How does a defendant clinician or hospital in a medical negligence claim establish a defence under s5O of the Civil Liability Act 2002?
Over the last 16 years, the legal approach to determining a clinician’s liability for medical negligence has been evolving since the common law was transformed with the commencement of Part 1A of the Act.
From Dobler and McKenna to Sparks and now Gould, different judicial approaches to the legal construction of s 5O of the Act means that there is to date no definitive formula for defendants to rely on. That said, while litigants wait for the law to become more settled, there is certainly a prudent course available that defendants should take in relation to pleading and establishing the s 5O defence.