8.4 Staff shortages
This then raises the question of what will happen if, in the course of medical
practice, a nurse is required to work under substandard conditions, or with an
obvious shortfall in resources. Can such circumstances be taken into account in
assessing breach of duty? In the following section, which considers shortages of
nursing staff, the problem of inexperience will not be revisited; rather attention is
directed here to problems created by overall shortages in the nursing resources
required to discharge the needs of the patients.
There are a series of cases concerning the provision of nursing staff, many of
which involved relatively straightforward issues of patient supervision.Drydenv.
Surrey County Council /1936) is a case involving two elements of medical
negligence. One involved the failure to remove a swab, leading to a finding of
negligence against the surgeon. However, an action was also brought against the
Council on the basis that the nurses, whom they employed, had failed adequately
to supervise the plaintiff, so that the error went unnoticed. This element of the
claim seems to have been rejected by the court on the basis that, as a matter of
evidence, the plaintiff failed to exhibit symptoms which might have indicated a
complication of this type. Nonetheless, the court did consider that element of the
claim which argued that the responsibility of the Council lay in their failure to
provide competent nursing staff as the ward was clearly understaffed. In fact, there
were 54 beds in the ward and a nursing staff of one sister, one staff nurse and five
probationers. This, as the judge admitted in a masterful piece of understatement,
was not as good as the attention which a person will receive... if... he is fortunate enough to pay for the undivided attention of one nurse or... two nurses'. How- ever, in the view of the judge, neither the presence of such a large number of probationers, nor the fact that the matron had been seeking to gain an increase in staff, establishednegligence by under staffing'.
This, at first glance, may seem rather surprising. In fact, however, it may be
saying little more than, whatever the level of staff, there will be no finding of
negligence unless some injury can be attributed to the lack of nursing care. Where
this is so, the court will be required to consider the level of nursing provision. This
must be done for the particular ward in question, for once again the courts are
dealing with risk of injury, and the nursing provision required in an intensive care
facility may not be that of the ante-natal unit /Knightv.Home Office/1990)).
This point is brought home clearly by the case ofRobertsonv.Nottingham HA
/1997) in which a series of errors of communication in the delivery of obstetric
care resulted in the claimant /suing by her mother) bringing an action in negli-
gence on the basis that her delivery at an earlier stage would have prevented the
brain damage from which she now suffered. In fact the claimant both at trial and
on appeal failed to prove that her brain damage resulted from the breakdown in
communication. Nonetheless, the Court of Appeal emphasised that a health
authority was under a duty to establish a proper system of care. That duty could
not be delegated to others /see alsoMv.Calderdale & Kirklees HA/1998)) and the
standard of care would be judged in accordance with what might reasonably be
expected of a hospital of the size and type. In that case the standard expected was
that ordinarily exercised in a large teaching centre hospital of excellence.
136 NursingLawandEthics