The recent Court of Appeal decision in FB -v- Princess Alexandra Hospital NHS Trust [2017] reviewed the standard of care the law ought to apply to junior doctors. Lord Justice Jackson states that it reflects an ‘imperfect compromise’, designed to achieve a balance between the interests of the patient (who may have played no part in the choice of their treating doctor) and fairness to the individual accused of negligence, bearing in mind the skills that they possess and what can reasonably be expected of them.

FB -v- Princess Alexandra Hospital NHS Trust

A 25 year old emergency medicine SHO, described as relatively inexperienced, was alleged to have been in breach of duty in failing to elicit an adequate history of the patient’s condition. At first instance, the claim was dismissed.

The primary ground of appeal was that the judge had erred in law by considering the alleged breach of duty in the context of the standard of care to be expected of a competent SHO. It appeared from the reasoning in the judgment (albeit that this was not expressly confirmed) that the judge would have found for the claimant on breach of duty if it had been an experienced doctor, who had failed to elicit the relevant history.

The Court of Appeal stated, ‘…in every case of clinical negligence, the court is concerned with the acts and/ or omissions of a doctor or other medical professional in the context of a particular task’. It was submitted by the claimant (and accepted by the Court of Appeal) that history taking was a basic task which was within the competence of an SHO. Therefore, it was held that the judge at first instance had erred in finding that there was a lower standard of care for an SHO, than for a consultant, in the context of history taking in the emergency department.

Accordingly, the appeal was unanimously allowed and breach of duty against the SHO was established.

Analysis

This decision does not set a new precedent; the cases of Jones -v- Manchester Corporation [1952] and Wilsher -v- Essex Area Health Authority [1987] each considered the standard of care required of inexperienced doctors. In both cases, a medical error occurred with disastrous consequences for the patient and it was argued that it could not be regarded as a breach of duty when judged by the standards of what could reasonably have been expected of the particular doctor given their lack of experience. However, the court held that inexperience is no defence and the doctor must be judged by the standard of skill and care appropriate to the post which he or she is fulfilling.

Just as the learner driver is judged by the standards of an experienced driver, because other road users are entitled to expect a standard level of driving competence (Nettleship -v- Weston 1971), patients are entitled to expect that their treating doctor is suitably skilled and experienced to provide their particular treatment. As Lord Justice Jackson forewarns in the case of FB, ‘The health authority or health trust is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand’.

The case of FB serves as a timely reminder; to hospitals, to take steps to ensure that their junior doctors are suitably skilled and experienced for the relevant post or task; and to junior doctors themselves, to recognise and seek assistance when they are out of their depth.