Professional Negligence in English Law - Medical Negligence

Medical Negligence

For a full explanation, see Bolam Test

Medical negligence (also known as medical malpractice )differs from other litigation because the claimant must rely on expert medical evidence to establish all the major elements of liability. Causation is particularly difficult to prove because the effects of the allegedly negligent treatment must be distinguished from those of the patient's underlying condition which gave rise to the need for treatment. Further, the assessment of damages is often complicated because the court must compare the claimant's actual condition and prognosis with the hypothetical condition and prognosis if the patient had received competent medical treatment. The court must only compensate for the injuries caused by negligent treatment, not for any underlying condition. In Bolam McNair J. stated at 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." To determine whether a body of opinion is responsible, reasonable or respectable, the judge will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter. For example, in Hucks v Cole reported in (1993) 4 Med. L.R. 393, a doctor failed to treat a patient who was suffering from septic places on her skin with penicillin even though he knew there was a risk of puerperal fever. Sachs LJ.. said at 397:

"When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna—particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of patients."

Similarly, in Edward Wong Finance Co. Ltd. v Johnson Stokes & Master (1984) 1 AC 296, solicitors had completed a mortgage transaction in "Hong Kong style" rather than in the English style. The fact that this style was almost universally adopted in Hong Kong did not make it reasonable or responsible because it did not guard against the risk of fraud. Thus, the solicitors were liable for negligence because they should have taken precautions against an obvious risk. But, the Lords in Bolitho v City and Hackney Health Authority (1997) 4 AER 771 held that it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.