Bolam V Friern Hospital Management Committee - Explanation

Explanation

It is important to remember that the "Bolam test" is just one stage in the fourfold test to determine negligence. First, it must be established that there is a duty of care (between a doctor and patient this can be taken for granted). Second, it must be shown that the duty of care has been breached. This is where the Bolam test is relevant, because falling below the standard of a responsible body of medical men means that person will be considered negligent. But in addition, third it must be shown that there was a causal link between the breach of duty and harm. And fourth, it must be shown that the harm was not too remote.

The Bolam test does not vary significantly in professional negligence litigation, but it causes greater difficulty for the courts in medical negligence than in claims against, say, a lawyer or an accountant, because of the technical issues involved. The problem is as follows:

• The award of damages in the civil law is intended to compensate the claimant for the loss and damage caused by the relevant defendant.
• A person seeks the assistance of a medical practitioner because of an inherent condition which may be physical, psychological, or contain elements of both, e.g. a person may be admitted to hospital with traumatic compression injuries resulting from an industrial or road traffic accident, and exhibit symptoms of shock.
• At this point, the patient may already have a cause of action against an employer for failing to properly fence the machine that caused the injuries, or against the driver of a vehicle. If so, that potential defendant will be liable to pay damages for all the injuries caused and the consequential losses.
• But suppose that the claimant receives negligent treatment in the hospital. In theory, a second cause of action arises against the medical practitioners and their employers (see vicarious liability). But the issue of causation is problematic. The court must be able to distinguish between any loss and damage flowing from the two causes.
• Damages for the first cause must be valued by assessing what hypothetically perfect treatment would have achieved. This may be a complete recovery at some time in the future, or residual permanent disability represented by a percentage loss of movement in joints, etc.
• In the second action, the court must find that the negligent treatment actually caused a different outcome which is measurably more severe than the first hypothetical outcome. Thus, if the only consequence to the negligent treatment was delay in the recovery time and the outcome ultimately delivered matches the hypothetical perfect outcome, the measure of damages will be limited to the additional pain and suffering, and additional loss of earnings.
• Now substitute a heart attack for the accident. The patient is not entitled to any compensation for injuries arising naturally, but only for those injuries directly attributable to the negligent treatment. The post mortem shows that the patient was going to die no matter what the medical practitioner did but, in this instance, the negligence probably accelerated the inevitable death.

All these legal issues can only be addressed by medical opinion because, by its nature, medical practice has not reached the stage of scientific reliability where such questions can be answered with certainty. In a dispute about a will, for example, it might be alleged that because a solicitor delayed implementing a change to an existing bequest, an intended beneficiary was denied the expected outcome when the testator unexpectedly died. Here, efficient action by the solicitor changes the will and matches everyone's expectations. The difference between a quantified bequest and no bequest is easy to measure. But it has been difficult for the law to achieve any real degree of consistency in the medical field because assessing whether the standard of care has been met and issues of causation depend to such a marked degree on the opinions of the medical profession itself.

For these purposes, the evidence produced by the claimant must satisfy the burden of proof which, in a civil case, is the balance of probabilities. Hence, the burden is satisfied and negligence is proved if there is greater than 50% chance that the claim as argued is correct, i.e. the duty was owed and the breach caused the injury. So the question of law is based on assessing the medical chances of recovery. If, given proper treatment, the claimant's chances of avoiding the current level of injury were anything less than 50%, he or she will not be awarded any damages at all. There is no right to damages for the loss of the prospect of recovery if the chance of that recovery was less than probable.