''Roe v Minister of Health''

954 Year 954 ( CMLIV) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – A Hungarian army led by Bulcsú crosses the Rhine. He camps at Worms in th ...

2 All ER 131 is an

English tort law English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requi ...

decision of the

Court of Appeal of England and Wales The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Courts of England and Wales#Senior Courts of England and Wales, Senior Courts of England and Wal ...

which has had a significant influence on the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

throughout the common law world.

Facts

Roe and Woolley underwent surgery on 13 October 1947 at the Chesterfield Hospital. It was managed under the general supervision of the Minister of Health. Before entering the operating theatre, an

anaesthetic An anesthetic (American English) or anaesthetic (British English; see spelling differences) is a drug used to induce anesthesia ⁠— ⁠in other words, to result in a temporary loss of sensation or awareness. They may be divided into two ...

consisting of Nupercaine was administered by means of a

lumbar puncture Lumbar puncture (LP), also known as a spinal tap, is a medical procedure in which a needle is inserted into the spinal canal, most commonly to collect cerebrospinal fluid (CSF) for diagnostic testing. The main reason for a lumbar puncture is to ...

. The spinal anaesthetics had been given by Dr.Malcolm Graham. At that time, it was common practice to store such anaesthetic in glass ampoules immersed in a

phenol Phenol (also called carbolic acid) is an aromatic organic compound with the molecular formula . It is a white crystalline solid that is volatile. The molecule consists of a phenyl group () bonded to a hydroxy group (). Mildly acidic, it req ...

solution to reduce the risk of infection. Unknown to the staff, the glass had a number of micro-cracks which were invisible to the eye but which allowed the phenol to penetrate. When used, the phenol-contaminated anaesthetic caused permanent

paraplegia Paraplegia, or paraparesis, is an impairment in motor or sensory function of the lower extremities. The word comes from Ionic Greek () "half-stricken". It is usually caused by spinal cord injury or a congenital condition that affects the neural ...

. A later analysis suggests that the most probable cause of the paralyses was an acidic descaler which, by an oversight, had been allowed to remain in the sterilizing water boiler.

Decision

As the law then stood, to find

negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...

proved, there must be a

duty of care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establis ...

, the defendant must have breached that duty, and that breach must have caused the loss or damage sustained by the plaintiff. The

standard of care In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care. The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been b ...

required of defendants was judged by applying an objective test, considering what a "reasonable man" would or would not have done in the same situation. In ''Hall v Brooklands Auto Racing Club'' (1933) 1 KB 205, it was held that it was the duty of the operators to ensure that the racing track they had designed was as free from danger as reasonable care and skill could make it, but that they were not insurers against accidents which no reasonable diligence could foresee. Similarly, in ''Glasgow Corporation v Muir'' (1943) 2 AER 44, a defendant was not negligent in allowing a group to enter a tea room to escape bad weather, because the "reasonable man" would not have foreseen that these invitees would be injured (scalded) upon entering the tearoom. In the Supreme Court of Judicature, court of appeal the learned Justices said as follows: Denning LJ. "We must not look at the 1947 incident with 1954 spectacles." It was held that the micro-cracks were not foreseeable given the prevailing scientific knowledge of the time. Thus, since no reasonable anaesthetist would have stored the anaesthetic differently, it was inappropriate to hold the hospital management liable for failing to take precautions. That the profession had changed its practice in the light of experience proved that the profession was responsible in its self-regulation. In 1954, anaesthetists coloured the phenol with a dye. If a vial became contaminated, the dye showed inside the vial. These vials were then discarded. But, given that the hospital was applying the best practice of the time, there was no negligence. Somervell LJ. "It is now clear that phenol can find its way into an ampoule of nupercaine stored in a solution of phenol through cracks which are not detectable by the ordinary visual or tactile examination which takes place in an operating theatre — these cracks were referred to in the evidence as "invisible cracks" — or through molecular flaws in the glass. The attention of the profession was first drawn to this risk in this country by the publication of Professor Macintosh's book on Lumbar Puncture and Spinal Anaesthesia in 1951. In 1947 the general run of competent anaesthetists would not appreciate this risk. (Dr Mcintosh, Day 3, 18, 19, 42-E; Dr Organe, Day 8, 61; Dr Cope, Day 9, 25). Dr Graham certainly did not appreciate this as a risk. I accordingly find that by the standard of knowledge to be imputed to competent anaesthetists in 1947, Dr Graham was not negligent in failing to appreciate this risk and a fortiori the theatre staff were not negligent." Morris LJ "It is now known that there could be cracks not ordinarily detectable. But care has to be exercised to ensure that conduct in 1947 is only judged in the light of knowledge which then was or ought reasonably to have been possessed. In this connection the then-existing state of medical literature must be had in mind. The question arises whether Dr Graham was negligent in not adopting some different technique. I cannot think that he was"

Facts

Decision

References

See also