Category Archives: Negligence

Samuel Hodge, ‘The Liability of Health Care Providers to Third Parties Injured by a Patient’

ABSTRACT Duty of care is a critical component of any negligence claim necessary to establish liability. It is well recognized at common law that a physician owes a duty to advise a patient but is not mandated to take affirmative measures outside the physician-patient relationship to protect a third-party. Health care providers may also be […]

Raheel Ahmed, ‘The Standard of the Reasonable Person in Determining Negligence – Comparative Conclusions’

ABSTRACT The standard of the reasonable person or its equivalent, in general, is used in many jurisdictions to determine fault in the form of negligence. Although the standard is predominantly objective it is also subjective in that the subjective attributes of the person against whom the standard applies as well as the subjective circumstances present […]

‘New co-operation in clinical negligence claims could last beyond pandemic’

“New practices introduced to help the clinical negligence process during lockdown are set to stay for the time being, claimant and defendant lawyers have indicated. A protocol agreed last summer by the Society of Clinical Injury Lawyers and NHS Resolution sought to help the conduct of litigation during the pandemic. Changes included more flexibility on […]

Nadia Sawicki, ‘Ethical Malpractice’

ABSTRACT Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, US courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal […]

Abeezar Sarela, ‘Basma v Manchester University Hospitals NHS Foundation Trust: The Scrutiny of a Clinical Judgement’

INTRODUCTION A ‘clinical judgment’ is a central and recurring notion in medical law. The notion came into prominence in clinical negligence litigation, where the main issue is whether a doctor has acted reasonably in the circumstances in relation to specific aspects of a patient’s care. Traditionally, judges have relied on prevalent medical practice – the […]

‘Case Comment: Okpabi and others v Royal Dutch Shell Plc and another [2021] UKSC 3′

“In this post, Frances Gordon-Weeks and Kristyna Muhlfeitova from CMS comment on the decision of the UK Supreme Court in the matter of Okpabi and others v Royal Dutch Shell and another [2021] UKSC 3 which concerned whether and in what circumstances the UK-domiciled parent company of a multi-national group of companies may owe a […]

‘Dental Negligence, Vicarious Liability and Non-Delegable Duty: A Test Case’

“In Hughes v Rattan [2021] EWHC 2032 (QB), the High Court was asked to answer the following question. Was the owner of a dental practice liable for the dental negligence of a self-employed dentist engaged to work in the practice? The claim arose from NHS care provided by three different associate dentists. The preliminary issue […]

Imogen Goold, ‘Recognising What is Lost in Reproductive Harms: Whittington Hospital NHS Trust v XX

ABSTRACT Whittington Hospital NHS Trust v XX (XX) turned on whether the courts should fund the creation of children for a woman negligently denied the ability to do so herself by awarding her the cost of pursuing surrogacy via a commercial service in California. The key issues were whether these costs should include surrogacy using […]

Paula Case, ‘Medicinal Cannabis Prescribing: A Study of Boundary Work and Medico-Legal Risk’

ABSTRACT The prescription of ‘unlicensed’ cannabis-based medicines was legalised in 2018. A ‘boundary work’ analysis of the post reform guidance issued for doctors reveals a discourse which frames the prescription of medicinal cannabis as a matter for clinical judgement, but also as fraught with medico-legal hazard. The article highlights a triad of rhetorical devices comprising […]

‘Judges owed a duty of care, government concedes’

“Ministers and the senior judiciary owe judges a duty of care, the government has for the first time accepted in a landmark concession in a claim alleging judicial bullying and negligence. The admission comes amid growing complaints of bullying among the judiciary and could precipitate a flood of claims by judges …” (more) [Catherine Baksi, […]