FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334; The spectrum of seniority for professionals in negligence claims

Tim Petts and Ted Cunningham of 12KBW consider this important decision where the Court of Appeal discussed the appropriate standard of care for different ranks of healthcare professionals.

In FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, the Court of Appeal overturned a first-instance decision that a junior doctor had not been negligent when examining a one-year-old girl and taking a history from her parents in the early hours of the morning.  Dr R, the senior house officer (SHO) who saw her in A&E, reached a view that FB was probably suffering from a chest infection and discharged her.  Tragically, FB returned to hospital that evening, severely unwell, and was thereafter diagnosed with pneumococcal meningitis and multiple brain infarcts.  She now has permanent brain damage.

Jackson LJ looked at the general principles of what the law should expect from young professionals near the start of their career.  The following points can be found in his general review of tort law authorities:

  • The personal attributes and experience of the defendant are generally disregarded in negligence claims – a learner driver is judged by the standards of a competent and experienced driver, since “a claimant is entitled to expect that those whom he or she encounters in the ordinary transactions of life will adhere to certain general standards”.
  • However, where a characteristic cannot be ignored – for example, the defendant is a child – then the standard of care takes this into account.
  • Under standard Bolam principles, a doctor must exercise the skill and care of a reasonably competent member of the profession.
  • While there are old decisions that take into account the individual experience of a doctor in setting the standard of care, the more modern view is to judge the doctor by the standard of skill and care appropriate to the role they were filling – Wilsher v Essex AHA [1987] 1 QB 730 (in the Court of Appeal). Thus, if a registrar carries out surgery that would normally be performed by a consultant, the standard of competence required is that of the consultant, rather than of a reasonably competent registrar.
  • If a doctor does not have the requisite degree of skill for the role in which they are acting, the hospital authorities will be liable for putting the doctor in a position that was too advanced for their abilities.

On the facts of this sad case:

  • Dr R had to be judged by the standards of a reasonably competent SHO. She was not treated more leniently because she was young and relatively inexperienced, not judged more harshly because she had some paediatric experience before coming to A&E.  All A&E SHOs are judged by the same standard.
  • Dr R failed to elicit the fact that FB’s eyes had been rolling and uncoordinated, even though the ambulance staff had noted this on their records (which, for some unexplained reason, Dr R did not have when seeing FB, contrary to normal practice). Crucially, Dr R did not ask FB’s parents why they had brought their daughter into hospital. It was accepted that, had they been asked, the parents would have mentioned FB’s eye rolling.
  • Dr R agreed that if she had elicited this history in the context of FB’s high temperature then she would have considered the possibility of febrile convulsion and referred FB immediately to the paediatrics team.
  • Taking a proper history is a basic skill which all levels of hospital doctor are expected to possess. There was nothing to support the trial judge’s conclusion that only a more experienced doctor could reasonably be expected to elicit this.
  • Breach of duty was therefore established.

Comment

Some points of interest for future cases are flagged up, and it will be interesting to see how these are developed.

We have seen that the standard of care does not weaken to take account of a practitioner who is less experienced than average.  But consider the situation where a client engages the renowned Dr X on a private basis to carry out tricky surgery, or engages the specialist firm Y and Co Solicitors for a complicated property transaction.  Something goes wrong.  Where the error is something that a specialist should not have committed, but an average practitioner might be excused for it, where should the courts set the standard in contract?  Is the standard of care set objectively by reference to the general level of professional ability, or set subjectively with reference to the particular professional employed?

The Court of Appeal in FB note that there is a conflict in the authorities about the standard of care in contract claims – although they do not mention the views of HHJ Seymour QC in Edwin Coe LLP v Aidiniantz & Ors [2014] EWHC 3994 (QB) that “it does not appear that the decision in any particular case has depended upon a finding that the particular solicitor owed a higher duty by reason of his or her specialisation.” Indeed, in most clinical negligence claims, the issue does not arise, since there is no contract; and in many contract-based professional negligence claims more generally, the issue may never arise where the negligence is something that even the average practitioner should have avoided.

Secondly, Thirlwall LJ noted that there is some debate about the standard that may apply in respect of specialist procedures in tertiary centres, where the second limb of Bolam (acting in accordance with a responsible body of medical opinion) is in “sharp focus”.  This was not the case in FB, which was not a case involving either a specialist procedure or a tertiary centre. Are some skills always deemed basic regardless of circumstance? A basic procedure in a specialised department or centre may be considered an advanced procedure in a more general hospital setting. It remains to be seen whether a more nuanced approach will be required when assessing the objective standard of care expected in such situations.

Finally, there is one aspect of FB that may offer some comfort to the medical profession. Jackson LJ noted that Dr R’s previous paediatric experience did not elevate the standard of care expected her when dealing with children in A&E. This suggests that, as doctors move from department to department, the slate is effectively wiped clean in respect of the specialist knowledge expected of them. Just as the standard of care should not weaken to accommodate inexperience, it should not increase to account for previous specialist experience. FB has confirmed that the relevant standard of care in negligence claims is that of a reasonably competent professional of the same level within the same department.

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