Medical negligence litigation - Case Study Example

(Garfield, 3) In assessing the patient's sufficiency to understand, the court considers whether the patient believes it and is capable of "weighing it in the balance to arrive at choice" as stated in the case of Re C (Adult: Refusal of Treatment)] [2002] All ER 449. Since the scenario involves Charles, a minor, it is important to discuss consent to treatment in relation to minors. Minors under the age of 18 are divided into three categories for the purpose of deciding their capacity. This is guided under section 8 of the Family Law Reform Act 1969.

(Garfield, 7) In the scenario involving Charles, a young boy who initially injured himself falling from a climbing frame at the local park, Charles is subjected to multiple medical treatments. His parents believe they may not have been completely necessary based on the advice of a nurse. Each decision by Dr. Green will be discussed as well as the likeliness of a successful claim against Dr. Green in the tort of negligence. Lord Winfield suggests that: "Negligence as a tort is a breach of a legal duty to take care, which results in damage undesired by the defendant to the plaintiff".

(Rogers, 134) Not every act of carelessness which causes harm leads to legal liability and compensation for the claimant. The following elements must be established: (i) legal duty to take care; (ii) breach of that duty; (iii) damage resulting from that breach caused injury complained of which would have otherwise been avoided (as long as it is not too remote). (Garfield, 10) Initially, the issue of owing a duty of care arises in the case of Donoghue v Stevenson [1932], where Lord Atkin established the 'neighbour' principle, which states that: "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour".

(Donoghue v Stevenson [1932] AC 562, at 580) A doctor owes a general duty of care to his patients; however, the extent of the duty owed (standard of care) is determined by the actual position held by the doctor within the unit in which he practices. (Rogers, 248) The first question to be decided upon is the type and level of duty owed by a doctor. Firstly, doctors are judged by their specialty, for example a neurologist would be expected to show the skills of a neurologist and not that of a neurosurgeon.

(Garfield, 10) Second, they are judged by grade and not by seniority. Third, doctors are judged by only what they "ought to know but also by what they actually know". (Garfield, 10) For example, if a registrar does in fact have specialist knowledge but fails to use it, he or she may be liable where other registrars only have average knowledge. (Garfield, 10) Based on the facts, Dr. Green works in the Casualty Department at Wellington Hospital, which is where Charles was brought in immediately after his fall. Dr. Green's initial action of giving a sedative to Charles and sending him for an X-ray of his right knee (as this is where Charles had indicated the pain was focused), seems to fulfill the standard of care owed by a doctor to his patient.

Since Dr. Green was the apparent doctor on duty, he would seemingly owe a relatively high standard of care to any of the patients which are brought in to the Casualty Depa