Medical Negligence: Non‐Patient and Third Party Claims by Rachael Mulheron
| Date | 01 March 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00849_2.x |
| Published date | 01 March 2011 |
edly sacri¢cing themselves to the interests of men or of collective family struc-
tures. Sometimes, she argues, there is room for a very di¡erent interpretation of
the famous case of Amyand Jake, discussed by Carol Gilligan (In a Di¡erentVoice,
Harvard University Press, 1982). Many feminist ‘care ethicists’ for example, take
the di¡erential reactions of Amy and Jake to moral dilemmas to suggest that an
ethic of care is cal led for as opposed to an ethic of responsibility and rights.
Richardson turns this on its head by claiming that it is a good idea for women
sometimes to be less ‘other focused’ in their thinking and more concerned with
their own welfare.
Alison Assiter
n
Rachael Mulheron, Medical Negligence: Non-Patient and Third Party Claims,
Aldershot: Ashgate Publishing, 2010, 420 pp, hb d70.00.
This is an unusual book only in that it attempts two verydi¡erent goals.The ¢rst
builds upon the author’s well-known comparative research interest in common
law legal systems, notably illustrated by her book The Class Action in Common
Law Legal Systems: A Comparative Perspective (Hart Publishing, 2004).The second
is, however, less expected. The book’s Appendix provides a primer designed to
summarise the legal position in a variety of situations potentially giving rise to
liability forhealthcare professionals (‘HCPs’) who ¢nd themselves at risk of being
sued.
The question of whether such liability maybe established forms the substance
of the inquiry. The book deals systematically with the possible range of non-
patients who may have su¡ered by reasonof the acts and omissions of HCPs.The
authorenumerates withgreat rigourthe range of potential duty situations and the
types of injury that may be sustained. Her comparative interest in decisions of
other common law courts is vindicated in thewealth of decisions (from supreme
courts to small claims courts) which inform the argument. If analysis had been
limited to the UK jurisdictions, the pickings would have been meagre indeed.
Anyone fearful of the consequences of the diminishing number of private law
judgments for the development of the common law would be alarmed at the
repetitious (but true) statements of the author that there are no (or very few)
domestic higher court decisions in point.
Given that the area of law is that of medical negligence, it is not surprising
that a combination of high transaction costs, risk-based funding of claimants,
and cash-limited public sector defendants has produced a trial-averse cul-
ture.When this is added to a reluctance on the government’s part to allow par-
liamentary time for civil law reform and an anti ‘compensation culture’ rhe-
toric in the media, there is a real danger of stulti¢cation within this area of the
common law.
After a useful summary of the frameworks used by the courts to identify the
existence of a duty in novel situations, the book identi¢es ¢ve common themes
n
Universityof theWest of England
Reviews
326 r2011The Authors.The Modern Law Review r2011The Modern Law ReviewLimited.
(2011) 74(2) 322^328
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