Nursing Law and Ethics

employee instead of or as well as the employer, but generally it would be foolish for
aclaimant to do so when the claimant knows that the issues in the action against
the employer will be identical to those in the action against the employee, and that
the employer will certainly be able to pay damages, whereas the employee may well
not be able to.
Where an employee has been negligent, and the employer is successfully sued in
relation to that negligence, the employer can sue the employee for an indemnity
Listerv.Romford Ice and Cold Storage Co Ltd1956) but in practice this is almost
unheard of in nursing cases. With the rapid expansion of private medicine,
however, it may become a contractual requirement of employment at a private
hospital that the nurse has a policy of professional indemnity insurance which
could pay an indemnity in the event of the hospital's liability. That fact, rather than
any change in the substantive law of negligence, is likely in the future to lead to
more actions against individual nurses.

6.1 The elements of the tort of negligence

To succeed in an action for clinical negligence, a claimant must show:

1) That the defendant owed the claimant a duty of care i.e. a duty to do
something which should have been done, or a duty not to do something
which has been done);and
2) That the defendant has breached the duty;and
3) That the breach of duty has caused some injury, loss or damage to the
claimant of a type which the law acknowledges.

6.2 The existence of a duty of care

Aduty of care between a claimant and a defendant will exist if the following three
criteria are satisfied Caparo Industries plcv.Dickman1990)):

1) The relevant damage was foreseeable;and
2) The relationship between the claimant and the defendant is sufficiently
proximate';and 3) It isfair, just and reasonable' to impose such a duty.

Foreseeability of damage is rarely an issue in clinical negligence cases, but the
proximity of the relationship between the claimant and the defendant often is. The
courts have been reluctant, in cases involving doctors, to say that the necessary
proximity exists beyond the confines of the ordinary doctor±patient relationship,
and have defined that relationship fairly narrowly. Agood example isKapfundev.
Abbey National1998). Here the claimant applied for a job with the first defendant.
The first defendant employed a doctor, the second defendant, to take a medical
view of applicants, based on completed medical questionnaires. The second
defendant told the first defendant that the claimant was, because of her history of
sickle cell anaemia, likely to have unusually long absences from work. The court

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