Question

Whilst Sheila is sedated in hospital, in preparation of surgery on her waist after falling at training with the national cricket team, the attending nurse asks her for her name, date of birth, and reason for being in the hospital. In her drugged state, Sheila raises her left hand and gestures to the wrist. The nurse marks the left wrist with a large distinctive X. The surgeon in the theatre soon begins the operation on Sheila's left wrist but realises that this is not where the injury is. He switches up to the incision and starts to operate on the right wrist. The operation is a success, but Sheila is now unable to resume training early and is unable to travel with the national team to the world cup tournament. Sheila wants to see the hospital and the doctor for her injuries Question 4 Part B: Assume that the duty of care exists With the aid of case law, explain what Sheila needs to establish in order to prove that the duty was breached and that there was resultant damage.

Answer 1

This case comes under doctrine of res ispa loquitur.

Generally professional negligence of doctor must be proved in the court by expert evidence of another physician.

the patient need not prove negligence in case where the rule of res ipsa loquitur applies which means the thing or fact speaks for itself.

error is so self-evident that the present lion need not prove the doctor's guilt with medical evidence the doctor has to prove his innocence.

This rule is applied when the following three conditions are satisfied

1.in the absence of negligence the injury would not have occurred that i.e. occurrence ordinarily bespeaks negligence.

2. doctor head exclusive control or the injury producing instrument/ treatment.

3. Pageant was not guilty of contributory negligence i.e. injury was not the result of his on voluntary act or neglect.