Chapter 6 Guidance on answering the end-of-chapter problem questions

Breach of duty

It is foreseeable that, if either the hospital or doctors fail to take care, injury might be caused to Oliver from risks such as failure to install adequate lighting and from failing to test for allergies etc. See Bolton v Stone. The next issue involves setting the standard and looking at factors relevant to both risks and reasonable responses. With respect to the lighting, the question is – should a stronger globe have been used? The standard set out in the Hospital Operating Theatres Standard will be a guide as to what the law might require but will not bind the courts. In seeking to do what is reasonable, the courts might take the view that lighting is inadequate if medical teams cannot see what they are doing. Although under-funding might be taken into account, it is difficult to believe that saving on lighting costs in an operating theatre would be a reasonable response to this. The flickering light in a surgery appears to be a straightforward failure to meet the standards of reasonableness. Moving on, it is obvious that the usual standard of care with respect to treatment would require informing the patient of the risks of surgery, including those of specific interest to the claimant (Montgomery v Lanarkshire Health Bd), taking a patient history, and testing for allergies. However, hospitals must act sometimes in emergency situations (and will thus be acting ‘for the benefit of society’: SARAH Act 2015, s 2) and this might mean taking risks in order to save life etc: Watt v Hertfordshire CC. The mere failure to notice the polyp (an error) is not an inevitable indication of negligence – again because the medical team was acting in an emergency. Whatever you decide the correct standard of care to be, you must apply this and determine whether the defendants failed to meet that standard.