Medical Law: A Very Short Introduction (Very Short Introductions) by Charles Foster

Medical Law: A Very Short Introduction (Very Short Introductions) by Charles Foster

Author:Charles Foster
Language: eng
Format: mobi, epub
Publisher: Oxford University Press, USA
Published: 2013-02-27T16:00:00+00:00


Breach of duty

In England and many other jurisdictions the test for breach of duty is the Bolam test (see Bolam v Friern Hospital Management Committee (1957)). This says that a professional will be in breach of duty if what they have done would not be endorsed by any responsible body of opinion in the relevant specialty. It is a test both of substantive law and of evidence, and has become ubiquitous in professional negligence law, being used to determine the liability of everyone from heart surgeons to plumbers (who, after all, have a lot in common).

It has sometimes been abused by defendants and defendant-friendly judges, some of whom, seeing any attack on fellow professionals as a general attack on the middle classes, have been happy to acquit a doctor of negligence on the basis of the evidence of another doctor who, having miraculously remained on the register for an undistinguished professional lifetime, is prepared to say (at £200 an hour) not that he would have done an operation in the way that the defendant did, but that he once met someone in the golf club who’d also astonishingly escaped erasure who did it that way.

Claimants rightly railed against this. Their complaints led, in England, to a revisiting of the test in Bolitho v City and Hackney Health Authority (1998), in which the court pointed out something that had tended to be forgotten—namely that the old test referred to responsible opinion. There may be cases, it said, where, notwithstanding evidence that the defendant adopted a common practice, the defendant might still be negligent—if the practice did not stand up to logical scrutiny.

This provoked howls of worry from doctors, concerned that their professional practices would be second-guessed by medically unqualified judges. To many, those howls sounded petulant. The doctors were really insisting that they and only they should set the standards by which they should be judged. And if you are the law, aren’t you above the law?

It was precisely those concerns that had made other jurisdictions reject the Bolam approach and leave the setting of legal standards in the hands of the courts. The best examples relate to the law of consent: see below.

Bolam is on the retreat. Bolitho chased it into its proper place, but medicine itself has eroded Bolam’s authority significantly. Medicine is increasingly evidence-based. Proper medical practice is increasingly based on large, statistically significant studies of efficacy which are embodied in clinical guidelines. There’s a diminishing amount of room for opinion. If the literature conclusively shows that practice X is better than practice Y, then (economic considerations aside) how can anyone responsibly adopt practice Y?

Consent cases occupy a curious corner of the clinical negligence world. They are very common. A patient might, for instance, say that she was not appropriately warned about the risks of surgery, that had she been warned she would not have consented to it, and accordingly that she would have been spared the damage wrought by the surgery.

Even in jurisdictions where Bolam rules, it



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