Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, breach, actual cause, proximate cause, and damages.
Alderson B defined negligence as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Therefore medical negligence relates to failure or deviation from the accepted medical duty of care that is required of any reasonable competent medical professional to use while treating a patient under similar circumstances.
The tort of negligence can be traced back to 1932, to the House of Lords decision in the celebrated case of Donoghue v Stevenson. Lord Atkin in this case articulated a test which is the duty to take care when relating with people who are so likely to be affected by the defendant’s acts or omissions and breach of which duty gives rise to liability in negligence. With respect to medical negligence, the duty to take care is at the level of following standard practice and what a reasonable ordinary medical professional would have done and failure to do so may impute professional negligence.
A party wishing to succeed in a claim for negligence on the part of the medical expert has to prove that the medical expert owed him or her a duty of care, that that duty was breached by the defendant and that the claimant has incurred some loss or injury as a result of such breach. Thus in Benard Mulengani v AG & 2 Ors court held that to establish of a health worker, it must be shown that there was deviation from the normal practice, that the health worker did not adopt the practice and that the course adopted by the health worker is one that no professional of ordinary skill would have taken.
In order to establish that there has been breach of the duty of care, courts look at the standard of care expected of a medical expert and thus if he falls below the standard of care appropriate to him, that doctor will be found liable in negligence. In medical negligence however, the standard of care expected of a medical doctor is over and above that expected of an ordinary reasonable man in the street. This new principle was given credence by McNair J in Bolam v Friem Hospital Management Committee when he stated that a person who sets himself out as possessing some professional skill acquires a standard of care expected of, not an ordinary man in the street, but an ordinary professional possessing such skill. A medical doctor and other health professionals will therefore be judged by comparison with other people who possess the same skill because they exercise a specialist skill.
The test for establishing the standard of care required by medical personnel was enunciated in the case of Bolam v Friem Hospital Management Committee (supra) and it came to be known as the “Bolam test”. McNair J in this case stated that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art even though there is there is body of opinion that takes a different view. This means 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 v West Midlands RHA where he equated a reasonable or responsible body with a distinguished or respectable body of medical opinion and in the latter case of Sidaway v Bethlem Royal Hospital, he summarized the Bolam test by saying that ”the law imposes a duty of care but the standard of care is a matter of medical judgment.”
The assertion made by the above cases is that since there are and always will be differences of opinion and practice within the medical profession, the role of the court is to listen to the expert evidence of other doctors and to determine on the basis of that evidence whether or not the practice conformed to that acceptable by a responsible body of medical opinion. One opinion exclusive of all others is seldom the solution to a problem that requires professional judgement. A court may prefer one body of medical opinion to another, but that does not amount to a conclusion of clinical negligence. 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.
In this way it is up to medical profession set its own standard of care without external oversight because matters of mechanical medical knowledge and judgment fall within the expertise of the medical profession and not the judiciary. When asked to come up to the standard of demanded by law, Lord Scott stated that ordinary judge does not have sufficient knowledge of surgical operations to draw an inference of negligence by a medical expert.
However, the Bolam test has been criticized and therefore the courts in cases of medical negligence have shifted from the position where they only rely on the evidence presented by the medical experts and are now questioning medical conduct by applying the law such as reasonable foreseeability, proximity and notions for fair, just and reasonable. This way the courts look at and examine the reasoning behind clinical decisions and non-disclosure of risks to the patients and where they find the doctor negligent, the evidence of the medical professional is disregarded.
The shift from the Bolam test was first seen in the case of Loveday v Renton where the court held that the mere expression of opinion or belief by a witness, however eminent that the vaccine can or cannot cause brain damage does not suffice. The court has to evaluate the witness and the soundness of his opinion which involves the examination of the reasons for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness’ opinion by examining the internal consistency of his evidence. In the same year, Pill J in Knight v Home Office stated that the conduct of a doctor is to be determined by the Bolam standard and in that way he was adopting the test stated in the Bolam case, however, he added that the court should examine the reasons given by the doctor for their decisions and see if they stand up to analysis.
In these cases, there was change in the application of the Bolam test in that the standard of care expected from medical personnel is not left solely in the hands of the medical profession and therefore requires the courts to weigh the risks that may befall a patient. If courts rely only on the evidence given by the medical experts without analyzing it, the doctors will be setting their own standard which is subjective in way that it is measured according to what other professionals brought to court as expert witnesses say it is. Therefore, the decision of whether there is negligence or not is left in the hands of the doctors which question is supposed to be determined by the courts.
In the case of Bolitho v City and Hackney Health Authority the Bolam test was construed so as to make it clear that conformity with accepted practice was not itself conclusive and thus it is necessary for the judge to consider expert evidence on the defendant’s practice and decide whether that clinical practice puts the patient unnecessarily at risk. According to the House of Lords in this case, it is for the court in each individual case to determine what the standard of care appropriate to the medical professional against whom the negligence is alleged and for the medical expert opinion. Lord Browne-Wilkinson stated that “if in a rare case it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible…the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.” Therefore the judge needs to weigh the risks against the benefits.
The Principle enunciated in Bolitho which is known as the “new Bolam” has been recently applied in different cases such as Penney, Palmer and Canon v East Kent Health Authority where Lord Wolf held that in resolving conflicts of expert evidence, the judge remains the judge, he is not obliged to accept evidence simply because it comes from an illustrious source, he can take account of demonstrated partisanship and lack of objectivity.
Also, in the recent case of Montgomery v Lanarkshire Health Board, although the Supreme Court overruled the decision in Bolitho and Sidaway as regards disclosure of risks because they no longer reflect modern attitudes to patient centered treatment and fail to give due respect to the ability of patients to understand the treatment options and resulted in an unacceptable medical paternalism, it (Supreme Court) held that in pleading a case of lack of consent, it is not a matter for expert opinion from doctors of the medical profession. It is for the courts and the law to determine, not doctors. Thus, if there is a failure to obtain consent, that is a matter of fact for the trier of fact and not for expert evidence.
In conclusion, although the Bolam test is still applied in that evidence of medical experts is necessary when deciding a case, it is necessary for the courts to analyze that evidence to see if it is up to standard of that accepted by a responsible body of opinion. This is because the medical expertise does not entail ethical expertise which is required in weighing the risks and benefits. Thus, some judicial oversight is required to ensure that doctors do not abuse their position by intent, inadvertence or indolence and this draws me to the conclusion that the standard of care is not a matter of medical judgement as courts have to scrutinize and evaluate medical reasoning.
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