Recent Developments In The Hospital Cases
| Author | C. Grunfeld |
| Published date | 01 November 1954 |
| Date | 01 November 1954 |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00274.x |
RECENT DEVELOPMElNTS IN
THE
HOSPITAL
CASES
THE
developments here discussed are primarily those that have
taken place since
Cassidy
V.
Ministry
of Health
[1951]
2
Q.B.
343.l
The hospital cases have been made the subject of a detailed survey
because they’ have attained a special significance in employment law
and the law of tort. The entire relationship in law between master
and servant and between professional men and women and their
employers and the public
is
involved in them and has been
illuminated through them.
In
particular, in the legal history of
the adaptation by the courts of the master and servant relationship
to modern conditions of employment, they are likely to be regarded
as having occupied a position of critical importance.
But, to give proper weight to the various aspects of these
decisions, four matters deserve to be commented upon separately.
1.
The
Stmdurd
of Professional
Skill
and Care
Some apprehension has been murmured in medical circles that
the standard of professional skill and care required by the courts
may be set unrealistically high. The judgments, including especially
the most recent, show this concern to be unfounded. Reasonable
skill and care are properly demanded by the courts of those engaged
in medicine, as of the members of other skilled professions; and the
criterion is applied with
a
clear regard to the interest of the medical
profession itself and of the public in the protection of doctors and
“
medical auxiliaries
”
who have observed the standards of their
calling, and in the continued advancement of medical science.
The clearest expression of judicial policy in this respect is found
in the judgment of Denning L.J. in
Roe
v.
M.
0.
H.
[1954]
2
W.L.R. 915. “Medical science has conferred great benefits
on
mankind but these benefits are attended by considerable risks.
Every surgical operation is attended by risks. We cannot take
the benefits without taking the risks. Every advance in technique
is also attended by risks. Doctors, like the rest of us, have to
learn by experience
;
and experience often teaches in a hard way
”
(923).
And,
‘‘
we should be doing a disservice to the community
at
large
if
we were to impose liability on hospitals and doctors
for everything that happens to go wrong. Doctors would be led
to think more of their own safety than of the good of their patients.
Initiative would be stifled and confidence shaken.
A
proper sense
of proportion requires us to have regard to the conditions in which
hospitals and doctors have to work. We must insist on due care
1
For
an important and influential analysis
of
Cassidy’s
case,
see
Prof. Xahn-
Freund’s
note
in
14
M.L.R.
(1951)
504.
547
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