Inadequacies of the Bolam Bolitho standard First, a key criticism of the Bolam-Bolitho standard is the decaying notion of medical paternalism it seeks to perpetuate. Duri… If past medical decisions could be rendered 'logical' by future developments, why would the reverse not also be so? During the relevant period, the patient underwent two CT scans on 2 August 2013 and 18 September 2013. This led to a fall in her blood pressure, a hypoxic episode, and ultimately to Mr Jones suffering from periventricular leukomalacia (a brain injury affecting premature infants). , when he attempted to objectively quantify the expected and required standard of care. In Bolitho v City and Hackney Health Authority, 1997, Lord Browne-Wilkinson restricted the boundaries of Bolam, stating Had this been diagnosed, the ensuing deterioration and treatment in February 2014 would have been avoided. Authorised and regulated by the Solicitors Regulation Authority. However, whether it is viewed as a single Bolam/Bolitho test, a single but two-stage Bolam and then Bolitho test or two totally separate Bolam and Bolitho tests is really rather academic: the key take-home message is that, to be held non-negligent, a particular medical or surgical practice must be a … The Bolam-Bolitho test, applied to medical advice, would allow a doctor to withhold information so long as some of his peers would have acted similarly. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. Two such methods are the Bolam and Bolitho tests. The Bolam Test is a means of assessing clinical negligence in Court. The Bolitho Test, which resulted from the 1996 court case of Bolitho v City and Hackney HA, is an amendment to the Bolam Test, one of the most important rulings with regard to medical negligence.. The application of Bolam and Bolitho has come under criticism before in the matter of Muller v Kings College Hospital NHS Foundation Trust [2017]. The Bolam test was first recognised in the case of Bolam vs Friern Hospital Management Committee. The court determined that it had to try the issue of the prescription of Nifedipine as a tocolytic drug by the standards of the time, and not by subsequent developments. In 1957, The Bolam Test had stipulated that no doctor can be found guilty of negligence if they are deemed to have acted “in accordance with a responsible body of medical opinion.” effect of the ruling in the Bolitho case upon that perceived imbalance. I liked John-Paul Swoboda’s description of this process as “the deep ossification of the Bolam test in the common law” in his excellent recent article on Bolam … But a more realistic question is this: is a doctor negligent by the standards of the day entitled to be lucky? Is your business prepared for climate change? Neo HY(1). The claimant’s case was that following the first and second CT scans, the omental mass seen on imaging should have been biopsied which would have confirmed a diagnosis of actinomycosis. The Bolam test. But the Bolam test is the test for medical negligence and has been routinely rolled out for all types of case for decades. Firstly, the facts of the Bolam case will be outlined, and the importance of the precedent it established will be examined through an analysis of subsequent clinical negligence case law. In Bolitho v City and Hackney Health Authority, 1997, Lord Browne-Wilkinson restricted the boundaries of Bolam, stating Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam. Although further jurisprudential Bolam challenge is likely in the wake of the Montgomeryruling, there are grounds for re-examining Bolitho, … In 1998, the judgment in Bolitho v City and Hackney HA introduced the caveat that a defendant producing evidence of a respectable minority opinion would not avoid liability unless the opinion was of a sound and logical basis: “In cases involving, as they so often do, the weighing of risks against benefits, 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.”. Accordingly there was no breach of duty. In delivering his judgment in Brady, Andrew Lewis QC (sitting as Deputy Judge of the High Court) reviewed whether the current applicable law is suitable for application in all clinical negligence claims; namely, distinguishing between those cases of advice, treatment or both versus those cases purely addressing the issue of diagnosis. The reporting radiologist advised that its appearance was in keeping with omental infarction rather than malignancy. Whilst a layman may conclude that the doctors acted negligently, a Court is unable to ignore evidence from a professional that is capable of standing up to rational analysis. Mr Lewis QC, in dismissing the claim, found that although, on the balance of probabilities, an early biopsy in 2013 would have revealed infection and thus allowed the claimant the opportunity to avoid her subsequent catastrophic illness in February 2014, the criticisms of the defendant had not been proven. What if they are not following a recognised practice, but time and advancements in treatment prove them right? These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust [2019] Med LR 384. There was a concern that the symptoms were suggestive of pre-term labour. A doctor is not guilty of negligence if he or she has acted in accordance with a practice accepted as proper and responsible by a responsible body of medical practitioners skilled in t… Mr Jones argued that the obstetrician was negligent on the basis of the test in Bolitho v City and Hackney Health Authority [1998] AC 232, refined in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. It would also introduce a test of culpable fault much harder for defendants to meet than that represented by the Bolam test (even when modified by Bolitho (24)). The application of the Bolam test to cases of medical negligence has been the subject of prolonged criticism. » News & publications» Latest news» Clinical negligence claims: the application of Bolam and Bolitho in ‘treatment’ and ‘pure diagnosis’ cases. Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority. Bolitho v City and Hackney Health Authority [1998] AC 232. That is to say that if there is a group which is of the opinion that the practice is wrong, it does not automatically mean … These cases are distinguished from ‘pure diagnosis’ cases such as radiology or histopathology where there is limited scope for any genuine difference of opinion, as a diagnosis based on a scan or histology slide is either right or wrong. The origin of the Bolam Test was from the ruling by McNair J, in the seminal case of Bolam v Friern H.C.C [1] . Although he did not consider it necessary to decide the point, Mr Justice Stewart commented that the question remains: if a doctor would not be in breach of duty for prescribing a drug in 2002 because of changes of medical opinion, then should a doctor prescribing the same drug in 1995 be found negligent in a trial taking place after 2002? The claimant’s case concerned the delayed diagnosis of actinomycosis; a rare, infectious disease in which bacteria spreads from one part of the body to another through body tissues. In the case of Brady, Mr Lewis considered the classic statements of Bolam and Bolitho and their respective application in ‘treatment cases’ - where a doctor recommends or undertakes a particular treatment or further diagnostic procedure. However, the question of whether the two reporting radiologists had been negligent or not must be determined in accordance with Penney and Muller applying the test of Bolitho, even where to do so would be in conflict with the court’s finding of fact. 1. [34] Indeed, half a century has passed since the Bolam test was formulated (the Bolitho addendum was introduced later on … The first CT scan reported a mass in the right upper quadrant. Although Mr Justice Stewart left the issue for the consideration of a higher court, we have little doubt that a court would not find that Bolam can be inverted in this way. Upon review, the CT scan performed in September 2013 had demonstrated an abscess of the anterior abdominal wall which was thought to be omental infarction but in hindsight was likely to be deposits of infection. Doctors owe a duty of care to their patient. Kerr J expressed that such matters should be a decision for the court as a matter of fact and not delegated to experts. These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust [2019] Med LR 384. From Bolam-Bolitho to Modified-Montgomery - A Paradigm Shift in the Legal Standard of Determining Medical Negligence in Singapore. The obstetrician made the decision to prescribe Nifedipine, a tocolytic drug, in order to suppress or postpone pre-term labour. In this case, Lord Browne-Wilkinson set out an exception to the Bolam test – the courts may set aside a body of expert medical opinion when it … The law defines this as a duty to provide care that conforms to the standard reasonably expected of a competent doctor. The Bolam Test has formed the backdrop to all clinical negligence cases since 1957, providing a cornerstone for the defence of these claims. Causation in hypothetical scenarios: the interplay between Bolitho, Bolam & Montgomery Rory Badenoch Breach of duty , Causation , Informed consent February 5, 2020 6 Minutes In this post, Christopher Fleming of 12KBW discusses the recent decision in Metcalf v Royal Devon and Exeter NHS Foundatio n Trust [2019] EWHC 3549 (QB). The application of Bolam and Bolitho has come under criticism before in the matter of Muller v Kings College Hospital NHS Foundation Trust. Why Bolitho v City and Hackney Health Authority is important. Kerr J expressed his frustration that cases of ‘pure diagnosis’ had not been in the minds of the judges at the time of Bolitho. The case Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 established that if a doctor acts in accordance with a responsible body of medical opinion, he or she will not be negligent. Ultimately, the court dismissed the claimant’s case. Medical advances have to be well-evidenced before being put into practice, and the court is hardly likely to encourage behaviour to the contrary. There was no doubt that the advancing of differential diagnoses or recommendations of further treatment or investigations should be determined in the face of Bolam and Bolitho. He argued that the tocolytic drug of choice at the material time was Ritodrine, and that Nifedipine should only have been administered as part of a clinical trial. The case of Brady v Southend University Hospital NHS Foundation Trust [2020] EWHC 158 (QB) examines once again the application of the classic Bolam and Bolitho tests in cases involving elements of both ‘pure diagnosis’ and ‘treatment’. West Midlands Regional H.A., Lord Scarman paraphrased the Bolam test as applying “in the realm of diagnosis and treatment” [1984] 1 W.L.R. 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