Hence, a perusal of the philosophy of paternalism adjacent to the concept of patient autonomy is pertinent here in establishing a far-reaching framework within medical negligence problems. In accordance with the General Medical Council (GMC), doctors are required to provide the correct standard of care to all of their patients. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people . 2010 Jun;71(6):331-4. doi: 10.12968/hmed.2010.71.6.48444. See the government website for guidance on raising a complaint against the NHS. This is where you need to show that your injuries were caused directly by the breach of duty and nothing else. The Court saw no reason why this approach should be maintained. Notably in this relationship it is the patient that seeks the expertise of the clinician, who in his capacity possesses the unique competency to attack and encroach the patients body. When putting forward a claim for medical negligence, youre entitled to claim compensation for your physical and emotional suffering. We are committed to the principle of knowledge sharing, ensuring that you and your clients always have access to the latest and best insights. The judge ruled that medical negligence should be decided based on expert medical evidence from a panel of medical professionals in the same field. Theyll then provide a medical report that details the extent of the harm youve suffered, which will be used to help value your claim. Functional Testing Using Selenium: Several schools of thought recognised that the treatment caused severe muscular spasms and consequently administered muscle relaxants. Despite this, we expect you may have questions after youve finished reading this guide. Although there has been a surprising lack of reported cases dealing with the test of breach of duty in 'pure diagnosis' cases, the three cases of Penney, Muller and Brady make clear that the Bolam test applies. You may be wondering how much compensation you could claim in damages for the harm you have suffered. The unconvincing effects of this ruling simply connote that if medical judgment is provided, and as long as the actions of the doctor were in accordance with an accepted practice, negligence has not occurred. It considers the treatment provided (not the outcome) and is sufficiently flexible to take account of the fact that medical treatment is rarely black and white. Hence, it seemed that Donaldson MRs declaration at the Court of Appeal stage that the law will not allow the medical profession to play God[47], would be ignored once again and the Bolam test would be perpetuated. This paper will seek to examine the ubiquitous jurisdiction of Bolam whilst a meticulous attempt will be made to analyse subsequent case law in an effort to ascertain the tendency of judicial decree. Holding on too much to precedent even where it will lead to injustice is likely to infringe on one's fundamental human rights. 2. Moreover, Lord Bridge acknowledged this observation by envisaging of situations where the confession of a risk may be patently necessary to the rumination of an informed choice; ergo no reasonably prudent medical man would fail to make it[48]. This risk manifested during labour and complications during the delivery resulted in her baby being born with severe disabilities. The Human Rights Act 1998 gave individuals in the UK recognised autonomy over their own bodies. I Had An Accident At Work, What Are My Rights? This outlook propagandises communitarianism[31]and enhances the prospects of Stirrat and Gills charge that the doctor patient relation should be perceived as a covenant[32]. Bolam had not been warned of the potential risks of the procedure. Therefore, it is integral to this moot that the case is contextualised to its roots in the early 1950s, bearing in mind the social attitudes of the time towards paternalism and autonomy. The Court criticised the analysis of the majority judgment in Sidaway to the extent that it endorsed the use of the Bolam test in relation a doctor advising of risks involved in a proposed treatment. One such fine argument rests in the fact that the test fails to draw a line between 'what is done' and 'what ought to be done'. Yet the case law encircling the pastures of repudiating medical treatment continues to uphold the principle of self determination. Finally the recent House of Lords decision in Bolitho v City and Hackney Health Authority is examined and the implications this may have on the Bolam test. Prima facie, the Bolitho judgment implies that patient interests are not being neglected as it was affirmed that medical specialists cannot be free to adjudicate on their own matters. Nottingham Sandiford NA, Mahendra M, Wickramarachchi L, Back D, Bansal M. Cureus. Promoting the best interests of a patient is a notion held most dearly by the medical profession, yet some may argue that this acclamation can in some situations undermine the wishes of a patient. Other fields face a more stringent analysis by judges in an effort to guarantee that expert testimony is reasonable under the circumstances. Bethesda, MD 20894, Web Policies The Bolam test which demonstrates that a medical practitioner is incapable of negligence if his actions are certified as suitable by a responsible body of medical opinion[3]enhances this impression. Then, it will discuss the advantages and disadvantages of the test using relevant cases. Medical negligence practitioners therefore need to take care to ensure that they apply the correct test when considering the issue of breach of duty. Moreover, the Bolam test implies a high threshold for potential claimants, thus thwarting superfluous claims and to some extent relieving the ill equipped NHS of any unnecessary anxieties. She had diabetes and a small body frame and was due to give birth to a large baby. The Bolam test, ever since its inception, has invited a deluge of criticisms about its applicability and probable misuse. It has already been applied to solicitors and investment professionals. Likewise, there existed conflicting medical practice about alerting patients to this risk, some doctors believing that a prompt may prevent the patient from accepting this helpful therapy. In Rogers v Whitaker, the Australian courts rejected the notion that a doctor could not be found negligent in warning a patient so long as the doctor acted within the purview of common practice. In this guide, well explore the Bolam test case thats often used in medical negligence claims today. In considering whether the Defendant was negligent in the manner in which it carried out the treatment, McNair J confirmed that: the true test of establishing negligence in diagnosis or treatment on the part of a doctor was whether he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art (p.587). The Bolam test and subsequent legal development While Donoghue v Stevenson9 plays a decisive role in general negligence cases, Bolam v Friern Hospital Management Committee10 is equally authoritative in professional negligence claims. Judges sense the burdens and stresses entangled in this demanding discipline and seemingly append excessive significance on these issues. Medical negligence is where a healthcare provider has administered a level of care that is below the standard expected of the profession. Nonetheless, subsequent case law has fashioned a notoriously submissive attitude within the judiciary. Bolam test. Furthermore, it can be beneficial if youre concerned about the legal costs often associated with legal representation. This rumination is characteristic of a protectionist partiality towards specialists in the medical terrain where allegedly patient rights are readily discarded. Alternatively, continue reading for more information. Legal Expert is a trading name of JF Law Limited, a law firm authorised and regulated by the Solicitors Regulation Authority (SRA) under the number 619586. Generating the most equitable outcome is much more difficult in both practice and theory. Therefore, this asymmetry necessitates for frontier demarcation which is mooted in law and ethics. Medical negligence: who sets the standard? To determine the reasonable standard of care, reference would be made to national guidelines, such as those published by professional bodies and NICE, academic textbooks and employers' policies and protocols. The Bolam case concerned a depressed patient who was voluntarily undergoing electro convulsive therapy at a mental health institution. Claims[2]that structured medicine has been reduced to a grotesque priesthood interested in salvation and resulting in a law unto itself are extreme but, there is nevertheless a need for accountability and judicial scrutiny. Of course, in medical scenes where the patient is mentally incapable of adopting a best interest decision befitting the situation, paternalism can suddenly appear alluring. She apparently belonged to a school of thought which would not have resorted to the only procedure-itself Special damages might include the following: However, you will need evidence in support of your claim for special damages such as: If you arent able to provide evidence of the costs you have incurred, you may find it difficult to claim back the full amount of the special damages youre owed. The table below looks at some of the different injuries you could have suffered due to medical negligence and how much you could claim for them. Looking for a flexible role? It may also mean that you incur costs that you would not have done if you hadnt been injured or made ill. For this reason, youre entitled to claim compensation for these additional costs incurred. An argument was made for informed consent but was rejected on the basis that the Bolam test should always be appliedwhen considering whether a doctor was negligent. The evidence you provide wont necessarily prove that negligence occurred. The Claimant was diabetic and was having a larger than usual baby with an increased risk of shoulder dystocia. The .gov means its official. The extent of your injuries will be considered, including how severe they are and how badly they have impacted your quality of life. That's because, as well as breach of duty, you must prove causation. . Distinguishing Between Employees Workers and Self Employed. Further, it cannot be said that the doctor was negligent in his duty to the patient simple because there is a body of opinion taking a contrary view[36]. Brazier characterises the paternalism trend as becoming an archaic ideology and indicative of a primitive mindset, commenting specifically on the fundamental disparities between the notions of paternalism and beneficence[27]. As Breier-Mackie reports, to claim that patients have autonomy is to argue that they have the capacity and right to decide for themselves the values and rules that will govern their existence[12]. The depth of experience in our Clinical Negligence Team allows us to meet all levels of requirement. Informed Consent in Patients Undergoing Primary Hip and Knee Arthroplasty: What Do Patients Want to Know? In Bolam, the Claimant sustained fractures of the acetabula during a course of electro-convulsive therapy administered to him at the Defendants mental hospital. It is apparent that public confidence is the key to advances in Medicine, but this must be attributed to the successful dispatching of a practitioners duties. We will explore how this case brought about the Bolam test, which is a tool used to help to determine medical negligence. Abstract. The issue of breach of duty in these cases is resolved by a straightforward question of fact as to whether the practitioner acted in the manner alleged. Functional test automation uses a computer to run test cases, which saves time, effort and increases overall testing capacity and accuracy. Fill in your details below for a free callback, Please Select..Accident at WorkCar Accident ClaimsMedical Negligence ClaimsSlip Trip ClaimsWhiplash ClaimsCriminal InjurySexual AbuseFlight CompensationStress or BullyingOther, Please Select..Today: 8.am-9amToday: 9.am-10amToday: 11.am-12.amToday: 12.am-1.pmToday: 1.pm-2.pmToday: 2.pm-3.pmToday: 3.pm-4.pmToday: 4.pm-5.pmToday: 5.pm-6.pmToday: 6.pm-7.pmToday: 7.pm-8.pmTomorrow: 8.am-9amTomorrow: 9.am-10amTomorrow: 11.am-12.amTomorrow: 12.am-1.pmTomorrow: 1.pm-2.pmTomorrow: 2.pm-3.pmTomorrow: 3.pm-4.pmTomorrow: 4.pm-5.pmTomorrow: 5.pm-6.pmTomorrow: 6.pm-7.pmTomorrow: 7.pm-8.pm, Get Free Advice On Personal Injury Claims 24/7. The consequences for the Bolam principle were spelt out by Lady Hale at paragraph 115: "once the argument departs from purely medical considerations and involves value judgments of this sort, it becomes clear that the Bolam test, of conduct supported by a responsible body of medical opinion, becomes quite inapposite. Judicial reticence is far from desirable but the Bolam test considerably alleviates the burden of dispatching a rather novice evaluation of contrasting medical opinions. There are many cases where there is no real dispute that the alleged conduct of a medical practitioner, if proved, would constitute negligence. Federal government websites often end in .gov or .mil. Furthermore the consultants failed to wait for the results of sputum tests and proceeded to carry out an operation. Innovative treatment may be tested without undue trepidation, benefitting both practitioners and patients. Bolam test, in the field of medical science as well as medical law, plays a pivotal role in deciding the gravity of negligence from the part of a doctor who himself represents to be an expert in his area of operation, but due to some certain circumstances, committed an act involving medical negligence. There are some instances where a doctor could cause you additional harm while adhering to the standards of their profession. If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! The test is not confined to the field of medical negligence. If you believe you may have something, then waiting for the results of your blood test can generate a great amount of anxiety. Ropewalk Chambers Kerr J expressed regret that he was constrained by the law to view the exercise of preferring one expert over another through the prism of the exception to Bolam laid down in Bolitho v City and Hackney Health Authority[1998] AC 232 namely, whether the view of the body of opinion relied upon isuntenable in logic or otherwise flawed in some manner rendering its conclusion indefensible and impermissible ([79]). FOIA First, we disaggregate the diagnostic process into three different acts: forming the diagnosis, communicating it to the patient, and . This led to her making a claim on the grounds that, had the doctor told her the risks, she wouldnt have consented to the surgery. One of the main drawbacks of the Bolam test is that it gives legal sanction to a self-regulatory system that operates for the benefit of clinicians in that it is the medical profession themselves and not the courts that decide the yardstick by which reasonable practice is measured. In these circumstances, the Bolam test would apply. Find out if you can claim compensation Call, Chat with an advisor through the live chat box below, An advisor can contact you at your chosen time; just fill out the, Making their patients care their first concern, Being competent and keeping their professional knowledge and skills up to date, Taking prompt action if the safety of their patient is compromised, Being open, honest and acting with integrity, Being open and honest with patients when something goes wrong with the treatment, Apologising to the patient or person advocating for the patient, Offering an appropriate solution to correct things, Fully explaining the short and long term effects of the situation, What will happen if they opt to have the treatment, It can be difficult to explain all the risks to patients in a way they will understand, A patient may not understand the extent of their condition or treatment suggested to them, Medication e.g. He was not given any muscle relaxant, and his body was not restrained during the procedure. It could be argued that this part of the test does not really afford a distinctive bias towards the medical profession than it would to any other line of work. Well provide you with example figures for different injuries from the Judicial College Guidelines (JCG), a document often used to help value claims alongside other evidence. doi: 10.7759/cureus.8457. For instance, you may go to the hospital with a badly crushed and broken arm. As it was, Kerr J felt bound by the law as it currently stands and thus he considered that his approach to the case had to be by reference to a possible invocation of the Bolitho exception (which unsurprisingly was invoked). If this is something you want to discuss further, our team can assess your claim to see whether its valid. In my experience it is routinely applied to all types of a clinical scenario. However, your solicitor will make you aware of this before you agree to submit your claim on this basis. For example, in FB v Princess Alexandra Hospital NHS Trust[2017] EWCA Civ 334, there was no dispute that there was a duty on a Senior House Officer ("SHO") to take an adequate history in relation to the Claimant when she was taken into A&E by her parents. PDF. Dworkin continues, envisaging autonomy as the capability to ruminate desires as what makes an individualis his life plan and in pursuit of autonomy a person truly gives meaning to his life[17]. Moreover, an abundance of recent academic opinion chronicling the debate surrounding this contentious area shall be investigated to verify the claim that Bolam is not the unstoppable juggernaut[6]it once resembled. See the General Medical Council for more information on their involvement in doctors duty of care. The author is of the view that the Bolam Test should be sparingly applied especially in situations where it will lead to injustice under the guise of judicial precedent. Nonetheless, closer scrutiny paints an inherently dissimilar picture; special treatment and protection afforded to the medical profession permeates this sphere owing much to the reluctance of the courts to challenge medical judgment. This yearning to develop into a transcendental entity, he argued, has resulted in a destruction of our capacity for health and transformed people into consumers. Bookshelf For more information on how your claim may be calculated, get in touch with our team using the number at the top of the page. Specifically the influential House of Lords decision in Bolitho[5]will be analysed to determine whether the early optimism was faithful to the verdict or merely subject to a fallacious and premature veneration. Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. 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