Chapter 16. Medical Negligence in the Commonwealth Caribbean

• Pages: 452-466

The issue of medical negligence in tort law is one which has generated a number of

interesting legal decisions in courts at varying levels in common law jurisdictions

such as those in the Commonwealth Caribbean. It may be fair to conclude after an

analysis of some decided cases that the treatment of this tort has been evolving

and continues to evolve, based not only on advances in medical technology but on

changing societ al perceptions of principles of fairness in the allocation of blame and

consequences.1

The usual point of departure i n any discussion of a claim in medical negligence

is widely accepted to be the principles enunciated in the decision of McNair J at rst

instance in the Engl ish High Court, in Bolam v Friern Hospital Management Committee.2

There, his Lordship laid out the standard for determin ing whether a medical profes-

sional was to be found negligent in respect of his actions. He stated:

I, myself, would prefer to put it this way, that he is not guilty of negligence if he has

acted in accordance with a practice accepted as proper by a responsible body of medical

men skilled in that particular art. I do not think there is much difference in sense. It is

just a different way of expressing the same thought. Putting it the other way round, a

man is not negligent, if he is acting in accordance with such a practice, merely because

there is a body of opinion who would take a contrary view. At the same time, that does

not mean that a medical man can obstinately and pig-headedly carry on with some old

technique if it has been proved to be contrary to what is really substantially the whole of

informed medical opinion. Otherwise you might get men today saying: ‘I do not believe

in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery

in the way it was done in the eighteenth century.’ That clearly would be wrong.3

The principle expounded in this case has been followed consistently in the courts

of the Commonwealth Caribbean. In Hind v Craig,4 the Court accepted that a medi-

cal man is not guilty of negligence if he has acted ‘in accordance with a practice

accepted as proper by a responsible body of medical men skilled in that particu-

lar art … merely because there was a body of opinion which would take a con-

trary view’. Thus, in Hind, the fact that preparations for surgery by the defendant, a

1 See, in this regard, the trenc hant dissentin g judgment of Lord Nicholls of Birkenhead i n Greg v Scott

[2005] UKHL.

2 [1957] 1 WLR 582.

3 Ibid, at 587.

4 (1983) 19 JLR 81 (Supreme Court of Jamaica). See also Deon arine v Ramlal (2007) Court of Appeal,

Trinidad and Tobago, Civ App No 28 of 2003 (unreported) [Carilaw TT 2007 CA 4]; Holness v

University College Hospital Board of Man agement (2007) Supreme Court, Jamaica, No CL C 123 of

2002 (unreported) [Carilaw JM 2007 SC 72] (screen ing policy for donor blood held consistent with

measures that a rea sonably prudent medical practitioner and blood col lection agency would take).

See also Kellman v Do wes [Carilaw TT 2010 HC 188]; Joerpe land v North West Regional Health Authority

[Carilaw TT 2010 HC 281].

CHAPTER 16

MEDICAL NEGLIGENCE IN THE

COMMONWEALTH CARIBBEAN

ROY ANDERSON*1

* BA, LLB, LLM (Lond), LLM (Georgetown), FCI Arb, Hon Justice of the Supreme Cour t of Jamaica

(Ret ired).

DOI: 10.43 24/97813 5106 5108 -16

10.4324/97813 51065 108-16