Bolam Test

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In the English law of tort, the Bolam test is one of the rules used to determine the issue of professional negligence where the defendant has represented him or herself as having more than average skills and abilities. In essence this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion.

Explanation

The test is derived from Bolam v Friern Hospital Management Committee [1957] 1 WLR 583. The usual rules to establish negligence rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. The Bolam test determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise. For general purposes, the objective standard of care cannot come down, but it can be raised where the individual defendant has expressly or implicitly represented skills and abilities in excess of the ordinary person. The test does not vary significantly in professional negligence litigation, but it causes greater difficulty for the courts in medical negligence than in claims against, say, a lawyer or an accountant, because of the technical issues involved. The problem is as follows:
  • The award of damages in the civil law is intended to compensate the claimant for the loss and damage caused by the relevant defendant.
  • A person seeks the assistance of a medical practitioner because of an inherent condition which may be physical, psychological, or contain elements of both, e.g. a person may be admitted to hospital with traumatic compression injuries resulting from an industrial or road traffic accident, and exhibit symptoms of shock.
  • At this point, the patient may already have a cause of action against an employer for failing to properly fence the machine that caused the injuries, or against the driver of a vehicle. If so, that potential defendant will be liable to pay damages for all the injuries caused and the consequential losses.
  • But suppose that the claimant receives negligent treatment in the hospital. In theory, a second cause of action arises against the medical practitioners and their employers (see vicarious liability). But the issue of causation is problematic. The court must be able to distinguish between any loss and damage flowing from the two causes.
  • Damages for the first cause must be valued by assessing what hypothetically perfect treatment would have achieved. This may be a complete recovery at some time in the future, or residual permanent disability represented by a percentage loss of movement in joints, etc.
  • In the second action, the court must find that the negligent treatment actually caused a different outcome which is measurably more severe than the first hypothetical outcome. Thus, if the only consequence to the negligent treatment was delay in the recovery time and the outcome ultimately delivered matches the hypothetical perfect outcome, the measure of damages will be limited to the additional pain and suffering, and additional loss of earnings.
  • Now substitute a heart attack for the accident. The patient is not entitled to any compensation for injuries arising naturally, but only for those injuries directly attributable to the negligent treatment. The post mortem shows that the patient was going to die no matter what the medical practitioner did but, in this instance, the negligence probably accelerated the inevitable death.
All these legal issues can only be addressed by medical opinion because, by its nature, medical practice has not reached the stage of scientific reliability where such questions can be answered with certainty. In a dispute about a will, for example, it might be alleged that because a solicitor delayed implementing a change to an existing bequest, an intended beneficiary was denied the expected outcome when the testator unexpectedly died. Here, efficient action by the solicitor changes the will and matches everyone's expectations. The difference between a quantified bequest and no bequest is easy to measure. But it has been difficult for the law to achieve any real degree of consistency in the medical field because assessing whether the standard of care has been met and issues of causation depend to such a marked degree on the opinions of the medical profession itself.

For these purposes, the evidence produced by the claimant must satisfy the burden of proof which, in a civil case, is the balance of probabilities. Hence, the burden is satisfied and negligence is proved if there is greater than 50% chance that the claim as argued is correct, i.e. the duty was owed and the breach caused the injury. So the question of law is based on assessing the medical chances of recovery. If, given proper treatment, the claimant's chances of avoiding the current level of injury were anything less than 50%, he or she will not be awarded any damages at all. There is no right to damages for the loss of the prospect of recovery if the chance of that recovery was less than probable.

The principles

The law distinguishes between liability flowing from acts and omissions, and liability flowing from misstatements. The Bolam principle addresses the first element and may be formulated as a rule that a doctor, nurse or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice. In addition, Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. (1964) AC 465 created the rule of "reasonable reliance" by the claimant on the professional judgment of the defendant.
"Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise."
Because of the nature of the relationship between a medical practitioner and a patient, it is reasonable for the patient to rely on the advice given by the practitioner. Thus, Bolam applies to all the acts and omissions constituting diagnosis and consequential treatment, and Hedley Byrne applies to all advisory activities involving the communication of diagnosis and prognosis, giving of advice on both therapeutic and non-therapeutic options for treatment, and disclosure of relevant information to obtain informed consent.

A sample of cases

  • Barnett v Chelsea & Kensington Hospital (1968) 1 AER 1068. Three men attended at the emergency department but the casualty officer, who was himself unwell, did not see them, advising that they should go home and call their own doctors. One of the men died some hours later. The post mortem showed arsenical poisoning which was a rare cause of death. Even if the deceased had been examined and admitted for treatment, there was little or no chance that the only effective antidote would have been administered to him in time. Although the hospital had been negligent in failing to examine the men, there was no proof that that the deceased's death was caused by that negligence.
  • Whitehouse v Jordan (1981) 1 AER 267: The claimant was a baby who suffered severe brain damage after a difficult birth. The defendant, a senior hospital registrar, was supervising delivery in a high-risk pregnancy. After the mother had been in labour for 22 hours, the defendant used forceps to assist the delivery. The Lords found that the doctor's standard of care did not fall below that of a reasonable doctor in the circumstances and so the baby was awarded no compensation.
  • Sidaway v Bethlem Royal Hospital Governors (1985) AC 871: The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation. Rejecting her claim for damages, the court held held that consent did not require an elaborate explanation of remote side effects. In dissent, Lord Scarman said that the Bolam principle should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.
  • Maynard v West Midlands Regional Health Authority (1985) 1 AER 635. The patient presented with symptoms of tuberculosis but both the consultant physician and the consultant surgeon took the view that Hodgkin's disease, carcinoma, and sarcoidosis were also possibilities, the first of which if present would have required remedial steps to be taken in its early stages. Instead of waiting for the results of the sputum tests, the consultants carried out a mediastinoscopy to get a biopsy. The inherent risk of damage was to the left laryngeal recurrent nerve, even if the operation was properly done. In the event, only tuberculosis was confirmed. Unfortunately, the risk became a reality and the patient suffered a paralysis of the left vocal chord. The decision of the physician and the surgeon to proceed was said by their expert peers to be reasonable in all the circumstances.
  • Hotson v East Berkshire Area Health Authority (1987) 2 All ER 909. The extent of the hip injuries to a 13 year-old boy was not diagnosed for five days. By the age of 20 years, there was deformity of the hip joint, restricted mobility and permanent disability. The judge found that even if the diagnosis had made correctly, there was still a 75% risk of the plaintiff's disability developing, but that the medical staff's breach of duty had turned that risk into an inevitability, thereby denying the plaintiff a 25% chance of a good recovery. Damages included an amount of £11,500 representing 25% of the full value of the damages awardable for the plaintiff's disability. On appeal to the Lords, the question was whether the cause of the injury was the fall or the health authority's negligence in delaying treatment, since if the fall had caused the injury the negligence of the authority was irrelevant in regard to the plaintiff's disability. Because the judge had held that on the balance of probabilities, even correct diagnosis and treatment would not have prevented the disability from occurring, it followed that the plaintiff had failed on the issue of causation. It was therefore irrelevant to consider the question of damages.
  • Wilsher v Essex Area Health Authority (1988) AC 1074 The defendant hospital, initially acting through an inexperienced junior doctor, negligently administered excessive oxygen during the post-natal care of a premature child who subsequently became blind. Excessive oxygen was, according to the medical evidence, one of five possible factors that could have lead to blindness and, therefore, the Lords found that it was impossible to say that it had caused, or materially contributed, to the injury and the claim was dismissed. In a minority view, Mustill LJ. argued that if it is established that conduct of a certain kind materially adds to the risk of injury, if the defendant engages in such conduct in breach of a common law duty, and if the injury is the kind to which the conduct related, then the defendant is taken to have caused the injury even though the existence and extent of the contribution made by the breach cannot be ascertained.
  • Bolitho v City and Hackney Health Authority (1997) 4 AER 771: A two-year old boy suffered brain damage as a result of the bronchial air passages becoming blocked leading to cardiac arrest. It was agreed that the only course of action to prevent the damage was to have the boy intubated. The doctor who negligently failed to attend to the boy said that she would not have intubated had she attended. There was evidence from one expert witness that he would not have intubated whereas five other experts said that they would have done so. The House of Lords held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession. This view is consistent with:-
  • Albrighton v RPA Hospital (1980) 2 NSWLR 542 where a patient in Royal Prince Alfred Hospital who had been born with a spinal problem had her spinal cord totally severed leaving her a paraplegic. Mr Justice Reynolds found that a major issue was the relationship between the hospital and the doctors, that the hospital was not liable nor vicariously liable but that the doctors who performed the operation were negligent. He also said, "The more recent approach is to replace the law, not legal practitioners, as the means of defining negligence", a policy in law later more strongly confirmed in:-
  • F v R(1983) 33 SASR 189 Where Chief Justice King said, "In many cases an approved professional practice as to disclosure will be decisive. But professions may adopt unreasonable practices. Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interests or convenience of members of the profession. The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by the law. A practice as to disclosure approved and adopted by a profession or section of it may be in many cases the determining consideration as to what is reasonable. On the facts of a particular case the answer to the question whether the defendant’s conduct conformed to approved professional practice may decide the issue of negligence, and the test has been posed in such terms in a number of cases. The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community."

Misfeasance

Where it can be shown that the decision-maker was not merely negligent, but acted with "malice", the tort of "misfeasance in public office" may give rise to a remedy. An example might be a prison doctor refusing to treat a prisoner because he or she had previously been difficult or abusive. Although proof of spite or ill-will may make a decision-maker's act unlawful, actual malice in the sense of an act intended to do harm to a particular individual, is not necessary. It will be enough that the decision-maker knew that he or she was acting unlawfully and that this would cause injury to some person, or was recklessly indifferent to that result.
  • Palmer v Tees Health Authority (1998) AER 180; (1999) Lloyd’s Medical Reports 151 (CA) A psychiatric out-patient, who was known to be dangerous, murdered a four year old child. The claim was that the defendant had failed to diagnose that there was a real, substantial, and foreseeable risk of the patient committing serious sexual offences against children and that, as a result, it had failed to provide any adequate treatment for him to reduce the risk of him committing such offences and/or to prevent him from being released from the hospital while he was at risk of committing such offences. But the court struck out the claim on the grounds that there was no duty of care towards the child, as any child, at any time, was in the same danger. Furthermore, as the patient did not suffer from a treatable mental illness, there was no legal right to either treat or detain the person.
  • Akenzua v Secretary of State for the Home Department (2002) EWCA Civ 1470, (2003) 1 WLR 741 where a dangerous criminal due to be deported, was released by the police/immigration services to act as an informant and killed a member of the public. The Lords held that if a public officer knows that his or her acts and omissions will probably injure a person or class of persons, the public body (or the state) will be liable for the consequences. In this case, it was arguable that there had been an illegal use of the power to permit the deportee to remain at liberty and that the officials exercising that power must have known that it was illegal. Given the criminal's record, the officials must at least have been reckless as to the consequences. For these purposes, it was not necessary to prove foresight that a particular individual might be at risk: it was enough that it was foreseeable that the criminal would harm somebody. Palmer was distinguishable because the relevant officials had the power to detain and deport the dangerous person.

Conclusions

Overall the question of professional negligence is problematic because, to a certain degree, each profession sets its own standards and may to that extent be considered "self-regulating". The arguments are complex. The difficulty for the law is to strike a balance between the interests of the professionals and those who rely on them. There is a form of legal pendulum that can swing either way depending on the policy issues involved but this is sometimes of little comfort to those who feel that they have not found justice in the legal system. In cases such as Whitehouse v Jordan the court holds that the doctor was not at fault because he did what other doctors might have done in the same circumstances. Thus, the claimant was brain damaged and that damage was caused by what the doctor did, but the doctor was not legally at fault. In one sense, this may be considered fair to the doctor who did exactly what many other doctors would have done. But the baby's brain damage is just as bad no matter what the cause of it, and it seems unfair that the difference between obtaining damage and being denied any remedy should depend on the court's application of negligence. Many use this type of case to argue in favour of a system of no-fault compensation such as that introduced in New Zealand in 1972. The question of no-fault compensation in the UK was considered by the Royal Commission on Civil Liability and Compensation for Personal Injury (the Pearson Commission), which reported in 1978. Although the Report was critical of the existing system, its terms of reference prevented it from recommending a comprehensive no-fault scheme. Instead it recommended an extension of the existing social security scheme to give greater assistance to victims of industrial injuries and to include the victims of road accidents. The possible extension of misfeasance in public office to include situations in which potentially dangerous individuals are released into the community complicates the duties of the professions involved. Given that medical professionals are already held out as having more reliable diagnostic and treatment skills, any obvious indifference as to whether those released will cause problems may expose the professionals to a new source of liability (see Mason and Laurie: 2003).

References

  • Brazier, M. (2003). Medicine, Patients and the Law. Third Edition, Harmondsworth: Penguin Books.
  • Jones, M. (2003). Medical Negligence. Third Edition London: Sweet & Maxwell.
  • Kennedy, I & Grubb, A. (2000). Medical Law. Third Edition. London: Butterworths.
  • Mason, J. K. & Laurie, G. T. (2003). "Misfeasance in Public Office: An Emerging Medical Law Tort?" 11 Medical Law Review 194.
  • Mason, J. K. & Laurie, G. T. (2005). Mason and McCall-Smith's 'Law and Medical Ethics. Seventh Edition. Oxford: Oxford University Press.
  • Robertson, Gerald B. (1981). "Whitehouse v Jordan: Medical Negligence Retried". 44 Modern Law Review 457-461.

Full judgment

For the full Judgment from the House of Lords go to [1]
English Tort law
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