Advise As To What Actions The Patient And The Family Have Against The Manufacturer, The Hospital, Or The Doctor. Was The Nurse Also Negligent? Could She Bring An Action Against The Hospital?

1907 words - 8 pages

IntroductionIn order to advise whether Elizabeth, John, Lucy and Ben could bring any actions against XY Ltd Manufacturers, Get-well Mental Hospital, or Dr. Mike, we ought to consider whether they have a prima facie case in the tort of negligence and determine whether they are owed any duties of care and the breach of such duties of care has caused injuries to them.Injury to Primary VictimThe primary victim in this case is Elizabeth. All doctors and nurses owe their patients a duty of care (1). Failure to meet the professional standard of care required of a medical practitioner constitutes a breach.Jacqueline the nurse: duty of careThe immediate cause of injury is evidently due to Jacqueline's negligence. It is foreseeable that Jacqueline's negligence could lead to Elizabeth's injury. Applying the Bolam Test(2), Jacqueline, as the attending nurse in a mental hospital, in addition to following the doctor's instruction, is expected to take care of patients in distress diligently. Had Jacqueline not panicked and negligently topples the cylinder, Elizabeth would not be injured. We could also consider Jacqueline acted negligently by not informing Elizabeth's rapidly worsening condition to Dr. Mike(3)?Could Elizabeth be liable to her own injury?Individual are responsible for taking safety precaution to avoid foreseeable injuries. However, Elizabeth, not only an eight-year-old child but also a mental patient suffering side-effect of a medication, would not reasonably be expected to have the intelligence and experience to avoid the injury(4). She is unlikely to be found contributory negligent.Is Dr. Mike also liable to Elizabeth's injury?Dr. Mike undoubtedly owes a duty of care to Elizabeth as any reasonable doctor in charge would(5). Looking beyond the immediate cause of injury, the "but for"(6) principle applies: would Jacqueline still be panicked and topple the oxygen tank had Elizabeth's behavior not influenced by the drug's side effect? Probably not- unless Jacqueline can be proven to have a tendency to panic or act carelessly(7) or that Elizabeth's condition cannot be stabilized by an alternative medication. Does Jacqueline's negligence break the chain of causation as an intervening cause (Novus Actus Interveniens)? Applying Weiland v Cyril Lord Carpets(8), is it reasonable for Jacqueline to take out the oxygen mask in order to stabilize Elizabeth's short of breath condition? If answers to these questions are positive, then Dr. Mike's negligence is likely to sustain, even though Elizabeth's behavior after the medication has not caused the injury directly.To determine whether Dr. Mike has breached the duty of care and liable to his negligent acts, expert witnesses shall be called for to determine the followings(9):1.Applying the Bolam test(10)-is Dr. Mike's prescription of conformed to the professional practice appropriate for Elizabeth's age and condition? If there are conflicting professional opinions on the treatment, is there an equally competent...

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