Whitehouse v Jordan
An error of clinical judgment may or may not be negligent, and the question is whether it is an error that would not have been made by a reasonably competent professional acting with ordinary care.
Facts
Stuart Whitehouse was born with severe brain damage after a difficult birth. The senior registrar, Mr Jordan, had attempted to deliver the baby with forceps, pulling several times, before deciding to deliver by caesarean section. The claimant alleged that Mr Jordan had pulled too hard and too long with the forceps, causing the brain damage. The trial judge found that he had been negligent, but the Court of Appeal reversed the decision, and Lord Denning MR said that an error of clinical judgment was not negligence.
Legal principle
The House of Lords dismissed the appeal, upholding the finding that Mr Jordan had not been negligent, but rejected Lord Denning's statement that an error of clinical judgment could not be negligence. Lord Fraser said that the true position is that an error of judgment may, or may not, be negligent, depending on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. The evidence did not establish that Mr Jordan had been negligent.
Related cases on clinical negligence, informed consent and wrongful birth
- Bailey v Ministry of Defence [2008] EWCA Civ 883, [2009] 1 WLR 1052
- Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
- Bolitho v City and Hackney Health Authority [1998] AC 232
- Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134
- Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, [2019] AC 831
- Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176
- Hotson v East Berkshire Area Health Authority [1987] AC 750
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