English Medical Law – Breach of Duty and The Bolam Test
After establishing duty of care, the next step is to prove the breach of the duty of care on the balance of probabilities. In another word, the care of the doctor fell short of the standard expected.
Bolam v Friern Hospital Management is the case which lead to the introduction of Bolam test.
In this case, electroconvulsive therapy was administered to Mr Bolam as a treatment for his depression. No muscle relaxant was given to him and who was not retained during the procedure.
Before the treatment was prescribed, he was not informed about the risk of small fracture or the risk of convulsive.
He later suffered from a fractured hip that led to serious complications.
Mr Bolam failed to prove that the defendants had been negligent. This was because there was a division in the opinion regarding the need and benefits of physical restraint and muscle relaxant during ECT and the need to inform the patients about the risk.
McNair J, in his direction to the jury stated that in situation which involve the use of some special skill or competence, the standard expected was not that of the ordinary reasonable man but was that expected of the ordinary skilled man who professes to have, exercise that special skill.
In general it means that when the care is delivered by the doctor, the standard of care expected is that of the reasonable doctor.
McNair J also mentioned that ‘a man is not negligent if he is acting in accordance with such practice, merely because there is a body of opinion that takes the contrary view’. Therefore, even a body of opinion did not agree with a doctor’s actions in a particular circumstance, if another body of opinion did conform could also be found, the doctor would not negligent.
Examples where the Bolam test is used were Whitehouse v Jordan and Maynard v West Midlands RHA.
In Whitehouse v Jordan , an infant suffered severe brain injury due to protracted failed forceps delivery. The Bolam test was used and the it was concluded that there was an error of clinical judgement rather than negligence.
The case of Maynard v West Midlands RHA, focused on the dispute about a diagnostic procedure.
The claimant had symptoms which could be due to Hodgkin’s disease or tuberculosis. She later underwent a procedure to test for Hodgkin disease which carried an inherent risk of damage to the vocal cords It was later revealed that he suffered from tuberculosis.
Claimant brought an action against the defendants due to the likelihood of her symptoms being Hodgkin’s lymphoma was so small which did not justify the risk of diagnostic procedure. Lord Scarman stated that the preference of one body of professional opinion to another was insufficient to establish negligence. Bolam test was endorsed.
Criticism of Bolam test
In general Bolam test is considered as insurmountable hurdle for claimants. This is because of the standard that is set by the medical profession rather than the court.
There is an uncertainty with regard to the body of medical opinion that support or against the defendant’s action. Bolam never mention on the number of professionals that would need to agree that the cause of action of defendant was acceptable.
The issue was later raised in the case of De Freitas v O’Brien where only small minority of neurosurgeons would endorse the conduct of the defendant. De Freitas was considered as Bolam compliant and Otton LJ mentioned that the size of body of medical opinion was not that important than the fact that there was a responsible body. A minority support is enough for the defendant to be defensible.
Bolam test may depend on experts’ medical opinion rather than the more objective evidence of best practice.
Institution such as National Institution for Health Care and Excellence have developed evidence based guideline which is more objective with much clarity. The objective evidence of clinical guidelines may inform the expected standard of care in negligence cases as in Richard v Swansea NHS Trust.
Despite the present of the guidelines, this does not mean that a doctor who deviates from them would be negligent if something went wrong
McNair J decision indicated that if a body of professional opinion can be found to support the doctor’s action, than the standard of care will not be breached. Some consider that the Bolam test is too deferential to the medical profession.
However, the case of Hucks v Cole provided otherwise. In this case, the court rejected the evidence provided by four expert witnesses for the defendant. The doctor was found to be negligent for failing to prescribe penicillin to a pregnant woman.
Bolam test was considered to be too wide in term of application. Question is raised whether it is considered in may information disclosure case.
The case of Montgomery v Lanarkshire indicated that the test should be patient centered.
Information disclosure should be fact specific and dependent upon what a reasonable patient in that position would regard as material risk or what the doctor should know as material risk.
English Medical Law – Good Samaritan Situations
In emergency, a doctor is not legally obliged to assist the victim unless it is stipulated in the employment contract / GP contract. This may include condition where the injured party is a patient on the doctor’s list.
The GP contract also stated that emergency action only can be offered to the person who is not on the GP’s list but live in the area of practice when the person own doctor is not available to promote treatment.
Despite the absence of legal obligation by the doctors, doctors also have moral and ethical duties. The professional regulator ( General Medical Council) may impose disciplinary percussion
on doctors who fail to treat the victims in emergency setting.
In order to provide a clear picture on issue of aid in emergency setting and any issues that may lead to litigation ,the Social Action Responsibility and Heroism Act 2015 are enacted. The factors that need to be taken into consideration in emergency setting include whether the rescuer acted for the benefit of society, whether the rescuer demonstrated a responsible approach and whether the rescuer acted in an emergency.
English Medical Law – Fair, Just and Reasonable as Part of the Caparo Test in Establishing Duty of Care.
English Medical Law – Fair, Just and Reasonable as Part of the Caparo Test in Establishing Duty of Care.
The issue whether it would be fair, just and reasonable to establish a duty of care can be observed based on these cases.
These include Palmer v Tees Health Authority, or Alcock v Chief Constable of South Yorkshire, and White v Chief Constable of South Yorkshire as well as Goodwill v BPAS.
In Palmer v Tees Health Authority, the issue is whether the Health Authority owed a duty of care to the victim’s mother who suffered from nervous shock due to the death of her daughter at the hands of mentally disordered patient. Besides that, another issue is whether the Health Authority owed any duty to the society as the they were aware of the patient’s violent nature on discharge from the hospital.
It was held by the Court of Appeal that although it was foreseeable for the patient to harm someone, it could not have foreseen that a particular member of society would have been harmed.
It was not fair, just and reasonable to impose a duty of care on the Health Authority.
The importance of proximate relationship was emphasized in the case.
However in the case of Alcock v Chief Constable of South Yorkshire and White v Chief Constable of South Yorkshire, a duty of care may arise between a doctor and third party if the third party suffers later post traumatic stress disorder after witnessing negligent medical are.
In order for this action to be fulfilled, there should be a close relationship between the primary and secondary victims, the secondary victim must have been close to the incident in time and space,the secondary victim must have directly witnessed the incident or its aftermath with his or her unaided senses and the secondary victim must have suffered from a recognizable psychiatric illness due to the event.
Goodwill v BPAS was the case, where the doctor might has a duty of care towards the married patient’s spouse while giving contraceptive advice to a patient. This is because, the doctor could have reasonably be expected to have the spouse in mind at the time the advice was given.
As a conclusion the duty of care is unlikely to be found outside the doctor patient relationship except in the cases of Alcock, White or Goodwill.
English Medical Law - The Element of Proximity of Relationship in Duty of Care
In general it is agreed that proximity of relationship between the doctor and patient being treated existed.
The case of Fairlie v Perth and Kinross Healthcare NHS Trust  is a case which emphasizes on the proximity of the relationship between a doctor and his patient.
In this case, the father of the patient was distressed severely after an accusation of him being abusive towards his daughter which turn out to be false.The court held that there is was no factual basis to indicate the proximate relationship existed between the father and the psychiatrist. Therefore, there was no duty of care.
Proximity of relationship focuses on the relationship between the defendant and the claimant. From the proximity / closeness of the relationship a duty of care will arise.
It will focus on the fact that either the doctor’s act omission, carelessness and negligence could reasonably have expected to cause harm to the patient.
An example of a friend of the patient who suffer from allergic reaction after taking medication from the patient who being treated by a doctor will not make the doctor liable for clinical negligence because there is no proximate relationship between the patient’s friend and the doctor. This will not give rise to duty of care.
The element of Foreseeability in Duty of Care
One of the elements of Caparo test was it reasonably foreseeable that the damage would be caused by the defendant to the claimant?
In clinical setting is whether the doctor’s action or omission was reasonably foreseeable to cause injury / harm to the patient.
An example includes the doctor prescribing specific treatment to the patient and the medication given was later taken by the relative of the patient. The relative suffered anaphylactic shock and died. There is no duty of care would be owed by the doctor to the relative as the main task of the doctor is to treat his own patient with due care and full attention.
Another example is a patient who suffered from depression after being treated due to cold flu . A doctor action was not reasonably foreseeable to cause the depression which was later discovered due to the patient feeling scared of sitting for the next coming exam.
The defendant owed the claimant a duty of care
In general, there are three essential elements that need to be proved to establish the duty of care of the defendant. These elements derived from the case of Caparo Industries Plc v Dickman and include:
-was it reasonably foreseeable that the damage would be caused by the defendant to the claimant?
-was the relationship between the defendant and claimant reasonably proximate?
-was it fair, just and reasonable to impose duty of care on the defendant?
Caparo test in clinical negligence situations are only are used in novel or unusual circumstance to ascertain the duty of care.
In a private setting, duty of care arises based on the contractual relationship between doctor and patient.
In a general practice setting, duty of care arises when the general practitioners have accepted patients on the lists.
In hospital setting, duty of care arises when the patients are admitted to the NHS hospital.
Medical negligence is based on the legal consequences when a doctor or other health professionals negligently harms a patient.
It is a complex claim which is brought as a civil action in tort of negligence. In order to bring a successful medical negligence case, three requirements need to be proved which are
-the defendant owed the claimant a duty of care
-the defendant’s performance was below the standard expected which resulted in a breach of duty
-the claimant’s injury was caused by the defendant’s breach of duty.
Who is the claimant?
In a medical negligence case, a plaintiff is the aggrieved patient or a person who claims on the patient’s behalf.
Who is the defendant?
The defendant is a doctor or the employer of the doctor such as NHS trust.
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