The case of Bolitho v City and Hackney Health Authority  4 All ER 771 established that a court is not bound to hold that a doctor can escape liability for negligence simply by producing evidence from a number of experts that his opinion and actions accorded with accepted medical practice.
In Khan v Meadows, the Supreme Court set out a model for analysing the different ingredients for establishing negligence. For further guidance including on the scope of the defendant’s duty of care, see Practice Note: Duty of care and breach in clinical negligence claims.There are two parts to causation which a claimant must prove:•is the loss the consequence of the defendant’s act or omission? (the factual causation question)•is a particular element of the harm irrecoverable because it is too remote, or because there is a different effective cause (including an intervening act which broke the chain of causation) or because the claimant has mitigated their loss or has failed to avoid loss which they could reasonably have been expected to avoid? (the legal causation or legal responsibility question)Factual causationFactual causation is easy to determine where there is an obvious physical connection between the breach of duty and the injury/loss. For example, if a surgeon’s error resulted in the claimant’s broken leg being ignored and the good leg being amputated, the physical connection makes causation simple.In a clinical negligence case which has a single cause, causation may be determined by applying the ‘but for’ test to the factual and expert evidence.However, the ‘but for’ test is inadequate in more complex cases, eg where there is more
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This week’s edition of Personal Injury weekly highlights includes the much anticipated announcement from the Lord Chancellor that the government has delayed implementation of the whiplash reforms to 1 August 2020. We have our usual round-up of other key cases and news as well as webinar dates for your diaries, recently published Q&As and New Law Journal articles of interest.
Personal Injury analysis: A widow's claim that there was a negligent failure to diagnose and treat her husband’s lung cancer failed because the judge ruled that he would not have elected for treatment anyway. However, the case raises a number of interesting points: how the Bolitho test applies to causation in relation to hypothetical events, the application of Montgomery where those hypothetical events concern advice, how to plead Bolitho causation cases, and the importance of good witness evidence as to what a patient would have decided given different advice. Paul Sankey, partner at Enable Law, considers the background to the case and its practical implications.
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