Tort - Seminar 3 - SW102 by Claire Turner

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claire43 — 2022-10-11 11:44:45 UTC

claire43 — 2022-10-11 11:44:50 UTC

Penny was admitted to hospital unable to breathe. Dr Rajesh, a surgeon on duty at the Accident and Emergency department at the hospital, examined her and decided to perform an emergency operation to insert a temporary piece of tubing into her windpipe. Dr Rajesh did this after recently reading a controversial article in the British Medical Journal about the importance of acting quickly in such cases. The majority of surgeons would not have performed surgery when Dr Rajesh did but would have tried alternative treatments first, but a small number of surgeons would have acted as he did.

After the surgery Penny was placed in intensive care under Dr Sheldon, a junior doctor. Dr Sheldon was told that if Penny’s condition changed in any way that he was to immediately summon a senior doctor. When Penny’s condition suddenly deteriorated and she was unable to breathe, Dr Sheldon attempted to clear an obstruction in her windpipe but was unsuccessful. Penny died.

Advise the representatives of Penny’s estate of any tortious claims they may make.

IRAC

2025-10-07 10:36:04 UTC

I - Issue

R - Rule

A - Application

C - Conclusion

Dr Rajesh

2025-10-07 10:53:12 UTC

Issue - Negligence in particular breach of duty

Rule - Negligence - Duty - Dr/patient relationship - existing precedent - Wilsher

Breach - Bolam - 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art' (per Nair J)

Application - Would a body of medical opinion have carried out the operation following a article in the BMJ? As a 'small number of surgeons would have acted as he did' this would be argued by the Defence as evidence he did not breach his duty of care and met the required standard.

If there is conflict between experts on whether it should have been carried out - Bolitho - court will decide.