The Fundamental Test for Clinical Negligence and How It Has Evolved.

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03 February, 2021

There is a distinction between a complaint and a clinical negligence claim. The NHS Complaints Procedure can address the former, but if a claim for compensation is required it is done through legal action.

There is a threshold test from a case of Bolam v Friern H.C.C (1957), which has formed the backdrop since 1957. The ruling attempted to objectively quantify the standard of care.

"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary man exercising that particular art."

The ruling also stated:

"that he 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 round, 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."

What this meant is that a Defendant could produce medical evidence from an expert that agreed with their actions and the claim would fail. The National Institute for Health and Care Excellence (NICE) developed an expected standard of care. The test has evolved through case law. The case of Sidaway v Board of Governors of Bethlehem Hospital (1984), ruled that a doctor had a duty to inform a patient of all of the risks of the procedure in order to make an informed decision. Effectively, the Bolam principal did not apply to consent issues.

In a case of Hucks v Cole (1993) the standard of care provided by a doctor was found to be outdated, despite 'a body of medical men' still using it.

The pivotal case of Bolitho v City and Hackney Health Authority (1997), defined that the action adopted had to withstand logical analysis. A Judge could decide that an opinion was not reasonable or responsible. The fact that it was done by a body of medical men was diluted.

The Supreme Court ruled in Montgomery v Lanarkshire Health Board (2015), that there was a need for doctors to obtain informed consent from patients. In this case the Claimant was not told about a 9-10% risk of shoulder dystocia before delivery.

Because it was not expected, the treatment provided was not a standard suitable for that Client.

Each case is looked at on its own merits and facts, but these cases show that medics cannot rely solely on whether a 'body of medical men' would have acted in the same way. Decisions taken must be 'responsible' and logical when scrutinised by a Judge.

For more information contact Leonie Millard in our Clinical Negligence department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Clinical Negligence department here

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