Duty of Care

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25 August, 2021

Clinical negligence is when healthcare professionals physically or mentally hurt you due to the standard of health care they have given you.

Clinical negligence is proved using a 3-part test. The test looks at:

  • that the doctor owed a duty of care to the patient,
  • that the duty of care was breached, and
  • as a direct result of the breach the patient suffered harm.

What is duty of care?

Duty of care was established from the case of Bolam v Friern Hospital Management Committee. Mr Bolam made a claim against the Friern Hospital Management Committee after he had undergone voluntary electro-convulsive therapy. The controversial treatment caused Mr Bolam to flail around to such a degree that he fell from his table and severely injured his pelvis. He argued that he should have been given relaxants, restrained by the doctors, and warned about the risks of the treatment beforehand.

The jury decided that no negligence had taken place. Muscle relaxants were not favoured in the profession, while retaining patients was also potentially dangerous. It was also common not to warn patients of risks when the level of risk was relatively low.

Why is that relevant?

The Bolam test is the test for breach of duty on the part of medical professionals. The Bolam test stipulates that a doctor is not negligent if he/she acts in accordance with a practice accepted as proper by a reasonable and responsible expert in that field.

In the case of Bolitho v City and Hackney Health Authority, a 2-year-old child was admitted to hospital suffering from breathing difficulties. A doctor was summoned but did not attend as her bleep was not working due to low battery. The child died. The child's mother brought an action claiming that the doctor should have attended and intubated the child which would have saved the child's life. Eight medical experts had been brought before the judge. Five said that any competent doctor would have intubated after the second episode, if not the first. Three said the opposite.

Bolitho refines the Bolam test as the court ruled that simply providing a defence is not quite good enough, but that the defence and its body of opinion must be reasonable and responsible. A case which is defended based on a practice which is not reasonable or logical thus cannot be defended.

How to prove duty of care?

Today claimants must prove that their care fell below what is reasonably expected of what a doctor is expected to do and that their injury or illness was a direct result. Claimants need to collect a medical report from an independent medical professional to judge whether anything could or should have been done differently.

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.

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