Q&A Medical Law

Jonathan Herring

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317568247
• Edition: 3
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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1 Medical Negligence

Checklist

You need to be aware of:

when a doctor owes a patient a duty of care;

how the law decides if a doctor is negligent;

how the courts determine if a doctor’s negligence has caused the patient loss;

what the courts do if the doctor’s negligence only creates a risk of harm;

the method used by a court to assess the amount of money payable to an injured patient;

the arguments over whether it would be better to have a no-fault system for medical negligence cases.

QUESTION 1

Assess the Bolam test.

How to Read this Question

The examiner has gone for a short and to the point question here. Remember to look carefully at the wording of the question. Notice that we are asked to assess the test. So it is not just a question of defining it – candidates are required to discuss and analyse it. Notice too that we are asked to assess the Bolam test and not the whole of the law of medical negligence. So keep focused on the question asked.

How to Answer this Question

The structure of the essay will be straightforward. The Bolam test will be defined. This could take up the whole essay, and given that you are primarily asked to assess the test it is better to keep this discussion brief. Then we will look at some of the criticisms of the test, before looking at some of the alleged advantages. It will then be necessary to consider whether any of the alternatives are preferable. Finally, a conclusion will be drawn.

One general point in essays of this kind is that it is easy to lambast a particular legal rule and point out all its flaws; however, unless you can find a better alternative the objections to it will be weaker. Remember, often in difficult legal issues there are competing principles that need to be balanced. Any legal rule will therefore have its drawbacks and benefits. To make a case that the law needs to be reformed, you need to show that the proposal has greater benefits and/or fewer drawbacks to the current law.

Your answer should address the following:

define the Bolam test;

set out the advantages;

set out the problems with it;

what alternatives are there?

conclusion.

Applying the Law

Up for Debate

One of the big questions around Bolam is the extent to which the Bolitho case has given judges greater power to decide whether a body of medical opinion is unacceptable. In other words, to what extent is it for doctors to decide what an acceptable medical practice is and to what extent is it for judges?

Read R Mulheron, ‘Trumping Bolam: a critical legal analysis of Bolitho’s “gloss”’ (2010) 69 CLJ 609.

ANSWER

In order to prove that there has been a case of medical negligence, the claimant must show that the medical professional breached the duty of care. Normally in the law of tort that involves asking the simple question: did the defendant behave in a reasonable way? However, the law developed slightly differently in the cases of clinical negligence in which the Bolam test is used. In this essay we will set out what the test is and consider the arguments for and against its use.¹

The Bolam test was first set out in Bolam v Friern HMC (1957). There it was held that

A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

That test has been applied to all medical professionals and is not restricted to doctors. Although Bolam was a first instance decision it has been approved on several occasions by the House of Lords, most recently in Bolitho v City and Hackney HA (1997).

The significance of the Bolam test is that it provides a defence for a doctor to show that there was a responsible body of medical opinion that supported his or her conduct. That body of opinion need not be a majority one. So even if most doctors would describe the conduct of the defendant as negligent, if there is a responsible body that would not, then he or she has a defence. This makes it very difficult for the claimant to show there has been negligence because even though they may find experts who state that the conduct is negligent, unless every responsible expert agrees they are unlikely to succeed. In Bolitho v City and Hackney HA the House of Lords emphasised that the body of opinion has to be a responsible one. Therefore finding a rogue doctor who would support the defendant will not provide a defence. Lord Browne-Wilkinson went further by saying that to be responsible, the body of opinion must have a logical basis. These dicta show that the judges will not necessarily simply accept that because an expert says that the defendant’s behaviour was acceptable it cannot be negligent – they will require convincing that such a view is responsible and logical. However, it would be very rare for a judge to declare an expert medical witness either illogical or irresponsible.

Turning now to the objections to the Bolam test: first it is claimed that the test means it is the members of the medical profession, rather than the courts, who decide what is reasonable practice. The point is that the Bolam test means that the standards of negligence for doctors are very different from those in other walks of life. In a driving case, for example, the court will assess whether a driver lived up to the standards of the reasonable driver and it is no defence for the driver to show that many drivers would have driven in the way he or she did. Opponents claim that what the Bolam test ignores is that a responsible body of medical opinion may be misguided or old-fashioned and should then be seen as negligent.

A second objection is that the Bolam test makes it very difficult for a claimant to assess their chances of success. They may instruct experts who give strong evidence that the conduct is negligent, but they will lose if a single convincing witness is found on the other side. A claimant can only be confident of success if she makes sure she knows about every possible opinion on the behaviour of the defendant. That makes clinical negligence litigation unpredictable. A cynic might even suggest that the law is designed to discourage people from bringing claims.

A third objection is that it is becoming difficult for claimants to find expert medical witnesses who would testify against their colleagues. It is one thing to be asked in court to testify that the way a colleague behaved was sub-standard and that they were not behaving as a reasonable doctor. It is another matter to say the way they behaved was below the standard of how any reasonable doctor would have behaved.

These objections will be responded to by supporters of the Bolam test, who tend to make the following points. First, judges are simply not in a position to resolve a dispute between two groups of expert doctors over the best way to treat a particular condition. The judge will know less about medicine than either group of experts. So saying, as the Bolam test does, that there is no negligence if a responsible body of opinion supports the defendant, the law acknowledges this. The law in effect is saying, ‘Well, there are two groups of medical experts who disagree on this and we cannot choose who is right.’ While a judge is normally in a position to readily determine whether or not a driver was acting reasonably, he or she is a pure amateur in relation to medical issues. The strength of this response is weakened by the fact that judges do regularly choose between expert opinions in relation to other areas of life, from computer programming to sheep breeding, even though they are amateurs in such matters. Judges regularly choose which expert on computer programming or farming they agree with.²

This leads to a second, and more convincing, argument in favour of Bolam. That is that the Bolam test acknowledges and encourages innovative and exciting medical practice. It is commendable that doctors are trying out new treatments (as long as they are carried out under the appropriate guidelines). Consider, for example, the work of Wendy Savage, who did much to promote a woman-centred approach to gynaecology. At the time her practices were seen as unorthodox, but now they would be standard. If the Bolam test were different, she would have been open to being sued early in her career, and the advances she promoted might not have been made. This argument might explain why medical treatment is different from other situations. We don’t want drivers trying out unorthodox methods of driving cars, nor bricklayers departing from standard bricklaying practice; but we do want doctors to try out new treatments, as long as they follow the regulations governing medical research.

A third point that supporters might make is that Bolam does discourage litigation but that is preferable because the NHS is already under significant financial strain, without facing the extra costs of litigation.³ Without the Bolam test, litigation would get out of control, threatening the existence of the NHS itself. Of course, that does not necessarily follow. Maybe without the Bolam test doctors would be more careful.

Overall, the arguments seem well balanced. The test certainly makes it difficult to sue. However, it means that patients might receive no compensation for injuries caused by unorthodox medicine because the defendant is able to find a small group of doctors who would support what he or she did. It certainly makes it harder for a claimant to establish a case of negligence. On the other hand, the test provides protection for a doctor who is seeking to depart from the standard approach to a medical problem and trying an innovative technique. It may be that the approach heralded by Bolitho is the way forward, namely to stick with the Bolam test but encourage the courts to be more sceptical about claims that there is a responsible body of medical opinion supporting an approach that clearly appears inappropriate.

So what could replace the Bolam test?⁴ We could use the straightforward test for negligence: did the doctor act in a reasonable way? That will make it difficult for the judge to resolve a case where there are two medical experts who disagree on the correct approach to a particular condition. It is understanda...