Scrubs: A Tale Of Clinical Negligence

• Published date: 31 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Russell-Cooke Solicitors
• Author: Mr Nathan Weich

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...