(A) The personal liability of medical practitioners

The general rule is that the personal liability of medical practitioners, whether surgeons, physicians, nurses or ancillary staff, rests on proof of negligence whether put as a matter of contract or tort. In Slater v Baker of 1767 the plaintiff engaged the defendant surgeon for a fee of a guinea to treat his broken leg, but the surgeon fitted him with a metal instrument as a result of which the leg became useless.¹⁶⁰ The plaintiff claimed damages from the surgeon for his ‘ignorance and lack of skill’ in carrying out his undertaking to him, that is, in contract. While three surgeons gave evidence as to the surgeon’s general competence, they agreed that he had not followed normal practice, one witness having not ‘the least idea of the instrument’ used.¹⁶¹ The jury’s verdict holding the surgeon guilty was upheld by the Court of King’s Bench, which noted that even very skilful professional men can act ignorantly and unskilfully in particular cases and here ‘it seems as if Mr Baker wanted to try an experiment with this new instrument’.¹⁶² At this stage, therefore, a medical practitioner could be liable in (p.288) contract only for negligence even as regards a product supplied for the purposes of treatment. However, English courts held medical practitioners liable for the consequences of their negligence even in the absence of a contract with their patients:¹⁶³ for if payment had to be shown ‘in all cases of surgeons retained by any of the public establishments, it would happen that the patient would be without redress’.¹⁶⁴ So, neither the absence of privity of contract nor even the absence of any payment should prevent a patient for claiming in tortious negligence.¹⁶⁵

This general founding of the personal liability of medical practitioners on negligence has continued until the present day. As I have earlier explained, the courts have set out in the Bolam test a standard of care which is both more demanding than for persons generally (in that greater skill is required of those who profess it or accepted positions which require it) but also more generous (in that negligence will not normally be found if a competent body of professional opinion holds that the action taken by a defendant was reasonable, even if others would take a different view).¹⁶⁶ This approach applies to medical practitioners in respect of diagnosis, treatment and advice¹⁶⁷ and makes clear the continuing crucial role of expert evidence in determining the content of medical duties of care. Moreover, while on occasion a court has found that the circumstances in which a patient has suffered injury do allow for the application of the maxim res ipsa loquitur,¹⁶⁸ more recently the usefulness of the maxim in this context has been doubted where expert and factual evidence has been called at trial,¹⁶⁹ in keeping with the more general decline in acceptance of its usefulness.¹⁷⁰

Moreover, though the authorities conflict, more recent authority denies any difference in the standard of care owed either by individual practitioners or service providers in a public context, even where this is the prison service. So, while it has been held that the prison service did not owe the same standard of care to a prisoner known to have suicidal tendencies as would be required of a mental hospital,¹⁷¹ later it was held that a pregnant woman prisoner was entitled to expect the same level of care for herself and her child as a person at liberty, subject to the constraints of escort or control on her movement.¹⁷²

Conversely, the courts have avoided the imposition of any stricter liability on the basis of contractual warranty in respect of diagnosis or treatment generally. So, for example, the Court of Appeal has refused to interpret a contract to perform a vasectomy as importing an obligation that the patient would be rendered sterile even though he was told that the operation was ‘irreversible’, instead finding only an obligation to take reasonable care in warning of the possibility of future fertility, as a reasonable person would not have expected a guarantee given the inexact nature of medical science.¹⁷³