bolam and bolitho

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. That would be an unlikely sea change in clinical negligence. It re-examines the landmark House of Lords case of Nadyne Montgomery v Lanarkshire Health Board, having regard for Bolam as modified by Bolitho. These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust [2019] Med LR 384. Bolitho v. City and Hackney Health Authority 4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority [3]. In Bolitho v City and Hackney Health Authority, 1997, Lord Browne-Wilkinson restricted the boundaries of Bolam, stating Neo HY(1). Authorised and regulated by the Solicitors Regulation Authority. 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. It states that if a doctor has acted according to proper and accepted practice, he is not guilty of medical negligence. While the House of Lords in Bolitho could have increased the standard of care expected of medical professionals, and the degree to which the courts could intervene in medical negligence cases, it failed to. In Bolitho v City and Hackney Health Authority, the House of Lords followed and applied the ‘Bolam principle’. 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. The core of the case was whether an obstetrician's prescription of Nifedipine was negligent. This article considers the potentially untapped significance of the Bolitho test, while the Bolam test looks to be facing a challenging twilight. effect of the ruling in the Bolitho case upon that perceived imbalance. In determining the question of whether or not the negligence could be established in Brady, counsel for the claimant and defendant disagreed as to the appropriate standard of care to be applied insofar as it could be considered a ‘pure diagnosis’ case. Although further jurisprudential Bolam challenge is likely in the wake of the Montgomeryruling, there are grounds for re-examining Bolitho, … The Bolam test was first recognised in the case of Bolam vs Friern Hospital Management Committee. It ultimately required surgical drainage and multiple surgical interventions; following which, microbiology evidence confirmed actinomyces. In an obiter comment, Kerr J indicated that in cases of ‘pure diagnosis’ the Bolam principle should be dispensed with, as no ‘Bolam-appropriate’ issue arises as there is no ‘weighing of risks and benefits, only misreporting which may or may not be negligent. The first CT scan reported a mass in the right upper quadrant. 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. 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. Applying such a matrix, remote risks with minor consequences will generally be considered immaterial. That the applicable test in determining the negligent acts of doctors is the BOLAM TEST and BOLITHO TEST, under the English Tort Law which is used in asserting the medical negligence of the Doctor. But the Bolam test is the test for medical negligence and has been routinely rolled out for all types of case for decades. His mother experienced "false alarms" of going into labour during. Can a doctor really be liable for being ahead of their time when treating patients? 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. 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 … Bolam sets out that a doctor is not negligent if they have acted in accordance with a responsible body of opinion. There was a concern that the symptoms were suggestive of pre-term labour. In the Bolitho case the defending doctor was acquitted both at the original trial, in the Court of Appeal, and finally in the House of Lords. There was evidence from highly respected medical journals prior to November 1995 which demonstrated that a responsible body of medical practitioners could have selected either Ritodrine or Nifedipine. 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. The House of Lords clarified the Bolam test to include a proviso that the practice accepted as proper by a responsible body of professionals must be based on logical and defensible grounds. What if they are not following a recognised practice, but time and advancements in treatment prove them right? Home The effect would be to propel medical compliance with—possibly slavish obedience to—clinical guidelines. 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 origin of the Bolam Test was from the ruling by McNair J, in the seminal case of Bolam v Friern H.C.C [1] . 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. 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. 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 Bolam Test is a means of assessing clinical negligence in Court. 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 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’. Kerr J expressed his frustration that cases of ‘pure diagnosis’ had not been in the minds of the judges at the time of Bolitho. 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 … Why Bolitho v City and Hackney Health Authority is important. Mr Lewis, once again bound by the appellate courts, concluded that what was visible on the CT scans was essentially a question of fact for the court to determine on the balance of probabilities, with the assistance of witness and expert evidence. Sign up to receive email updates straight to your inbox. In this case Lord Browne-Wilkinson reminded the court that they are Two such methods are the Bolam and Bolitho tests. © Clyde & Co LLP, Can a doctor really be liable for being ahead of their time when treating patients? 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. 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. Between May 2013 and February 2014 the claimant developed a left-sided psoas abscess containing gas and fluid. Author information: (1)Department of Palliative Medicine, Tan Tock Seng Hospital, Singapore. This conflicts with the patient’s entitlement to make decisions and created the need for a new … 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. Had this been diagnosed, the ensuing deterioration and treatment in February 2014 would have been avoided. Bolitho narrowed the scope of the test, stating that the court must be satisfied that the body of opinion relied upon has a logical basis. , when he attempted to objectively quantify the expected and required standard of care. The experts expressing opposing views on that issue could not both be right’. This presented an interesting inversion of the usual test, as subsequent to the events in question Nifedipine had become a standard drug. 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. On the other hand, potentially disastrous This was recognised in the classic direction of McNair J. to a jury in Bolam vs Friern Hospital Management Committee. The Bolam test. Within his concluding statement, Mr Lewis remarked that while the court determined that a biopsy in 2013 would have confirmed the infection and avoided the claimant's later illness in February 2014, the criticisms of the defendant could not be substantiated by applying the Bolam and Bolitho tests. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. The defendant’s case was that the patient suffered from two rare conditions, omental infarction and actinomycosis, and that the two reporting radiologists had acted reasonably in respect of their conclusions drawn from both the first and second scan. Andrew Lewis QC dismissed the assertion that this was a case of ‘pure diagnosis’ on the basis that it was the claimant’s case that a range of diagnoses were available upon interpretation of each of the CT scans and that the alleged failure was to perform a specific test (a biopsy) to confirm the correct diagnosis. If past medical decisions could be rendered 'logical' by future developments, why would the reverse not also be so? Bolitho v City and Hackney Health Authority [1998] AC 232. In Bolitho v City and Hackney Health Authority, 1997, Lord Browne-Wilkinson restricted the boundaries of Bolam, stating Over time, it can result in linked abscesses, pain and inflammation. The application of Bolam and Bolitho has come under criticism before in the matter of Muller v Kings College Hospital NHS Foundation Trust. Bolitho test A legal test that modified the 1957 Bolam test, which the English courts had been using to determine medical negligence by a doctor or nurse. The case of Penney concluded that when determining what was visible on a diagnostic image (such as a radiograph or pathology slide) the exercise of preferring one expert to another must be viewed through the prism of the Bolitho exception. Bolitho test A legal test that modified the 1957 Bolam test, which the English courts had been using to determine medical negligence by a doctor or nurse. Bolitho narrowed the scope of the test, stating that the court must be satisfied that the body of opinion relied upon has a logical basis. It ultimately required surgical drainage and multiple surgical interventions; following which, microbiology evidence confirmed actinomyces. One of the issues to be determined by the court was whether the first and second CT scans had been reported in a reasonable manner, and whether it was reasonable not to perform a biopsy to confirm a specific diagnosis when several different diagnoses were considered. But a more realistic question is this: is a doctor negligent by the standards of the day entitled to be lucky? Bolam sets out that a doctor is not negligent if they have acted in accordance with a responsible body of opinion. The Bolam Test has formed the backdrop to all clinical negligence cases since 1957, providing a cornerstone for the defence of these claims. 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). Accordingly there was no breach of duty. What if they are not following a recognised practice, but time and advancements in treatment prove them right? 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.”. The classical legal standard of care taught to all budding clinical negligence practitioners is quoted from the judgment of Bolam v Friern HMC [1957] 1 WLR 582: “[The 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… Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”. 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. The expert’s evidence therefore fell within the Bolitho exception (from the case of Bolitho v City and Hackney Health Authority [1996] 4 All ER 771). The main source of discontent was the apparent judicial abdication of the power to determine the standard of care required to avoid negligence liability. The law defines this as a duty to provide care that conforms to the standard reasonably expected of a competent doctor. 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. The Bolitho case was the start of the erosion of medical protectionism enshrined in Bolam as it gave the judiciary far greater discretion when … Ultimately, the court dismissed the claimant’s case. TORT – NEGLIGENCE – STANDARD OF CARE FOR MEDICAL PROFESSIONALS – CAUSATION. In his opinion Lord Browne-Wilkinson accepted the principle that a judge would have to consider whether a body of medical opinion was logical, but decided that the opinion used by the defence in Bolitho was indeed logical. During the relevant period, the patient underwent two CT scans on 2 August 2013 and 18 September 2013. Duri… Kerr J expressed that such matters should be a decision for the court as a matter of fact and not delegated to experts. The reporting radiologist advised that its appearance was in keeping with omental infarction rather than malignancy. » News & publications» Latest news» Clinical negligence claims: the application of Bolam and Bolitho in ‘treatment’ and ‘pure diagnosis’ cases. Clyde & Co LLP is a limited liability partnership registered in England and Wales. From Bolam-Bolitho to Modified-Montgomery - A Paradigm Shift in the Legal Standard of Determining Medical Negligence in Singapore. 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 related to a prescription in November 1995. The application of the Bolam test to cases of medical negligence has been the subject of prolonged criticism. 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… These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust [2019] Med LR 384. 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. 1. [34] Indeed, half a century has passed since the Bolam test was formulated (the Bolitho addendum was introduced later on … 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 … Medical advances have to be well-evidenced before being put into practice, and the court is hardly likely to encourage behaviour to the contrary. 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.” Is your business prepared for climate change? Between May 2013 and February 2014 the claimant developed a left-sided psoas abscess containing gas and fluid. Mr Jones argued that his mother had been negligently prescribed Nifedipine during her pregnancy, causing him brain injury. Further evaluation was recommended by the reporting radiologist. Over time, it can result in linked abscesses, pain and inflammation. 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 problems inherent within the Bolam liability test will then The question for the court was whether – regardless of Nifedipine subsequently being used in ordinary practice – the obstetrician had been negligent for being ahead of their time. 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). Doctors owe a duty of care to their patient. © 2020 Penningtons Manches Cooper LLP.All rights reserved.Website design by Frontmedia / Dynamic Pear. 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. The obstetrician made the decision to prescribe Nifedipine, a tocolytic drug, in order to suppress or postpone pre-term labour. We doubt it. 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. Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam. 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. In noting the distinction, Mr Lewis was reluctantly bound by the decision of Penney v East Kent HA [2000] Lloyds Rep Med 41. The second CT scan, in the face of raised inflammatory markers, objectively reported that there were visible abnormalities but expressed uncertainty over the diagnosis. Bolam therefore appears to have become concretised, and Bolitho has not had any major impact on the scope and force of this decision. Bolam-Bolitho to Modified-Montgomery—Han

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