Martin Waller's Claim Against Holly Thomas Negligence?

Martin Waller (Claimant) may have claim against Holly Thomas who is the junior doctor and Dr. Shah. The leading expert and consultant, Dr. Edward Weaver, is not an employee of the practice but is an independent contractor therefore should be sued personally unless it is established there were errors in his recruitment then he may sue St Bartholomew Hospital London. Martin may also have claim against Luton and Dunstable NHS Hospital, firstly as it is vicariously liable for the negligence of its employee and secondly the failure of non-disclosure of risk.

The claimant is owed a duty of care by all the health workers. Dr. Holly Thomas owes duty of care towards claimant as he is a patient on their list and by the trust to provide competent staff

With regards to Dr. Holly Thomas there could be no any negligence could occurred if she “acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art” . It doesn’t matter if some other GP’s would have acted differently, as ‘a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view’ . An error in diagnosis is not negligent as per the view in Whitehouse v Jordan , provided that a body of another GP’s would have acted similarly however in this scenario is unlikely because the junior doctor has prescribed incorrect antibiotics and anti-infection

Although Dr.Shah performed the operation without any negligence or carelessness he has failed to disclose the fact that there is 3 percent of risk although it likely he would have agreed with the operation on a later date. In applying the Bolam’s test there will be no negligence if defendant acted in accordance with the practice which is accepted. Lord Bingham in the case of Chester v Afshar stated that “the patient’s right to be appropriately warned is an important right, which few doctors in the current legal and social climate would consciously or deliberately violate . In the case of Sidaway the House of Lords recognized the patients right to make his own decision yet changes were slow, (Blyth v Bloomsbury HA) .

However, Sidaway’s decision is unsatisfactory which was pronounced in the case of Montgomery v Lanarkshire HB . Now Montgomery has pronounced that risk disclosure is patient centered. With the latest ruling, the courts have at last afforded this important right the protection it deserves. Therefore, based on the case of Montgomery Martin would have a successful