Date: Fri, 3 Feb 2006 08:26:46 -0500

From: David Cheifetz

Subject: Standard of care in contribution proceedings

This is what I mean by terminology problems. That's the Canadian standard too - but you miss my point. It's a problem of terminology. Inexperience in relation to what? If it's inexperience meaning the physician didn't use the skill and care of a reasonably competent doctor in that post, inexperience is irrelevant. But, what if an extremely rare condition presents that the reasonably competent physician etc. would not be expected to recognize? Then what?

The physician may have exercised the required level of skill and but still have made a mistake because of the rarity of the problem that presented; in other words, that physicians inexperience with the particular problem that presented, not his or her lack of the usual level of skill and care.

David

----- Original Message -----
From: "Robert Stevens"
To: "David Cheifetz"
Sent: Friday, February 03, 2006 4:48 AM
Subject: Re: ODG: Standard of care in contribution proceedings

I agree with you that Doctor A's inexperience may be relevant to the ultimate apportionment but I don't see what point it illustrates. A's inexperience could well be relevant in the question of whether A was at fault at all - the liability question.

It is not. Dr A is under a duty to treat with the skill and care that a reasonably competent doctor in that post would provide: see Wilsher v Essex Area Health Authority [1987] 1 QB 730. Dr A cannot rely upon her own inexperience in order to say she has not been careless. This factor is irrelevant at the liability stage.

However, in terms of the apportionment as between hospital and doctor (or between doctor and anaesthetist) inexperience is relevant (Jones v Manchester).

Without checking a Canadian torts text, I don't know what the relevant Canadian authority is, but I would be surprised if a doctor was able to rely upon her personal inexperience as an exculpating factor when a claim for negligence is brought.

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