The History of Medical Negligence in the UK

Claims for damages against doctors for negligence in diagnosing or treating illness or injury were almost unheard-of prior to the 20th century. Here we consider the important legal decisions which have influenced the development of medical negligence litigation.

WHO IS MY NEIGHBOUR? HOW DONOGHUE V STEVENSON CHANGED HISTORY

During the 19th century and earlier, any claim against a doctor would be based on breach of contract. Contract law was a well-developed field, as it was important for a mercantile country like England to be able to resolve disputes over trading arrangements. But contract law did not apply easily to the doctor-patient relationship, and claims were rare.

The seminal decision of the House of Lords in the 1932 case of Donoghue v Stevenson changed all that. Mrs Donoghue was having a drink with a friend in the Wellmeadow Café in Paisley, and after drinking some ginger beer poured out the rest of the bottle into her glass only to find the decomposing remains of a snail.

She suffered severe gastroenteritis and sued the manufacturers. Contract law did not apply, as the bottle had been bought by her friend and she had no contractual relationship with the supplier or manufacturer. She sued instead for negligent manufacture.

Mrs Donoghue was either an extremely determined lady or was advised by a very perceptive lawyer who could see which way the law appeared to be developing, because the case ended up before the senior judges in the House of Lords. The House of Lords had to decide whether she had grounds for bringing the claim, because at that time the issue of negligence could only be invoked if there was an established contractual relationship. By a majority, the Law Lords decided there was a distinct and separate tort of negligence, and no contractual relationship was necessary. A manufacturer owed a duty to take reasonable care and not to cause injury to people using their products.

In the leading judgment, Lord Atkins put it like this, invoking Christ’s parable of the Good Samaritan:
‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer’s question ‘Who is my neighbour?’ receives a restricted reply: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation.’
The decision and Lord Atkins’ principles were instrumental in medical negligence history and establishing the basis on which personal injury cases are decided around the world.

THE BOLAM TEST AND HOW IT SHAPED NEGLIGENCE LAW

Clinical negligence lawyers often talk about the ‘Bolam test’ and how it derives from one of the most important cases in medical negligence history. The 1957 case of Bolam v Friern Barnet HMC saw a judge set out the fundamental principle by which the actions of a doctor or clinician are judged to be negligent or not.
The claimant was a patient at a mental health institution, who suffered hip fractures during electro-convulsive treatment when his convulsions caused him to fall off the couch. He contended that the hospital should have given him relaxant drugs or restrained him in some way to avoid him being injured. Alternatively, he should have been warned of the risk.

The judge held that, provided the actions of a doctor are accepted as appropriate by a responsible body of other doctors practising in the same field, he or she is not negligent merely because other doctors would take a different view. It is not for a judge to decide which of two different approaches to treatment is correct – this is for the medical profession to decide.

The decision has proved fundamental in shaping the way in which clinical negligence law has developed and explains why the evidence of medical experts is so important. While the Bolam test remains so far as treatment is concerned, the judge’s finding that it was up to doctors to decide whether to warn a patient of any risks from treatment is no longer good law.

In the 2015 case of Montgomery v Lanarkshire Health Board the Supreme Court held that it was not up to doctors to decide whether to warn a patient of the risks inherent in a course of treatment. Doctors have a duty of care to warn of risks which someone in the patient’s position would be likely to regard as significant. Today’s patients expect a more active and informed role in deciding what is in their best interests.

A CHANGING LANDSCAPE: HOW ENABLE LAW CAN HELP

These are just three decisions of the courts throughout medical negligence history which have affected the way in which the law deals with clinical negligence claims. There are many more, and it is essential to keep up to date with recent decisions if clinical negligence cases are to be pursued effectively.

We will advise you of any court decisions which affect our advice to you or the prospects of success and will bear in mind the current state of the law when deciding how best to progress your claim. Get in touch with our medical negligence solicitors today to discover whether you have a claim.