Hospital Management Committee

In medical law, the “standard of care” is determined as per the “Bolam test” that was set in the case of “Bolam v. Friern Hospital Management Committee”. In medical proceedings, the main issue that takes place is whether the doctor has used the “standard of care” that is obligatory by law. The standard of care that is to be used by the practitioner should be reasonable in nature. This should be judged by considering all the conditions surrounding a given case, and by assessing the intrinsic variety in the practice of medical. In determining the “standard”, the court used the Bolam test. This essay includes the limitations in the Bolam test and examines the shift in the way the legal standard should be judged in medical litigation. The implications of the recent shift are relevant to all the doctors, especially in a matter that is litigious in nature.

Bolam Test – The Traditional View:

In the year 1954, John Hector Bolam was suffering from clinical depression and as a cure to his depression; he underwent the electro convulsive therapy (ECT). During that time, medical opinion differed as to what should be the best way to decrease the risk of injures that was an outcome of the convulsions. In the case of Bolam, manual restraint to the convulsions was not possible and because of it, he fractured his pelvis. Bolam filed case against the doctor saying that he failed to exercise his reasonable care and he breached the duty of care while providing treatment to him in the form of ECT.

The “locus classiscus” of the test for standard of care was developed from the Bolam case. In the opinion of Justice Mc Nair, the doctor did not breach his duty of care and was not negligent as similar medical professionals supported the doctor’s opinion. In other words, a person cannot be held liable for negligence, if he or she has acted in according with such a practice that is affirmed as non negligent by a body of other medical professionals.

Thus, if a body of responsible and knowledgeable peers supports a medical practice, then the test of Bolam shall be considered as satisfied and the medical practitioner shall be deemed to meet the requisites of standard of care. The Bolam test was used in many cases that were related to medical litigation. The House of Lords in the case of Maynard provided an endorsement to the test of Bolam. The House of Lords held that if a Judge has preferred one body of opinion to the opinion of other specialists, it is not sufficient to establish negligence in the part of the practitioner. Hence, for treatment, carelessness is not established by preferring one body of qualified views to another. The reason why the House of Lords took such a decision is due to the differences of practice and opinion in the field of medical profession. One answer that is different from all the other answers cannot solve the issue of negligence in medical cases and thus requires a professional judgement. The preference of the Court may differ from one opinion to another opinion, however, such differences is not enough to hold the doctor liable for medical negligence.

Therefore, the conclusion of the Bolam test lies in the fact that a doctor cannot be held negligent for an action, if people who are experts in the field of medical confirm his action as reasonable. At the appellate level, the test has been approved several times and is protected in law.

Protection of doctors by applying the test of Bolam:

The doctors enjoyed many years of protection by applying the Bolam test in several cases involving the issue of medical negligence. In the case of “Whitehouse v. Jordan”, the Court of Appeal over turned the decision of the trial judge. In this case, the claimant suspected negligence in the performance of a trial of forceps delivery, which consequently left the claimant injured with brain. The Court of Appeal held that the doctor was not negligent as an error of judgement cannot be regarded as negligent action.  Hence, doctors are allowed to make mistakes if a body of responsible doctors having similar skills and experience affirms the mistake of the doctor and declares that he used his “standard of care.” In the case of “Maynard v. Midlands Health Authority”, the doctors also benefitted from the application of Bolam test. In this case, misdiagnosis was provided to the disease of Hodgkin; however, the doctor escaped liability as a group of professionals supported the same and that protected the doctor from medical liability. Lord Scarman held that there is no explicit law that prohibits a judge from preferring one opinion to the opinion of another expert. In this case, the doctor successfully escaped the liability of negligence.

In the case of De Fretias v. O Brien, the claimant went through an orthopaedic surgery to connect two lumbar backbones and a second procedure to cure the difficulty related to “nerve root compression.” The performance of the second procedure was at question that led to seepage of cerebrospinal fluid causing pain. The defendant called for an professional opinion that comprised of spinal surgeons. The opinion of this group was likely to differ from a larger group of neurosurgeons. However, the Court accepted the opinion of the small body and stated it reasonable.

Analysis of the Bolam Test:

The important criticism of the “Bolam test” is that it falls short to differentiate between “what is done” and “what ought to be done.” To judge if an action is neglectful or not, it should be judged under the criterion of “what ought to be done.” An action that is already done, even if done by many people, could still be regarded as neglectful if it categorises itself as part of “what ought to be done.” The Bolam test seems to be relying too much on the factor that is already done, that is, an action that has already taken place. This allows the medical practitioners to set legal standards for themselves by taking the support of “responsible” body of experts. This should not be allowed in medicine as in other areas of profession such legal responsibility cannot be created.

The Bolam test makes the approval of practice by experts the only way to set the standard even if there are matters requiring knowledge or expertise that is technical in nature. The Bolam test can be applied to cases that require medical litigation and treatment. However, this test cannot be applied where disclosure is required for all matters relating to medical intervention. These issues are primarily issues pertaining to ethics and code of practice of medical practitioners rather than being medical in nature. The Bola test fails to address the ethical issues pertaining to medical practitioners.

In the case of Sidaway, the issue was pertaining to the disclosure of information that should have been revealed to the patient. The House of Lords held that “non-disclosure” in a given case should be condemned as breach of duty on the part of the doctor and this issue should be addressed by applying the Bolam test. This approach was criticised by many as the main issue in Bolam test was not related to non-disclosure or any other ethical matter rather it contained an issue that was biological and medical in nature. This approach was criticised as being extremely deferential to medicinal opinion when measured against the rights of a patient to be told about the dangers that were associated with his treatment. The Bolam test completely negates the idea of informing the patient about the risks associated with any given treatment. According to the doctrine of consent, a patient should be informed about all the material risks that are inherent to any treatment. Obtaining consent does not only mean informing the patient about risks associated but also receiving consent for the same. The Bolam principle was also applicable to the ethical issues in which the patient did not have the capability to understand the medical risks associated with any given medical practice. In the case of Re F, the issue was whether sterilisation can be performed on a person who is 36 year old however, had a psychological age of five. A group of therapeutic experts supported this as being in the best interest of the patient. This was a case involving ethical issue in question, the Court could have utilised his discretion to decide the issue however the Court relied on the group of medical experts to decide the issue in question. The “Bolam test” seems to have crossed the limitations of analysis and medical treatment, enhancing the role of the specialist to that of an arbitrator.

The application of “Bolam principle” became like a litmus test that was used in almost every issue pertaining to medical litigation, sometimes including ethical issue as well. Legal authors have perceived the Bolam test as undue reliance on the field of medicines and regarded the test as insufficient on the interests of the patients. The invocation of Bolam was enough to defeat claims that might otherwise be contested in the Court. Ideally, it is the responsibility of the Court to use their discretionary power and decide whether the case lacks in reasonableness and exercise of standard of care. The Bolam test gave the medicinal practitioners too many powers thus negating the role of Courts to decide important legal issue in question.

Bolitho v. City of Hackney Health Authority – Legal Defence:

The case of Bolitho was related to clinical negligence and the House of Lords decided the case. The issue in this case was whether non-intervention by a doctor led to injury of the plaintiff or not. The facts of the case was that Bolitho a two year old child, suffered from brain injury due to cardiac attack as an outcome of respiratory breakdown. The senior paediatric did not attend the child as she thought that therapeutic help would have not made the condition of the child better in any case. Liability of the doctor was denied because even if she had attended the child, it would not have made the condition of the child any better. A group of medicinal experts expressed a similar view that the doctor could not have done anything to make the condition of the child better.

It was a debated fact in this case whether or not the Bolam test can be applied in this case. The court had to consider few important questions in this case and they were as follows: firstly, the act of ignorance of the doctor can be termed as breach of duty or not. Secondly, medical intervention could have prevented the injuries from taking place or not. The Court of Appeal felt compelled to rely on the decision of the expert to answer the first issue in question. To answer the second issue in question the Court felt that as a man of reasonable prudence she exercised her duty of care by relying on the responsible body of medical experts. However, Farquaharson held that the Bolam test is not applicable in this case and it should not be used to justify the actions that are related to the risk of the patient. The issue was appealed to the House of Lords and the appeal was rejected on the grounds that in determining the Bolam test, the defendant should have used his standard of care that is expected out of a man of ordinary prudence belonging to the field of medicine. The mere survival of the practice is not in itself enough to determine the question of breach. The Court has to take help of the group of medical experts to decide such an issue in question; however, this does not mean that the Court has to completely rely on their view. The issue pertaining to reasonableness should be left in the hands of the Courts to decide rather than in the hands of expert opinion. In the opinion of Lord Wilkinson, two caveats of Bolam test emerged, firstly, the use of reasonableness in any profession relied on careful consideration of benefits and risks of a given course of action and secondly the logic that is used to establish it.

The manner in which the judgement of Bolitho is likely to influence the principle of Bolam is that there is likelihood that the Court can take a more interventionist approach in appraising the doctrine of standard of care. In a more practical way, the first stage of the court would be to decide whether the decision had support of peer professionals or not. The decision must be reasoned with logical analysis. Until the first stage, one might see the reflection of Bolam case. From the second stage, the applicability of the Bolitho case might be replaced with the Bolam test wherein the assessment of the risk analysis based on the validity of accepting the treatment is based on. While assessing such an analysis, the Court may take into consideration a number of factors, together with the extent of risk, treatments, interventions seriousness of the results and the ease with which the risk can be avoided.

Application of Bolitho:

In determining the “standard of care”, the Court has shown a defined direction in principle that is laid in the case of Bolitho. In “Penny v. East Kent Health[28]”, three women developed cervical cancer, though cyto screeners had earlier told that their cervical smears are reported as negative. In relying on the reports provided by the experts for the plaintiff, the Judge held that he did not consider the proof or the report as rational analysis based on the following:

The reported abnormalities that were put under observance of the cyto screener could not have completely negated the identification of a potentially disastrous element leading to pre cancer. Rather the report could have marked them as borderline.

The decision was upheld by the Court of Appeal and in the opinion of Lord Woolf, when an issue in question is relating to an understanding of medical evidence then it is not a mandate for the Judge to rely on the evidence that is provided by an illustrious source. The Court may take into consideration demonstrated objectivity and partisanship. This means that an expert advice shall be taken into consideration only when there is a requirement of a reasoned rebuttal. By conducting a comparative analysis, the Court will be able to understand and differentiate between standard of care and logical analysis.

In the case of “Marriot v. West Midlands Health Authority”, the Court of Appeal took the “risk analysis approach” in establishing the lawful criterion in question. In this case, the plaintiff suffered injuries on his head and was taken to a nearby hospital for investigation and the next day he was discharged. However, at home his condition worsened. His GP failed to take into consideration the gravity of his condition that ultimately led to “residual paralysis.” The experts of the defendant disputed that the verdict to depart the claimant at home could be supported because the risk of lesion was very minute. The Trial Judge held that though the risk was minute, the costs of remaining negligent towards a patient could indeed be very disastrous and in such circumstances, the hospital should readmit the patient and take the child into consideration and observation.

The Judge added saying that readmission of the patient is more easy as it shall make investigations to his injured health more easy. The Court of Appeal upheld this decision as there was use of appropriate judicial reasoning in determining the issue of standard of care and applying the Bolitho approach.

In the case of “Pearce v. United Bristol Healthcare”, the issue in question was whether a doctor must have informed pregnant women at 42 weeks of development of the risk that was associated with the birth of the child. The risk associated with the birth was chances of “stillbirth” that seemed inherent.  The Court of Appeal opined that it is the duty of the doctor to inform to the concerned person about any inherent risk associated with the present medical condition of the patient. Information to the patient does not only include information, but also includes consent of the patient as well.

Thus, it may be concluded that peer approval is not enough to please the “standard in law.” Additionally, it also places the “right to self-determination” of the patient as primary and it has the likelihood that the “Human Rights Act 1998” shall need the judges to pay more concentration to the rights of the plaintiffs.

Conclusively, it may be stated that the “standard of care” in law expected from the doctors is based on the rule as laid in the “Bolam case.” However, the ruling of Bolitho suggested a legal move at the uppermost level to transfer the balance from dependence on medical proof supporting the claimant doctor, to a more investigative approach. To reach a conclusion on determining the rationality of medical conduct, the Court will adjudicate on the standard of care in each issue. The empowerment of patient is the most recent theme in health services. This shall act as a conjunctive force in shifting from traditional practice to a more expected practice. The Court has the authority to examine a case very intensely and demand for the exercise of standard of care. There are fewer chances that the Bolam test services survives in its basic kind and there is a need for the medical practitioners to realize that it is high time to bid farewell the Bolam case and take into consideration the modern advances of Bolitho.

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