An Essay on Clinical Negligence

4502 Words Feb 7th, 2012 19 Pages
An Essay on Clinical Negligence “We have always thought of causation as a logical, almost mathematical business. To intrude policy into causation is like saying that two plus two does not equal to four because, for policy reasons, it should not.” (Charles Foster NLJ 5/11/2004 page 1644).

To what extent do you consider that Charles Foster is correct in that causation and clinical negligence should be a “mathematical business” and the courts have, by introducing matters of policy, confused what should be a logical approach?


In the article of “It should be, therefore it is”1, its author, Charles Foster examined the surprise House of Lords judgment in Chester v Afshar2, what he described as “an exercise in
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Therefore, it is crystal clear that the harm of the child’s death would have occurred even if the doctor had met her duty of care by attending the patient. Despite the court was not willing to settle for this conclusion and instead enquired into whether the doctor’s intended failure to intubate if she had attended would have been clinically negligent in itself. This implies that it was considered by the court at all is an indication that, if some serious harm has occurred, the courts will take into considerations the entire circumstances of the case before coming to the conclusion as to whether the causation requirement has been satisfied.

4. [1968] 1 A11 ER 1068.
5. [1997] UKHL 46, HL. The approach can be seen even more controversially in the 2004 case of Chester v Afshar6, which Charles Foster has made his comment on as mentioned. This case involved a doctor’s clinical negligent failure to warn a patient about the risk inherent in a medical procedure. There exists a need for the patient’s consent to medical treatment to be fully informed. The complication with respect to causation arose because the patient admitted that she would have still undergone the surgery even if she had been warned about the risks of paralysis which unfortunately materialized during the

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