Medical Negligence

Medical treatment is clearly a "skilled activity", and the principles above apply in this area. A doctor is expected to come up to the standards of the reasonable doctor practising the skill in question - the reasonable GP, or the reasonable obstetrician, or the reasonable brain surgeon, or whatever. The defendant's actual qualifications and experience are irrelevant. But if there are a substantial number of experienced and responsible doctors (in that speciality) who approve the defendant's action, it does not matter than there may be others - even perhaps a majority - who do not.

Hatcher v Black (1954) Times 2/7/54, Denning J

A woman P suffered side effects from an operation on her throat, and sued the surgeon concerned. Denning J said that on the road or in a factory there ought not to be any accidents if everyone used proper care, but in a hospital there was always a risk. It would be disastrous to the community if a doctor examining a patient or operating at the table, instead of getting on with his work, were forever looking over his shoulder to see if someone was coming up with a dagger. The jury should not find the defendant negligent simply because one of the risks inherent in an operation actually took place, or because in a matter of opinion he made an error of judgement. They should find him liable only if he had fallen short of the standard of reasonable medical care, so that he was deserving of censure. (The jury found in favour of the defendant.)

Bolam v Friern Hospital [1957] 2 All ER 118, McNair J

A mentally ill patient P was given electroconvulsive therapy (ECT), during which he suffered a fractured pelvis and other injuries. The risk of such injuries could have been reduced had P been given certain relaxing drugs before the treatment: the medical profession was divided as to whether such drugs should be given. The judge said the test would be the standard of the ordinary skilled man exercising and professing to have the particular medical skill, but a doctor who acts in accordance with a practice approved by a responsible body of medical opinion is not negligent merely because there is a body of contrary opinion.

Whitehouse v Jordan [1981] 1 All ER 267, HL

P had a difficult labour. The registrar D tried to deliver the child per vaginam using forceps, and pulled several times without success. After 25 minutes he abandoned this method and delivered the child by Caesarian section; it was subsequently found to be brain-damaged, apparently due to the trial by forceps. The trial judge found D had been negligent in his treatment, but the Court of Appeal and a majority of the House of Lords disagreed. To say a doctor has committed an error of clinical judgement does not in itself indicate whether or not he has been negligent; some errors of judgement may be consistent with the due exercise of professional skill, while other acts or omissions in the course of exercising clinical judgement may be so glaringly below the proper standards as to make a finding of negligence inevitable. The test was whether the defendant had fallen short, in judgement or otherwise, of the standards to be expected of an ordinary skilled surgeon.

Maynard v West Midlands HA [1985] 1 All ER 635, HL

Consultants were unsure whether P was suffering from tuberculosis or Hodgkin's disease, and carried out an exploratory operation without waiting for the results of other tests. P's vocal cords were damaged (the risk of this being inherent in the operation) and P sued unsuccessfully for damages. Approving the Bolam test, Lord Scarman said there would inevitably be differences of opinion within the medical profession. It was not enough to show there was a body of medical opinion which considered that a doctor had acted wrongly, if there was another equally competent body of opinion which supported his action.

Sidaway v Bethlem Royal Hospital [1985] 1 All ER 643, HL

P agreed to have an operation on her spine, but Dr F did not warn her of a risk (about 1%) of paralysis resulting from the operation, which it was conceded had been competently performed. P claimed F's failure to warn her was itself a breach of duty, but the House of Lords disagreed. Lord Scarman felt the American rule of "informed consent" should apply, and that there should generally be full disclosure unless "therapeutic privilege" could be invoked, but the majority said the Bolam/Maynard test should apply to vindicate any course supported by a substantial body of responsible medical opinion, subject to a duty to answer any direct questions truthfully and fully. Given the low level of risk, a substantial body of negro-surgical opinion was for non-disclosure, and that was sufficient.

Defreitas v O'Brien (1995) Times 16/2/95, CA

A woman P suffered side-effects from an unorthodox medical procedure, and sued the surgeons responsible. Upholding the trial judge's finding in favour of DD, the Court of Appeal said the "responsible body of medical opinion" need not be particularly large. It was open to the judge to find as a fact that a small number of specialists supporting DD's course of treatment constituted a responsible body of medical opinion, and he had done so in this case.

Newell v Goldenberg (1995) 6 Med LR 371, Mantell J

C's wife became pregnant after C's vasectomy reversed itself naturally, an event which occurs once in about 2000 cases, and C sued the surgeon D for his failure to warn of this risk. D said in evidence that he did normally give such a warning but by an oversight had not done so on this occasion; however, since many surgeons did not warn of this risk, he had inadvertently been following the practice of a substantial body of responsible medical opinion. The judge found in C's favour and awarded damages of £500. The Bolam test may provide a defence for those who lag behind the times, he said, but cannot serve those who know better; in any event, doctors who (in 1985) gave no warning were not acting responsibly.

Bolitho v City & Hackney Health Authority [1997] 4 All ER 771, HL

A two-year-old boy P suffered serious brain damage following a respiratory failure, and his parents alleged medical negligence. The doctor's treatment decisions were supported by several expert witnesses, and on that basis the judge found that the doctor had not been negligent; P's appeals failed. Lord Browne-Wilkinson said obiter that a judge is not bound to find that a doctor is not negligent merely because there is a body of medical opinion in his favour: he must also be able to show that this opinion has a logical basis. But only very rarely would a judge decide that the opinions of a number of otherwise competent doctors were not reasonably held, and this was not such a case.

Shakoor v Situ [2000] 4 All ER 181, Livesey QC

A man C suffering from a skin complaint sought treatment from D, who was qualified as a practitioner of traditional Chinese herbal medicine but not as an ordinary doctor. D prescribed a certain herbal remedy, but C suffered an unpredictable idiosyncratic reaction and died. C's widow sued for damages but failed. D was to be measured against the standard of a reasonable TCHM practitioner, and although there had been some letters in the medical press casting doubt on the safety of this particular remedy, that concern had not been voiced so widely that he should have known of it.

The Bolam test is applied in appropriate cases other than medical negligence.

Hyde v Williams (2000) Times 4/8/00, CA

Allowing an appeal by architects DD, Sedley LJ said that where a profession is divided as to proper professional standards, some members regarding as acceptable a lower standard than others would accept, it is the lowest acceptable standard that must be taken as the benchmark of professional negligence.

Adams v Rhymney Valley DC (2000) Times 11/8/00, CA

CC and their family lived in a council house; the windows had key-operated security locks, and the keys were on a hook in the kitchen. A fire broke out while the wife C2 and the three young children were upstairs. They were unable to use the stairs or to open the windows; C2 eventually smashed a window to escape, but was badly injured in so doing, and the children died. Dismissing CC's claim for negligence, the Court of Appeal (2-1) said the Bolam test applied. Although DD themselves had not actually considered the possible dangers in the event of fire, they could not be negligent when they had in fact followed a course supported by a substantial body of professional opinion.

Bradford-Smart v West Sussex CC (2002) Times 29/1/02, CA

A girl claimed compensation for psychiatric injuries caused by bullying on the estate where she lived and on the bus to and from school. The Court of Appeal agreed, affirming the decision of the trial judge, said a school might on occasions be in breach of duty by failing to take such steps as were within its power to combat harmful behaviour of one pupil towards another even when they were outside school, but such occasions would be few and far between. It was clear that a responsible body of professional opinion would agree that the school had done enough: it could not be a breach of duty to fail to take steps which were unlikely to do much good.