the link with cancer, attitudes are changing again. Further, the acknowledgment of
the risk and any negligence disregarding it are judged by the standards of the time
of the incident and not when any case comes ultimately to court. As Lord Denning
said in Roe v. Ministry of Health /1954), a case concerning contaminated
anaesthetic:
`He did not know that there could be undetectable cracks, but it was not
negligent for him not to know it at that time. We must not look at the 1947
accident with 1954 spectacles.'This raises the question of how a breach of the standard of care may be
determined.
Generally, it will require some balance between the good which the practitioner
seeks to achieve by intervention and the risks run by a particular course of conduct
in the light of the availability of precautions or safeguards. This may be illustrated
by the case ofMahonv.Osborne/1939) in which there was seemingly obvious
negligence in terminating an operation without removing a swab which was left
under part of the liver and which caused a complication which eventually resulted
in the death of the patient. Lord Justice Scott was prepared, however, to recognise
circumstances where the patient has been taking the anaesthetic badly, and is suffering from shock' such that the doctor is anxious to terminate the operation and exercises discretion so thatas soon as he has completed the removal of all
swabs of which he is at that moment aware, he asks the sister for the count, and
forthwith starts to close the wound'. In the judge's view, a finding of negligence
would not be inevitable in such a situation. Here, the importance attached to
preserving the life of a patient might outweigh the risk inherent in hastening the
swab count.
It is possible to envisage a wide variety of situations within which risks,
ordinarily intolerable in good medical practice, are run in situations of dire
emergency. In the words of Lord Justice Mustill inWilsher:
`full allowance must be made for the fact that certain aspects of treatment may
have to be carried out in... ``battle conditions''. An emergency may overburden
the available resources, and, if an individual is forced by circumstances to do too
many things at once, the fact that he does one of them incorrectly, should not
likely be taken as negligence.'Note that the absence of resources is not of itself a defence, but the fact of the
emergency may change the circumstances in which nursing is conducted to the
point that if an ordinarily competent nurse might reasonably have made a
particular error under such pressure, then the court will not find negligence. This
is well illustrated by a case from Manitoba,Roydchv.Krasey/1971) in which a
doctor examined an intoxicated patient in a lorry at 1AMwith the aid of a torch.
There was no negligence in his failure to diagnose injuries to the chest, ribs and
lungs. One way of explaining this is to say that, under an objective standard, the
difficulties in discharging the duty of care would have faced any practitioner
working under such circumstances.
Responsibility,LiabilityandScarceResources 135