George Andrews v Greater Glasgow Health Board [2019] CSOH 31
This article originally appeared in Issue 3 (November 2019).
Background
This Scottish case arose from the death of Ms Jean Graham and was brought by her partner of 20 years, Mr George Andrews. Ms Graham had attended hospital on 6 January 2013 and was assessed by a junior doctor, Dr Izzath, who discharged her. Before discharging Ms Graham he discussed the patient, via the telephone, with the on-call consultant, Dr Cleland. She subsequently died.
Breach of duty – the arguments
The Claimant’s core allegation was that Dr Izzath’s decision to discharge Ms Graham was negligent. The Defendant effectively admitted that Ms Graham should have been offered admission to hospital on 6 January 2013. The expert evidence from both parties also pointed to this conclusion.
However, in defence of Dr Izzath’s actions, the Defendant sought to argue that, because he had discussed Ms Graham’s case with Dr Cleland, and Dr Cleland had approved the decision to discharge the deceased, Dr Izzath was effectively absolved of liability for failing to advise Ms Graham that she should be admitted.
Breach of duty – the judgment
The judge rejected this argument. First, he found that the evidence suggested that Dr Cleland was not told the correct information about Ms Graham’s condition, therefore, at [104], his “approval of the proposed discharge was based on inaccurate information. For that inaccuracy Dr Izzath must, in my view, be held liable.”
The Defendant had attempted to rely on a passage in Jones on Medical Negligence (5th ed paragraph 3.115) which stated: “Inexperienced doctors will discharge their duties of care by seeking the assistance of their superiors to check their work, even though they may themselves have made a mistake.” The Defendant sought to make an analogy with Locke v Camberwell Health Authority [2002] Lloyd’s Rep PN 23 in which it was held that a solicitor was generally entitled to rely on the advice of counsel. It was argued that a similar relationship between a senior and junior doctor existed.
In response to this, the judge noted at [105]:
“I am unconvinced by the argument. It seems to me that the nature of the relationship between counsel and his or her instructing solicitor is one that arises in a very different professional context to that of junior and more senior hospital doctors. The differences are numerous, but amongst them is the obvious fact that the instructing solicitor pays counsel for his or her specialist expertise or advice.”
The judge reiterated the well-known principle that a learner driver must show the same standard of care as any other driver. He went on to consider the application of this principle in a number of medical cases, including Wilsher v Essex Area Health Authority [1987] QB 730 in which Mustill LJ (as he then was) rejected the idea of a duty of care specific to the individual, as opposed to the role which they have to perform. The judge noted that Glidewell LJ stated that: “the law required the trainee or learner to be judged by the same standard as his more experienced colleagues.”
He also referred to the more recent Court of Appeal judgment in FB v Rana [2017] PIQR P17 in which a trial judge had held that, in taking a case history, a junior doctor owed a lesser duty of care than a more experienced colleague. This was not supported by the Court of Appeal. The judge in Andrews cited this helpful passage from Thirlwall LJ’s judgment in FB:
“I have had the advantage of reading the judgment of Jackson LJ in this case. He there sets this appeal in the context of the law of negligence generally and of professional negligence in particular. I agree with his analysis and add only that in every case of alleged clinical negligence the court is concerned with the acts and/or omissions of a doctor or other medical professional in the context of a particular task or tasks whether it be the delivery of a baby, the examination of a patient, the performing of surgery, the taking of a history and so on. There is often a correlation between the complexity of the task and the seniority of the doctor but many tasks are carried out by doctors of different seniority; surgery is often performed by a consultant surgeon. When it is performed by a registrar the standard of competence required is the same as that required of the consultant. As Jackson LJ observes, where a doctor in a particular post does not exercise the degree of skill required for the task in hand, the health trust is liable.”
Furthermore, Jackson LJ made clear in his judgment that a doctor is always judged by the standard of the post which they are filling, not according to their level of experience. Consequently, if a trust puts a person in a particular position and they do not have the requisite skill for that position, the trust is liable.
The judge therefore concluded, applying those principles to the case, that any reasonably competent hospital doctor would have advised Ms Graham that she should be admitted, and the fact that Dr Izzath discussed Ms Graham’s case with Dr Cleland did not exonerate him from his failure to exercise reasonable care. The pursuer therefore succeeded on that allegation of breach of duty.
Comment
Andrews is a helpful restatement of well-established legal principles as to the duty of care and the standard required of junior doctors. Whilst at first blush it may seem unfair to require the same standard of care from junior doctors as their more senior colleagues, a number of considerations must be borne in mind.
First, the law does not necessarily require junior doctors to provide an equivalent level of care as their more senior colleagues, but it does require all doctors, junior or senior, to provide a competent and reasonable standard of care appropriate to their role, regardless of their level of experience. This distinction is important to bear in mind.
Second, and connected to this point, is that junior doctors should not be placed in roles unless they have the knowledge and experience to provide a non-negligent standard of care. In so far as they are placed in a role for which they are not sufficiently experienced, and a patient suffers as a result, it is surely right that a Trust is liable to that patient. Liability falls on the Trust as an organisation, not the individual doctor.
