The Drummond Miller Court of Session litigation team recently attended the Ampersand Summer Clinical Negligence Conference, where James Badenoch, Q.C. questioned whether or not the test for medical negligence as set out in the English case of Bolam (Bolam v Friern Hospital Management Committee  2 All ER 118) is still relevant.
In 1954, John Bolam voluntarily underwent unmodified electroconvulsive therapy to treat depression. He was not warned of the 1 in 10,000 risk of fracture beforehand. At that time, there were two bodies of competent medical opinion: one which advocated the use of muscle relaxant or manual restraint to help prevent fractures, while the other did not support such measures besides support of the lower jaw. During the treatment, Mr. Bolam suffered severe fractures of his pelvis and dislocation of his hip joints. He subsequently raised a medical negligence claim.
When directing the jury, McNair J. stated the following:
"A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art… Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view".
On the face of it, this statement seems reasonable. Would it be fair to expect the medical profession to digress from the accepted practice of a responsible body of opinion simply because there was a body of opinion with a contrary view? However, it has been argued that the Bolam test fails to draw a distinction between what is done, and what ought to be done. Some feel the effect of Bolam is to prevent the judiciary from competently scrutinising medical testimony and opinion. This body of opinion feels that the test fails to attach appropriate weight to the patient's interests, instead giving far more importance to the role of the doctor.
The subsequent case of Bolitho (Bolitho v. City and Hackney Health Authority  4 All ER 771) recognised a need for judicial scrutiny. In this case, Lord Browne-Wilkinson felt that the use of words like 'reasonable' and 'responsible', in the Bolam test suggested that the court must be satisfied that the there is a logical basis to the opinion relied upon. This approach allows judges to choose between two different bodies of opinion if they feel that one of them is not 'logically defensible'. However, his Lordship in Bolitho highlighted that expert evidence will rarely be considered unreasonable.
The Bolitho approach was explored further in the case of Marriott v West Midlands RHA ( Lloyd's Rep. Med. 23). In this case, Mr. Marriott was admitted to hospital having fallen and been unconscious for some 20 minutes or so. He was discharged from hospital the following day but continued to suffer headaches and a lack of appetite. The GP was called but he failed to appreciate the severity of the symptoms and simply prescribed painkillers. Mr. Marriott's condition deteriorated and he was left hemiplegic. During the court proceedings, it became apparent that there were two conflicting bodies of opinion and it was a matter for the courts to decide whether the medical opinion was 'logically defensible'. The trial judge felt that, due to the severity of the possible repercussions if things went wrong, the fact that there was only a minimal risk of intracranial lesion was irrelevant. He felt that the only 'reasonably prudent course' would have been to readmit Mr. Marriott for further testing and supervision. The judge found in favour of the claimant and this decision was upheld at appeal.
Despite this decision, subsequent case law has shown a reluctance on the part of judges to hold that a view genuinely held by a competent medical expert is unreasonable (see Wisniewski v Central Manchester HA  P.I.Q.R. P324).
It is unclear whether pursuers have enjoyed more success in medical negligence claims following Bolitho, although it does seem that it has taken us some way towards better balancing the rights of the patient with the need to safeguard the respected and important discipline of medicine. What remains clear is that it is certainly not straightforward to establish that a doctor, who has the backing of an expert witness, was, in fact, negligent.