LORD JUSTICE SWINTON THOMAS: For the reasons given by my Lord I agree this appeal should be dismissed. The famous case of Bolam v Friern Hospital Management Committee ... (Defreitas v O’Brien). Date published: 21/09/2015 Appeal against a finding that the claimant had been unfairly dismissed and that she had suffered unlawful discrimination within the meaning of sections 15 and 39 (2) of the Equality Act 2010. Copyright © 2007 - 2020 Revision World Networks Ltd. P's vocal cords were damaged (the risk of this being inherent in the operation) and P sued unsuccessfully for damages. De Freitas v AG [1991] JRC 153 (21 October 1991) De Freitas v Att. Healthcare workers, in particular, are working with high levels of stress and emotional exhaustion, with risk of long term consequences such as stress and anxiety disorders. Consultants were unsure whether P was suffering from tuberculosis or Hodgkin's disease, and carried out an exploratory operation without waiting for the results of other tests. Leading counsel referred us to the evidence that there are only eight or so orthopaedic surgeons in the country who come within the body of medical practitioners called "spinal surgeons"; there are only three neuro-surgeons in the country who come within this body. Crivon v Barnet Group Hospital Management Committee [1959] Times, 19, Cullin and Others v London Fire Civil Defence Authority [1999] PIQR P314 Daniels v Walker [2000] 1 WLR 1882 Darling v Charleston Community Memorial Hospital 11 N. E. 2d 253, 383 U.S. 946 [1966] De Freitas v O’Brien … There was evidence before the learned judge which he clearly accepted to justify his conclusion that a small number of tertiary specialists could constitute a responsible body of medical opinion. MR D BRENNAN QC and MR C UTLEY (Instructed by Kingsley Napley, London, WC2E 9PT) appeared on behalf of Plaintiff/Appellant. They should find him liable only if he had fallen short of the standard of reasonable medical care, so that he was deserving of censure. 8De Freitasv O'Brien P.I.Q.R. Although birds belonging to order Caprimulgiformes show extensive karyotype variation, data concerning their genomic organization is still scarce, as most studies have presented only results obtained from conventional staining analyses. Defreitas v O'Brien (1995) Times 16/2/95, CA. Bolitho v City & Hackney Health Authority [1997] 4 All ER 771, HL. p.169 Crouchman v. Burke (1997) 40 BMLR 163. p.178 Cull v. Royal Surrey County Hospital (1932) 1 BMJ 1195. p.159 Davis v. Barking, Havering and Brentwood Health Authority [1993] 4 Med LR 85. p.192 De Freitas v. O’Brien [1995] 6 Med LR 108, CA. I have already referred to the first defendant's qualifications and experience. At most he found that the plaintiff was exhibiting symptoms and signs which did not of themselves amount to radicular pain. You can write a book review and share your experiences. A body of eleven doctors out of a total of well over 1000 orthopaedic surgeons and neuro surgeons is very small. In particular the authoritative passage in this respect is to be found in Maynard v West Midlands RHA [1984 1 WLR 634, a decision of the House of Lords in which Lord Scarman in his speech at 637H stated: "The only other question of law -- is as to the nature of the duty owed by a doctor to his patient. As the international team of observers led by Lord Avebury noted in its report on the 1980 election: Lybert v Warrington Health Authority. [1] Society of Advocates of Natal v De Freitas and Another (Natal Law Society Intervening) 1997 (4) SA 1134 (N) at 1174. Get 1 point on providing a valid sentiment to this In my view the appellant's emphasis and reliance upon this finding by the learned judge is not justified. Mr Findlay is a consultant neuro-surgeon specialising exclusively in spinal surgery since 1985. He then considered the expert evidence on behalf of the defendant. [3] The matter has been dealt with in terms of Constitutional Court Rules, 1995 contained in Government Notice R1584, Regulation Gazette … The defendant's actual qualifications and experience are irrelevant. 2. On this analysis I cannot accept the proposition that the learned judge found either expressly or by implication that the plaintiff was not suffering from radicular pain. MR P ASHWORTH QC and MR T COGHLAN QC (Instructed by Hempsons, WC2E 8NH) appeared on behalf of the First Defendant/Respondent. They were unable to use the stairs or to open the windows; C2 eventually smashed a window to escape, but was badly injured in so doing, and the children died. Accordingly it was the learned judge's duty to analyse carefully and with reservations the reasons put forward by the spinal surgeons for advocating a practice thought to be dangerous and unmerited by the vast majority of responsible practitioners. This led to the development of arachnoiditis. “The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”; is the definition given to negligence from the case of “Blyth v Birmingham Waterworks Co (Ex, 1865)”. Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL (House of Lords, [2004] UKHL 56, Bailii, Times 17-Dec-04, [2005] 2 WLR 87, [2005] 2 AC 68) The applicants had been imprisoned and held without trial, … He clearly did. A woman P suffered side-effects from an unorthodox medical procedure, and sued the surgeons responsible. References: Times 16-Feb-1995, Ind Summary 03-Apr-1995 It is not in dispute that the plaintiff's subsequent problems were related to infection and the development of the CSF leak which resulted from the non-culpable perforation of the dura. Had she so suffered, the respondent would have discovered the fact. The doctor's treatment decisions were supported by several expert witnesses, and on that basis the judge found that the doctor had not been negligent; P's appeals failed. change. Sidaway v Governors of Bethlem Royal Hospital. For a summary of these limitations, ... See Barclays Bank v O'Brien [1994] 1 AC 180 and Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773. It is not sufficient to raise the Bolam defence by resorting to such a small number. The test was whether the defendant had fallen short, in judgement or otherwise, of the standards to be expected of an ordinary skilled surgeon. He takes as his starting point the well-known passage of McNair J in his summing-up to the jury in Bolam v Friern HMC [1957] 1 WLR 582 at p 587: It was submitted that the Bolam test was not designed to enable small numbers of medical practitioners, intent on carrying out otherwise unjustified exploratory surgery, to assert that their practices are reasonable because they are accepted by more than one doctor. Mr John Webb is an orthopaedic surgeon whose training included a post at the Robert Jones and Agnes Hunt Orthopaedic Hospital, Oswestry. A doctor is expected to come up to the standards of the reasonable doctor practising the skill in question - the reasonable GP, or the reasonable obstetrician, or the reasonable brain surgeon, or whatever. He found that: Having accepted, as I do, the integrity of the evidence given by Mr Findlay and Mr Webb, I feel impelled to accept that part of their evidence which says that they speak on behalf of all those specialising in spinal surgery when they say that such a decision would not be unreasonable; on the contrary it would be necessary.". p.171 de Freitas v O'Brien & Connolly. He also accepted that the logic which led the defendant to believe that the first operation must have been responsible for the new pattern of pain, to be prima facie reasonable. A two-year-old boy P suffered serious brain damage following a respiratory failure, and his parents alleged medical negligence. The latter is voluminous. Newell v Goldenberg (1995) 6 Med LR 371, Mantell J. In case of any confusion, feel free to reach out to us.Leave your message here. D prescribed a certain herbal remedy, but C suffered an unpredictable idiosyncratic reaction and died. It would be disastrous to the community if a doctor examining a patient or operating at the table, instead of getting on with his work, were forever looking over his shoulder to see if someone was coming up with a dagger. A v National Blood Authority (BAILII: [2001] EWHC QB 446) AB v South West Water Services Ltd [1993] QB 507 AC Billings & Sons Ltd v Riden (BAILII: [1957] UKHL 1) [1958] AC 240 Adams v Ursell [1913] 1 Ch 269 He cited Hills v Potter [1984] 1 WLR 641 where Hirst J stated at 653C: Counsel submitted that in using the word "substantial" the judge was doing so in a "quantative sense". Medical treatment is clearly a "skilled activity", and the principles above apply in this area. It was clear that a responsible body of professional opinion would agree that the school had done enough: it could not be a breach of duty to fail to take steps which were unlikely to do much good. In my judgment these findings cannot be faulted. Click here to remove this judgment from your profile. Interact directly with CaseMine users looking for advocates in your area of specialization. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. If Mr de Freitas fails in that, the issue of damages arises. First, plaintiff has offered differing estimates as to how many feet he fell, but that is "irrelevant to [the] central contention that he fell when the [pick and ladder slipped], and that he was not provided with proper protection" (DeFreitas v Penta Painting & Decorating Corp., 146 AD3d 573, 574 [2017]; see Ernish v City of New York, 2 AD3d 256, 257 [2003]). Neither the accuracy of the note nor the judge's finding of falsity was determinative of any of the issues that the judge had to decide. DeFreitas, 283 A.D.2d 611, 725 N.Y.S.2d 232). He said: In summarising Mr Findlay's evidence on this issue, the learned judge said: Thus there was not only evidence to support the first defendant's decision to operate in the absence of radicular pain, the learned judge unequivocally preferred the evidence of the first defendant's experts to those called on behalf of the plaintiff. Get 2 points on providing a valid reason for the above Thus it is contended that eleven spinal surgeons, including the first defendant and the two expert witnesses, do not constitute "a substantial number of reputable practitioners" etc. A man C suffering from a skin complaint sought treatment from D, who was qualified as a practitioner of traditional Chinese herbal medicine but not as an ordinary doctor. state of the art at the time of the act. The experts called on behalf of the first defendants accepted that "normal medical opinion" would not have countenanced surgery in this case and that those who would have countenanced surgery were a very small body of "spinal surgeons". The most recent authoritative formulation is that by Lord Edmond Davies in Whitehouse v Jordan [1981] 1 WLR 246 when he said: 'The test is the standard of the ordinary skilled man exercising and professing to have that special skill. cause of the harm and the action fails. He has run spinal study training courses since 1984 and was editor of the text book on spinal surgery published in 1992. The presence of radicular pain was in the opinion of the respondent's expert witnesses the primary indication for surgery. In dealing with Mr Webb's evidence the learned judge said: However, he did not reject expressly or by implication that the defendant in the course of the second operation cleared the foramina (ie the tunnels of the vertebrae through which the nerves exit) of compressing tissue and bone until he had freed the compromised nerves. A woman P suffered side-effects from an unorthodox medical procedure, and sued the surgeons responsible. In English law the word "substantial" has only appeared in the judgment of Hirst J cited above. The learned judge treated the accuracy of the post-operative note as affecting the defendant's credibility. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. Mr Findlay and Mr Webb were of the opinion that the severe pain suffered by the plaintiff following the first operation was by a process of deduction due to nerve root compression, or the possibility of it. The Bolam test is applied in appropriate cases other than medical negligence. Appeal allowed and case remitted for hearing before a fresh Employment Tribunal. De Freitas v O’Brien and Connelly [1995] PIQR P281 2.2 Derrick v Ontario Community Hospital [1975] 47 Cal App 3d 145 3.6 Donoghue v Stevenson [1932] UKHL 100, [1932] AC 562 1.1, 1.2 Hatcher v Black (1954) Times 2/7/54, Denning J, A woman P suffered side effects from an operation on her throat, and sued the surgeon concerned. There must be a satisfactory evidential basis for the defence to succeed. In my view there is no basis on which this court would be justified in interfering with the judge's findings of fact on any of the grounds contained in paragraphs 1 - 5 in the amended notice of appeal. [2] Act 74 of 1964. Approving the Bolam test, Lord Scarman said there would inevitably be differences of opinion within the medical profession. 3. 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