Inspired by my fellow trainee Saphia Wyse’s piece on Ross Geller’s marital strife, I thought I would apply the insight that I have gained in the personal injury/clinical negligence department to another beloved TV character’s legal quandaries.
I considered doing another piece on Ross, about the time that he caused Brown Bird scout Sarah to fall and break her leg while demonstrating to Chandler the “Three Ps” of championship squash playing (“power, precision and panache”).
I decided against it after realising that Ross probably had enough problems without being sued in negligence. Instead I’ve picked John Dorian (or ‘JD’) from TV’s Scrubs as my subject, and in particular his journey through a potential claim in clinical negligence.
JD is a (mostly) competent doctor but he makes his fair share of errors, particularly early on in his career – for instance in one episode he forgets what disease his patient has and attempts to work it out by smelling him.
Luckily for him most of his mistakes are easily rectified, and we rarely hear of his patients suffering long-term consequences.
However, while treating a new patient, Mr Blair, for a severe sinus infection, JD becomes frustrated with the slow progress of the treatment and decides to administer a stronger antibiotic intravenously. Unfortunately Mr Blair develops anosmia, or a loss of his sense of smell, for which he blames JD. To make matters worse, he had previously told JD of his concerns about taking these antibiotics, which JD had shrugged aside.
If Mr Blair came to Russell-Cooke with his case, what advice could we give him?
Clinical negligence claims are of course governed by the law of negligence, so we would need to prove that:
- JD owed Mr Blair a duty of care;
- JD breached that duty of care; and
- JD’s breach caused Mr Blair to suffer a loss.
The first part is easily made out here: when a patient is admitted to hospital a duty of care relationship is established. As his treating doctor JD would not be able to argue that this duty did not apply to him.
To establish that JD has breached his duty, we need to look at comparable professional practice: would a reasonable doctor have acted in that way in the same circumstances?
To work this out we would need to instruct a medico-legal expert in Ear, Nose & Throat Medicine to look at all the circumstances and to produce a report on whether JD had acted in accordance with a reasonable body of professional medical opinion.
This can be a lengthy process, one which is far too slow for a 20-minute episode of TV. Instead Ted, the hospital’s lawyer, opens up a filing cabinet in his office and miraculously produces a report which shows that this particular antibiotic had never been associated with anosmia, much to JD’s relief. After more research JD learns about Mr Blair’s history of nasal polyps and comes to believe that his anosmia was caused by manipulation of the sinuses during an earlier procedure.
If this was the case and there was indeed no link between the treatment which was given by JD and Mr Blair’s condition then the claim would fail. Unfortunately this would all seem quite academic to Mr Blair, as he now suffers from a life-changing condition. He is very likely to have suffered several losses as a result, ranging from strictly financial losses, such as future medical bills, to intangible losses, such as mental anguish and pain and suffering – as he tells JD, he will never get to experience the smell of his new-born grandchild’s head.
This episode highlights the sad real-life situation of medical treatment going wrong, albeit shown here through the lens of a TV sitcom. In reality, Mr Blair’s case may be much more complex and involve a far deeper level of investigation. For instance, he may have a claim against whoever treated him previously, as it could turn out that an earlier treatment was the cause of his anosmia. As Mr Blair is only just finding out the consequences of that treatment the limitation period would only start to run from his diagnosis of anosmia, meaning that he has 3 years in which to bring that claim.
I’ve been fortunate to witness a wide range of clinical negligence cases during my 6 months with the team, thanks to their vast expertise and commitment to taking on negligence cases which span the whole gamut of medical disciplines. Mr Blair’s case did not end in success but each case turns on its own facts – it was just lucky for JD that the show’s writers were on hand to give him a legal defence to this potential clinical negligence claim.