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Monday, 17 November 2014

Is a surgeon negligent because he's having a bad day at the office?

How about a nice tricky legal question to start the week?

I have to confess that I am not at my best on Mondays. I wouldn’t say that I am in the Boomtown Rats league but it is not normally my favourite day! So let’s say I bump my car on the way home. And let’s say it isn’t clear whether or not it was my fault. Could the other driver say it must be my fault? Could he say that everyone knows I’m not at my best on Mondays, so that that must be taken into account?

In other words; to what extent can external factors influence a decision as to whether I have or haven’t been negligent? The answer might appear obvious but that very problem has exercised the Court of Appeal in a recent Medical Negligence case.

Mrs Laughton underwent a left hip replacement operation on 30th July 2007. The surgeon was Mr Shalaby. The operation was not a success. She needed a further operation about 18 months later. It was necessary for the second surgeon to re-attach the gluteus medius muscle to the trochanter bone. Mrs Laughton’s case was that Mr Shalaby had negligently failed to do this at the time of the original surgery.

The case went to trial and experts for each side had differing opinions. The expert for Mrs Laughton said that it was self evident that Mr Shalaby had not re-attached the muscle and therefore he was negligent. The expert for Mr Shalaby said that the muscle could have come away after the surgery, that this was a known complication and did not in itself indicate negligence. The judge preferred the evidence of the latter. He decided that there no negligence and Mrs Laughton lost. She appealed to the Court of Appeal.
At the appeal hearing an attempt was made to rely on extraneous factors. The surgeon had been made subject to conditions by the GMC. This was due to complaints about the standard of his surgery in other cases. He had also, allegedly assaulted a bus driver and been suspended from practice. It was suggested that all of those factors would have put him under stress and more likely to make a mistake.

This was dismissed by the Court of Appeal. Mr Shalaby should been open about these matters. But they made no difference to any assessment of the standard of surgery offered to this particular patient on this particular day. There was no evidence of any similar problems in other hip replacement operations carried out by Mr Shalaby.

Lord Justice Longmore said -

‘The fact that a doctor is under stress does not of itself mean that he is more likely than not to have been negligent on a particular occasion.

Those who are interested can see the full decision here –

This is a significant decision. It means that in a Medical Negligence case the court has to focus on the incident itself and cannot take into account unrelated factors in the absence of evidence of negligence. That doesn’t mean that the court will never consider other factors. If Mr Shalaby had a habit of failing to attach the gluteus muscle then that might be used against him. But a claimant cannot rely on unrelated factors to try and swing the pendulum their way.

All of which means that if I bump into your car tonight, you can’t say it’s my fault just because it’s Monday!

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