hospital doctor should be judged by the standard of skill and care appropriate to the post which he or she was fulfilling, for example the post of junior houseman in a specialised unit. That involves leaving out of account the particular experience of the doctor or their length of service. This analysis works in the context of a hospital, where there is a clear hierarchy with consultants at the top, then registrars and below them various levels of junior doctors. Whether doctors are performing their normal role or ‘acting up’, they are judged by reference to the post which they are fulfilling at the material time. The health authority or health trust is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand.
    4. Thus in professional negligence, as in the general law of negligence, the standard of care which the law requires is an imperfect compromise. It achieves a balance between the interests of society and fairness to the individual practitioner.
    5. Where a professional negligence claim is brought in contract, the standard of care required may be more nuanced. In Duchess of Argyll v Beuselinck [1972] 2 Lloyd’s Rep 172 Megarry J drew a sharp distinction between contract and tort. At 183 he said:
“The essence of the contract of retainer, it may be said, is that the client is retaining the particular solicitor or firm in question, and he is therefore entitled to expect from that solicitor or firm a standard of care and skill commensurate with the skill and experience which that solicitor or firm has. The uniform standard of care postulated for the world at large in tort hardly seems appropriate when the duty is not one imposed by the law of tort but arises from a contractual obligation existing between client and the particular solicitor or firm in question.”
The contractual cases are not entirely consistent on this point. Contrast, for example, Sharp and Roarer Investments v Sphere Drake Insurance [1992] 2 Lloyd’s Rep 101 with Andrew Master Hones v Cruikshank & Fairweather [1980] RPC 16 at 18. Fortunately, we do not need to address that problem in the present appeal.
    1. The present case is concerned only with tortious liability. I do not wish this judgment to be taken as accepting that in contractual professional negligence claims the particular experience and CV of the defendant should be ignored, as they must be in tortious claims. In a contractual case, the claimant may have selected and retained the defendant precisely because of their experience and CV. In a tortious claim, however, such as the present case, the claimant and her parents may play no part in the choice of doctor.
3. The present case
  1. The conduct of Dr Rushd in the present case must be judged by the standard of a reasonably competent SHO in an accident and emergency department. The fact that Dr Rushd was aged 25 and “relatively inexperienced” (witness statement paragraph 5) does not diminish the required standard of skill and care. On the other hand, the fact that she had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard.
  2. I agree with Thirlwall LJ that history taking is a basic skill which hospital doctors at all levels are expected to possess. The fact that FB’s eyes had been rolling and uncoordinated was the event that precipitated the hospital visit. The ambulance staff picked this up. I do not accept the judge’s conclusion that only a doctor more senior than Dr Rushd can reasonably have been expected to elicit this important fact. Therefore the judge’s decision cannot stand.
  3. Before parting with this case, I must acknowledge that junior hospital doctors work long hours under considerable pressure. They are often involved in life and death decisions. The pressures can be even greater when they are working all night, as Dr Rushd was here. If mistakes are made, it is devastating for the patient and it is expensive for the NHS trust. Doctors, however, are human. Even good and conscientious doctors may, from time to time, fall short. That is not a reason to lose heart or (even worse) to abandon medical practice. Those who have learnt from past mistakes often have even more to offer.”
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