Medical Malpractice in UK Law

It is a tragic fact that babies are quite often born with brain damage although all reasonable skill and care has attended the delivery. In order to get a claim off the ground against the MoD, assuming the existence of a duty of care, it was necessary to investigate what had happened at the birth. This A's parents were able to do by initiating the process that produced the investigation by the Gutachter Kommission.

Second, the principle behind it is the court's repugnance in permitting its process to be used in the face of the executive's misuse of state power by its agents. To involve the court in convicting a defendant who has been the victim of such misuse of state power would compromise the integrity of the judicial system.

First, I had already made my decision and communicated it to the parties: this is not a case where judgment had been reserved. Fourth, even if the IOP (albeit differently constituted) has simply changed its mind as to the sanction that would have been appropriate in January 2013, that is not of itself a reason why my appraisal of the situation — reached independently — should change.

In my judgment, the features of the special relationship between the MoD and Service personnel and dependant in Germany, to which I have referred, imposed a duty on the MoD to provide access to an appropriate regime of secondary healthcare in Germany. The MoD's assumption of this duty met the reasonable expectations of Service personnel and their families.

It was for dilatation and curettage. She was quite a healthy woman. She was put under a general anaesthetic. The operation was performed. She was moved from the operating theatre to the recovery room. Whilst she was still unconscious she began to go blue. The doctors call it cyanosis. This was a sign of trouble. It showed that her breathing had been affected. She suffered what the doctors call "cardiac arrest". She will always need total care either at home or in an institution".

[19] Counsel agree that we have to apply the test set out in McMahon v Council of the Law Society of Scotland (2002 SC 475, at paras [13]-[16]); that is to say, we should look at the decision of the Panel in the light of the whole circumstances of the case, always having due respect for the expertise of the Panel and giving to its decision such weight as we should think appropriate.

If courts make findings of negligence on flimsy evidence or regard failure to produce an expected result as strong evidence of negligence, doctors are likely to protect themselves by what has become known as defensive medicine, that is to say, adopting procedures which are not for the benefit of the patient but safeguards against the possibility of the patient making a claim for negligence.