Tort - Seminar 3 -SW101 by Claire Turner

Seminar Question

claire43 — 2021-10-12 09:28:04 UTC

Penny was admitted to hospital unable to breathe. Dr Rajesh, a surgeon on duty at the Accident and Emergency department at Nottingley 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 their rights, if any, in tort.

2025-10-07 14:12:48 UTC

claire43 — 2025-10-07 14:42:06 UTC

I - issue - Negligence whether there has been a breach of duty by Dr Rajesh and Dr Sheldon

R - Rule

A - Application - to facts

C - Conclusion

Dr Rajesh

claire43 — 2025-10-07 14:51:37 UTC

Duty - Established precedent Dr/patient relationship - 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...Putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view'

Claimant argue - conduct fell below the professional standard

Defence - doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view

Bolitho - contradictory expert opinion - decided by the court.

Dr Sheldon

claire43 — 2025-10-07 14:54:45 UTC

Duty of care - junior (Wilsher)

Breached duty? - Bolam

Defence - emergency - reasonable professional would have attempted to save the patient's life rather than waiting for backup.