Shifting the Standard of Care in Medical Litigation: From Bolam to Bolitho, Exercises of Law

Download Shifting the Standard of Care in Medical Litigation: From Bolam to Bolitho and more Exercises Law in PDF only on Docsity! ABSTRACT – An essential component of an action in negligence against a doctor is proof that the doctor failed to provide the required standard of care under the circumstances. Traditionally the standard of care in law has been determined according to the Bolam test. This is based on the principle that a doctor does not breach the legal standard of care, and is therefore not negligent, if the practice is supported by a responsible body of similar professionals. The Bolam principle, how- ever, has been perceived as being excessively reliant upon medical testimony supporting the defendant. The judgment given by the House of Lords in the recent case of Bolitho imposes a requirement that the standard proclaimed must be justified on a logical basis and must have consid- ered the risks and benefits of competing options. The effect of Bolitho is that the court will take a more enquiring stance to test the medical evidence offered by both parties in litigation, in order to reach its own conclusions. Recent case law shows how the court has applied the Bolitho approach in determining the standard of care in cases of clin- ical negligence. An understanding of this approach and of the shift from the traditional Bolam test is relevant to all medical practitioners, particularly in a climate that is increasingly litigious. KEY WORDS: Bolam test, Bolitho, clinical negligence, legal standard of care, medical litigation In medical litigation, the central question that arises is whether or not a doctor has attained the standard of care that is required by law. The standard expected is one of ‘reasonable care’. This needs to be judged by taking into account all the circumstances sur- rounding a particular situation, and by balancing the diversity inherent in medical practice against the interests of the patient. In determining the standard, the court uses the Bolam test.1 This article explores the limits of the Bolam test, and examines the recent shift in the way the legal stan- dard should be determined in medical litigation. The implications of this are relevant to all medical practi- tioners, particularly in a climate that is increasingly litigious. Bolam – the traditional view In 1954, John Hector Bolam underwent electro- convulsive therapy (ECT) for clinical depression. At that time, medical opinion differed on how best to minimise the risk of injuries possible from con- vulsions induced by ECT. In Mr Bolam’s case, the technique of manual restraint was ineffective and as a result he fractured his pelvis. He subsequently argued that the doctor had been in breach of the standard of care in providing treatment, and that the hospital had been negligent. The locus classicus of the test for the standard of care in law, required of a doctor, developed from this landmark case. Mr Justice McNair, in his direction to the jury, said: [a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art …Putting it the other way round, a man is not negli- gent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. It follows that if a medical practice is supported by a responsible body of peers, then the Bolam test is satisfied and the practitioner has met the required standard of care in law. This test has been applied on numerous occasions in cases of medical litigation. A strong endorsement of this test was provided in the House of Lords by Lord Scarman in the case of Maynard.2 His Lordship stated: I have to say that a judge’s ‘preference’ for one body of dis- tinguished professional opinion to another also profession- ally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed and honestly held, were not preferred. …For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another.2 The reason for his Lordship taking such a view is that there are, and always will be, differences of opinion and practice within the medical profession. One answer exclusive of all others is seldom the solution to a problem that requires professional n PROFESSIONAL ISSUES Clinical Medicine Vol 3 No 5 September/October 2003 443 Ash Samanta MD FRCP LLB, Consultant Rheumatologist, Lead Clinician for Clinical Governance, Musculoskeletal Directorate, Leicester Royal Infirmary Jo Samanta BA(Hons), Solicitor, Lecturer in Law, De Montfort University, Leicester Clin Med 2003;3:443–6 Legal standard of care: a shift from the traditional Bolam test Ash Samanta and Jo Samanta judgement. A court may prefer one body of medical opinion to another, but that does not amount to a conclusion of clinical negligence. In practical terms, the effect of the Bolam test is that a finding of negligence is not made where the defendant doctor has acted in accordance with a responsible body of medical opinion. This test has been repeatedly approved at appellate level and is enshrined in law. Criticisms of the Bolam test The principal criticism of the Bolam test is that it fails to draw a distinction between ‘what is done’ and ‘what ought to be done’. Whether an action is negligent or not should be judged against a standard of what ought to be done.3 Something which is done, even if by most people, could still be negligent if it falls below the standard of what ought to be done. The Bolam test is seen as stating the standard of care as dependent upon what is done, thereby allowing medical practitioners to set for themselves the legal standard by eliciting the support of ‘a responsible body of medical men’. Should this be allowed in medicine when this is clearly not the case in other areas of professional liability, where the expected standard of the defendant is a matter that is set by the court?4 The approval of practice by responsible medical peers may be the only way to set the standard in matters requiring technical knowledge and expertise. The Bolam test has been justifiably applied to cases of medical litigation involving diagnosis2 and treatment.5 However, is this the correct test for information dis- closure to patients, or for all matters pertaining to medical inter- vention in persons unable to give valid consent? These are issues involving ethics and the fundamental rights of individuals. Critics have argued that the court should set the standard in such cases, rather than a body of medical opinion, no matter how responsible or authoritative.6 In Sidaway,7 a case concerning the level of information that should have been disclosed to a patient, the speech of Lord Bridge in the House of Lords is particularly apposite: Whether non disclosure in a particular case should be condemned as a breach of the doctor’s duty of care is an issue to be decided primarily on the basis of expert medical evidence, applying the Bolam test.7 This approach has been criticised as being excessively deferen- tial to medical opinion when balanced against the rights of a patient to be told about the risks and benefits of medical inter- vention.6 This criticism has been vindicated in retrospect. The doctrine of consent has now evolved in favour of warning the patient of all material risks inherent in the proposed treatment.8 In modern medical practice, obtaining consent requires not only giving a patient information, but also ensuring that the patient gives consent with understanding.9 The Bolam principle has also been applied to the ethical issues inherent in medical interventions performed on mentally incapacitated patients unable to give valid consent. In Re F, the question that arose was whether sterilisation should be per- formed in a 36-year-old patient who had a mental age of five.10 A body of medical opinion supported this as being in the ‘best interests’ of the patient. In an ethical matter such as this, should it not be the court that decides what is in the patient’s best interests? However, in Re F, the decision was left to medical professionals: [A] doctor can lawfully operate on, or give other treatment to, adult patients who are incapable, for one reason or another, of con- senting…provided that the operation or other treatment concerned is in the best interests of such patients.10 The Bolam test would appear to have crossed the boundaries of diagnosis and treatment, as well as the limits of medicine, thereby enlarging the role of the doctor to that of a moral arbiter.6 The ubiquitous application of the Bolam principle has made this the litmus test for the standard of care in every issue surrounding medical litigation, including ethical issues. Some legal academics perceive this as an undue reliance on medical testimony and an insufficient focus on the interests of the patient. The mere invocation of Bolam could be enough to defeat claims sufficiently contestable to reach the courts.11 Should this be the case when clearly the standard of care is a question of reasonableness? Should it not be left to the court to appraise what would be reasonable under the circumstances, and to state the expected standard, thus defining the boundaries of reasonable conduct? It is unlikely that in Bolam the judge meant that compliance with a body of medical practice was conclusive in terms of escaping liability for negligence. In his summing up, he stated: If the result of the evidence is that you are satisfied that his practice is better than the practice spoken of on the other side, then it is really the stronger case.1 This seems to leave open the possibility of the court having a more active role in setting the standard of care by objectively evaluating the practice proffered by each of the parties. Bolitho: the dawn of a new era Bolitho was a clinical negligence case that reached the House of Lords. The central legal issue was whether or not non- intervention by a doctor caused the plaintiff ’s injury. The speech by Lord Browne-Wilkinson, in the leading judgment, has poten- tial implications for the way in which the Bolam test might be interpreted in the future. The facts of the case were that Patrick Bolitho, a two-year-old child, suffered catastrophic brain damage as a result of cardiac arrest due to respiratory failure. The senior paediatric registrar did not attend the child, as she ascribed to a school of thought that medical intervention, under those particular circumstances, would have made no difference to the end result. Liability was denied on the grounds that even if she had attended, she would not have done anything that would have materially affected the outcome. This view was supported by an impressive and respon- sible body of medical opinion. In giving judgment, Lord Browne-Wilkinson said: Ash Samanta and Jo Samanta 444 Clinical Medicine Vol 3 No 5 September/October 2003