(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward. She was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several distinguished doctors gave evidence that they would not, in the circumstances, have treated with penicillin.
Held: The defendant was negligent. There was a lacuna in professional practice and that the defendant had knowingly taken an easily avoidable risk which elementary training had instructed him to avoid. As, in the court’s judgment, there was no proper basis for the practice of not giving penicillin it was not reasonable for the medical practitioner to expose his patient to that risk.
In cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence.
Sachs LJ said: ‘When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna-particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of patients. On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr. Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas.’
Sachs LJ, Denning MR, Diplock LJ
[1993] 4 Med LR 393, Times. 9 May 1968
England and Wales
Cited by:
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Hannigan v Lanarkshire Acute Hospital NHS Trust SCS 21-Sep-2012
Opinion – The pursuer alleged negligence in the defenders conduct of a hysterectomy. . .
Cited – Ecclestone v Medway NHS Foundation Trust QBD 12-Apr-2013
. .
Cited – ICL Tech Ltd v Johnston Oils Ltd SCS 25-Sep-2013
. .
Cited – Coyle v Lanarkshire Health Board SCS 24-Oct-2013
. .
Cited – Dineley v Lothian Health Board SCS 29-Aug-2007
Opinion . .
Cited – Magill v Royal Group of Hospitals and Another QBNI 28-Jan-2010
. .
Cited – Ministry of Justice v Carter CA 18-Jun-2010
. .
Cited – Ganz v Childs and Others QBD 11-Jan-2011
. .
Cited – Wisniewski (a Minor) v Central Manchester Health Authority CA 1-Apr-1998
Whether there existed a respectable body of medical opinion which would have taken the same steps as the doctor, leaving in the circumstances, the baby with d irreversible damage to his brain in the 13 minutes immediately prior to his birth at . .
Cited – Dougan v Lanarkshire Acute Hospitals NHS Trust OHCS 3-Apr-2001
. .
Cited – Mirza v Birmingham Health Authority QBD 31-Jul-2001
The claimant had undergone heart surgery as an infant in 1976, and claimed damages for professional negligence. The procedure involved a dangerous procedure, a resection of coarctation. As a consequence, the Claimant suffered a number of problems . .
Cited – Honisz v Lothian Health Board and others SCS 10-Feb-2006
Inner House . .
Cited – Scott v Lothian University Hospitals NHS Trust SCS 13-Jun-2006
Outer House . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence
Updated: 22 January 2022; Ref: scu.183813
