piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Beware the NHS ‘killing season’

If you had the misfortune to be inside a hospital today, you may not have been imagining it if you thought the doctors are getting younger…

 

According to the Telegraph, around 7,000 graduate doctors today began practice in hospitals up and down the country.  

 

Dr Anthea Martin, senior medical advisor at the Medical and Dental Defence Union of Scotland, says “many [junior doctors] are being thrown in at the deep end and the nature of medicine means that it is inevitable doctors have to learn on the job.”

 

The changeover has been labelled as 'black Wednesday' or the 'killing season' because of the rise in death rates. In 2009 a study by Imperial College London (involving 300,000 patients at 170 hospitals) found that patients admitted as an emergency on ‘black Wednesday’ are 6% more likely to die than on the previous Wednesday.

 

This raises questions over the standard of care expected of more junior doctors.

 

The general rule, as set out by the Court of Appeal in Jones v Manchester Corp [1952] 2 Q.B. 852, is that the patient is entitled to the same level of care and skill as would be expected of a fully qualified and well experienced doctor. “Errors due to inexperience or lack of supervision are no defence as against the injured person”.  

 

What is often overlooked is that subsequently in Wilsher v Essex AHA [1987] Q.B. 730, a majority of judges accepted (albeit obiter) the standard of care owed by a doctor may depend on his subjective knowledge of the risks associated with the treatment. According to Sir Nicholas Browne-Wilkinson V.C “one of the chief hazards of inexperience is that one does not always know the risks which exist”. A doctor “should only be held liable for acts or omissions which a careful doctor with his qualifications and experience would not have done or omitted” Mustill L.J. was more blunt: “The structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much”.

 

It remains to be seen whether, and if so how, these cases can be reconciled. ‘Black Wednesday’ may indirectly, provide the answer.

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