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.
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