By Erika Koutroumpa,
Medical negligence is an offense that can have serious consequences for the patient and should be treated accordingly. Most countries have legislation regarding such issues, regardless of whether the legal system is of a common or civil law background. Most countries in the Commonwealth can distinguish the existence of medical malpractice (or any professional negligence for that matter) using the Bolam test, a now controversial tool of the common law armamentarium.
The rule was first established in 1957, with the Bolam v Fiern Hospital Management Committee. In this legal dispute, the appellant, Mr Bolam was a mentally ill individual who visited the hospital to receive treatment for their ailments. The doctor attending failed to mention the possible side effects and complications, did not use muscle relaxants, or restraints, and during the electroconvulsive therapy, the patient suffered from fractures. The question hence was whether the doctor had followed the protocol or not. According to the court, the doctor had managed to follow the protocol at the time, since muscle relaxants were not used, there had been proof that the use of restraints during electroconvulsive therapy can cause more harm to the patient and doctors did not routinely inform the patients of the adverse effects at that time. Hence, the Bolam test is used in determining whether the actions of the medic are in line with the actions of their peers in the same position with the same circumstances. This can vary according to the experience of the doctor.
Medical professionals owe a legal “duty of care” to the patient and are hence expected to treat them with reasonable care and skill. If medical negligence has been established, then the victim may follow either a civil or a criminal suit, depending on the components of the test that have been fulfilled. Therefore, establishing the tort of negligence means that there must be a breach of the duty of care. With all 3 components being established on the balance of probabilities (=more likely than not to have occurred), the claimant may follow a civil suit and be entitled to compensation. On the other hand, to take the criminal suit route, the 3 components need to be satisfied beyond a reasonable doubt. This can even result in a custodial sentence for the doctor and an additional GMC to practice hearing.
The basics of the test as they have been established by the 1957 case verdict are still being used, but as it is natural with all laws, there have been additions to adjust it to modern viewpoints. Thanks to the Montgomery v Lanarkshire Health Board (2015), it has been established that the medic must advise as to the risks. Still, there may be exceptions where the professional may choose to withhold this information from the patient, Additionally, the Bolam case had not clarified if the test could be applied in cases of exclusively misdiagnosis, and if this is considered as a breach of duty of care. In the Muller v King’s College Hospital NHS Trust [2017] case, the courts established that the test is indeed a ‘pure treatment’, not a ‘pure diagnosis’ test, and cannot be applied in such cases.
The Bolam test has received some criticism in more recent years. As has been mentioned before, the criteria are being judged by peers of the medical professional and it must be shown that any one of them would have done the same, giving the same outcome. However, this can be difficult for even the most experienced of professionals to do since it is somewhat of a grey area especially when ethics are involved. Additionally, the test has been criticized as a byproduct of the peak of the NHS, harboring paternalistic sentiments and encouraging “medical nepotism”- defendants were seen as protected by their peers acting as expert witnesses especially since the test is easily invoked based on a single opinion. On the other hand, there have been worries on the other side that the definition of clinical guidelines could be weaponized to act as a means of coercion towards the clinician. Hence, scholars have recommended that a board of experts from different schools of thought be utilized. But for many years other skeptics firmly believed that common practice between doctors was not always the highest standard of care, promoting the bare minimum in clinical practice. This was largely amended by the Bolitho test.
In the case of Bolitho v City and Hackney HA [1999] 4 Med LR 381 the Bolam test was amended to include of the requirement for the body of expert witnesses to be reasonable, responsible, and for their position to withstand a logical analysis of risks and benefits. This was an attempt to correct the misinterpretation of the previously established precedent, ensuring better trial outcomes with higher priority being placed on the plaintiff’s rights and demands for fairer evaluation.
Hence, most medical malpractice cases are evaluated via the Bolam test, a tool that has been objecting to criticism. Just like with most legislation, amendments have been made to clarify its use and ensure fair judgment of cases both for the plaintiff and the defendant. To avoid claims of medical malpractice, doctors are advised to follow thorough record-keeping and adhere to established practice guidelines. Ensuring that all steps have been followed is important, as most medical negligence cases take years to be resolved.
References
- “What is the Bolam Test?”- Waldrons Solicitors webpage. Available here
- Teacher, Law. (November 2013). Bolam v Friern Hospital Management Committee. Available here
- Clinical Negligence Cases: When the Bolam Test Does Not Apply, Cassandra Williams, 20 April 2021, Ropewalk Chambers. Available here
- “Bolam is dead. Long Live Bolam!”, Simon Fox KC, 9 July 2019, UK Health care Law Blog, Serjeants’ Inn. Available here
- Epstein N. E. (2018). Legal and evidenced-based definitions of standard of care: Implications for code of ethics of professional medical societies. Surgical Neurology International, 9, 255. Available here
