Roe v Minister of Health

Clinical negligence must be judged by the knowledge reasonably available when the treatment was given. A court must guard against treating an unforeseen medical misadventure as negligence merely because later knowledge reveals how the injury could have been prevented.

A hospital which undertakes to treat a patient is responsible for negligence in performing that undertaking through its staff. This may include visiting specialists and other skilled practitioners, even though they control their own clinical methods.

Res ipsa loquitur is a rule of evidence. An unusual injury may call for an explanation, but liability depends on whether the evidence ultimately establishes negligence. Careless conduct is actionable only where the resulting injury falls within the risk which could reasonably have been contemplated.

These consolidated appeals concerned two patients who underwent minor operations at a voluntary hospital. Each received a spinal injection of nupercaine from a separate glass ampoule and subsequently became paralysed from the waist down. The trial judge found that phenol had passed through an undetectable crack in each ampoule and contaminated the anaesthetic.

The trial judge entered judgment for the Ministry of Health, as successor to the hospital trustees, and for the anaesthetist. The patients appealed. They alleged negligence in failing to tint the phenol deeply enough to reveal contamination and in handling the ampoules so carelessly that they became cracked.

The central questions were whether the hospital was responsible for the anaesthetist, whether the circumstances established a case under res ipsa loquitur, and whether the contamination resulted from actionable negligence judged by the medical knowledge available in 1947.

1. The appeals were dismissed unanimously. The hospital was responsible for negligence, if any, by the anaesthetist or relevant hospital staff. Nevertheless, the evidence did not establish actionable negligence. No order was made as to costs, and leave to appeal was refused.

2. Somervell, Denning and Morris LJJ held that the anaesthetist was part of the hospital organisation for the treatment undertaken by the hospital. His specialised skill and control over his clinical methods did not prevent the application of respondeat superior. Denning LJ stated a broader rule that hospital authorities are responsible for permanent, temporary, resident, visiting, full-time and part-time staff, subject to practitioners independently selected and employed by the patient.

3. The injuries required an explanation and were capable of establishing a prima facie case. However, res ipsa loquitur was only a rule of evidence. Once the cause had been explained, the decisive question was whether the ascertained facts proved negligence. The defendants had fully explained that phenol entered through cracks which ordinary visual and tactile examination could not detect.

4. The anaesthetist was not negligent in failing to use deeply tinted phenol. In 1947 competent anaesthetists did not know, and could not reasonably have been expected to know, that phenol could seep through undetectable cracks. His conduct had to be assessed by the knowledge then reasonably available, rather than by knowledge acquired after the accident.

5. Any careless handling which created the cracks did not establish liability for the patients’ paralysis. Staff could reasonably expect visible damage to be detected by subsequent inspection and had no reason to foresee contamination through an invisible crack. Per Denning LJ, the paralysis was outside the risk created by the careless handling. Per Somervell and Morris LJJ, the staff’s duty to patients was not breached because neither the hidden damage nor the consequent injury was reasonably foreseeable.

1. Court of Appeal: The patients’ consolidated appeals were dismissed unanimously. The court held that the hospital was responsible for its anaesthetic service but upheld the finding that neither the anaesthetist nor the hospital staff had been negligent. Leave to appeal was refused.
2. Trial court: The judge entered judgment for the defendants. He found that phenol had entered the ampoules through undetectable cracks, but that the anaesthetist and theatre staff were not negligent. The court and citation are not stated in the judgment.