But the Bolam test is the test for medical negligence and has been routinely rolled out for all types of case for decades. © Clyde & Co LLP, Can a doctor really be liable for being ahead of their time when treating patients? In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority [3]. [34] Indeed, half a century has passed since the Bolam test was formulated (the Bolitho addendum was introduced later on … 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 … The reporting radiologist advised that its appearance was in keeping with omental infarction rather than malignancy. But a more realistic question is this: is a doctor negligent by the standards of the day entitled to be lucky? 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 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. 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 … 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 second CT scan, in the face of raised inflammatory markers, objectively reported that there were visible abnormalities but expressed uncertainty over the diagnosis. 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. Over time, it can result in linked abscesses, pain and inflammation. 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. 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] . It re-examines the landmark House of Lords case of Nadyne Montgomery v Lanarkshire Health Board, having regard for Bolam as modified by Bolitho. 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. 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 … 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… 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. 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. Bolam sets out that a doctor is not negligent if they have acted in accordance with a responsible body of opinion. The Bolam test. 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. In noting the distinction, Mr Lewis was reluctantly bound by the decision of Penney v East Kent HA [2000] Lloyds Rep Med 41. The Bolitho case was the start of the erosion of medical protectionism enshrined in Bolam as it gave the judiciary far greater discretion when … There was a concern that the symptoms were suggestive of pre-term labour. 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. 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. Authorised and regulated by the Solicitors Regulation Authority. In Bolitho v City and Hackney Health Authority, the House of Lords followed and applied the ‘Bolam principle’. 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. Duri… 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. Sign up to receive email updates straight to your inbox. Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam. 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. Over time, it can result in linked abscesses, pain and inflammation. 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)). Ultimately, the court dismissed the claimant’s case. This article considers the potentially untapped significance of the Bolitho test, while the Bolam test looks to be facing a challenging twilight. 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. 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 application of Bolam and Bolitho has come under criticism before in the matter of Muller v Kings College Hospital NHS Foundation Trust [2017]. What if they are not following a recognised practice, but time and advancements in treatment prove them right? » News & publications» Latest news» Clinical negligence claims: the application of Bolam and Bolitho in ‘treatment’ and ‘pure diagnosis’ cases. 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 case related to a prescription in November 1995. That would be an unlikely sea change in clinical negligence. The application of the Bolam test to cases of medical negligence has been the subject of prolonged criticism. Kerr J expressed that such matters should be a decision for the court as a matter of fact and not delegated to experts. © 2020 Penningtons Manches Cooper LLP.All rights reserved.Website design by Frontmedia / Dynamic Pear. Why Bolitho v City and Hackney Health Authority is important. We doubt it. Can a doctor really be liable for being ahead of their time when treating patients? 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 core of the case was whether an obstetrician's prescription of Nifedipine was negligent. Bolam sets out that a doctor is not negligent if they have acted in accordance with a responsible body of opinion. 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. Bolam-Bolitho to Modified-Montgomery—Han Kamla Meaning In Punjabi,
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