Over time, it can result in linked abscesses, pain and inflammation. 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.  In Bolitho (Administratrix of the Estate of Patrick Nigel Bolitho (deceased)) v City and Hackney Health Authority  4 All ER 771 it was established that a doctor could be liable for negligence in respect of diagnosis and This includes the âbut forâ test, arguments relating . Bolam v Friern Hospital Management Committee  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. From Bolam to Bolitho: unravelling medical protectionism Christopher Stone January 2011 Introduction In 1990/91 the cost of clinical negligence claims to the NHS was estimated at around £52 million1.Twenty years later, by 2009 In 1997, Lord Browne-Wilkinson, in Bolitho v City and Hackney HA, reaffirmed Here we look at the application of clinical negligence law, the standard to be applied to clinicians, and how to prove what injury has been suffered as a result of alleged negligence. We doubt it. The standard of care for professionals is comparison to their professional peers. That would be an unlikely sea change in clinical negligence. Standard of care is judged at the time the negligence occurred. Traditionally the standard of care in law has been determined according to the Bolam test. In the case of Hii Chii Kok v Ooi Peng Jin London Lucien [Hii Chii Kok], 1 the Court of Appeal departed from established case law and created a new test to determine the standard of care a doctor must meet to discharge his duty to the patient he is advising. 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. Can a doctor really be liable for being ahead of their time when treating patients? Doctors owe a duty of care to their patient. Recent case law shows how the court has applied the Bolitho approach in determining the standard of care in cases of clinical negligence. Dr Rodger was concerned and arranged for him to be nursed by a special nurse on a one-to-one basis. An essential component of an action in negligence against a doctor is proof that the doctor failed to provide the required standard of care under the circumstances. Therefore, Dr. Horn's argument was that her breach of duty did not cause Patrick's death. Sooriakumaran, P, âThe changing face of medical negligence law: From Bolam to Bolithoâ  69 MJHM 6. The House of Lords decision in Bolitho seems to be a departure from the old Bolam test established by the Queen's Bench Division in a 1957 case Bolam v. Friern Hospital Management Committee.  Dr Horn was notified but did not attend to Patrick. Bolitho v. City and Hackney Health Authority  4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. Mr Justice Hutchinson, the judge in the original trial, said that as a "layman" he would have thought intubation was the correct procedure (as did five of the experts). , The House of Lords held that "a defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter". The test was formulated in the case of Bolamwhich, despite dating back to 1957, remains good law. cases involving skilled professionals such as doctors. Since it was introduced in 1957, the Bolam principle has been routinely applied to medical negligence cases in determining whether the doctorâs acts fell below the required standard of care. The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would â¦ The Bolam Test has formed the backdrop to all clinical negligence cases since 1957, providing a cornerstone for the defence of these claims. But a more realistic question is this: is a doctor negligent by the standards of the day entitled to be lucky? Clyde & Co LLP is a limited liability partnership registered in England and Wales. Box 3: Negligence (including medical negligence) is a normative doctrine âWhat usually is done may be evidence of what ought to be done â¦ but what ought to be done is set by a fixed standard of reasonable prudence, whether it is complied with or not.â Patrick Bolitho, a two-year-old boy, was suffering from croup. Patrick's mother, as administratrix of his estate, sued the local health authority for negligence. Although he did not consider it necessary to decide the point, Mr Justice Stewart commented that the question remains: if a doctor would not be in breach of duty for prescribing a drug in 2002 because of changes of medical opinion, then should a doctor prescribing the same drug in 1995 be found negligent in a trial taking place after 2002? The main source of discontent was the apparent judicial abdication of the power to determine the standard of care required to avoid negligence liability. 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. The case related to a prescription in November 1995. The core of the case was whether an obstetrician's prescription of Nifedipine was negligent. Sign up to receive email updates straight to your inbox. Patrick had two respiratory episodes where he went pale and his breathing became "noisy". This states that negligence can only be proven in the case of a missed diagnosis if the chance of survival would have been over 50% had the illness been diagnosed. The paper "The Bolam Test of Negligence" states that more fundamental shift away from negligence would support disclosure of troubles with explicit measures and the StudentShare Our website is a unique platform where students can share their papers in a matter of giving an example of the work to be done. The Bolitho Test The case of Bolitho v City and Hackney Health Authority dates back to 1997 and concerned the treatment of a sick child in hospital. I. All the experts agreed that intubation is not a routine, risk-free process. , A group of eight medical experts testified in the case at first instance. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. Introduction In order to prove liability in Negligence, the claimant must show on the balance of probabilities that: the defendant owed a duty of care, breached that duty by failing to meet the standard of care required and as a result the claimant suffered â¦ The Bolitho ruling means that testimony for the medical professional who is alleged to have carried out the medical negligence can be found to be unreasonable, although this will only happen in a very small number of cases. Mr Jones argued that the obstetrician was negligent on the basis of the test in Bolitho v City and Hackney Health Authority  AC 232, refined in Bolam v Friern Hospital Management Committee  1 WLR 582. Neo HY(1). This action was continued by Bolithoâs mother as adminastrix of his estate. So there was a need to decide if the hypothetical decision not to intubate Patrick would have been a breach of duty. These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust  Med LR 384. 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. Bolitho v. City and Hackney Health Authority  4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. Although he was revived, he suffered severe brain damage and later died. She argued that Patrick would have lived if he had been intubated. Learn vocabulary, terms, and more with flashcards, games, and other study tools. His mother experienced "false alarms" of going into labour during. If past medical decisions could be rendered 'logical' by future developments, why would the reverse not also be so? Accordingly, it is clear that a threshold of this standard of care must be established in order to objectively assess if medical negligence has occurred. However, he did not think the testimony of the other three experts was "unreasonable" or "illogical" therefore he could not dismiss them. AUTUMN 1998 The Standard of Care in Medical Negligence 475 occasion, override expert medical evidence.'" Medical advances have to be well-evidenced before being put into practice, and the court is hardly likely to encourage behaviour to the contrary. An understanding of this approach and of the shift from the traditional Bolam test is Therefore she was not negligent. However, following each episode Patrick seemed well and was 'jumping' around. Cases The claim was dismissed as causation must be proved to bring a claim in negligence and there was no causation here. Clinical Negligence â Bolitho Test 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. PDF | On Oct 12, 2014, Yasin Hasan Balcioglu and others published Medical negligence and standart of care in English law: Bolam and Bolitho tests | â¦ There was a concern that the symptoms were suggestive of pre-term labour. If Dr Horn had come to see Patrick, she would not have intubated him. , Learn how and when to remove this template message, Bolam v. Friern Hospital Management Committee, British and Irish Legal Information Institute, https://en.wikipedia.org/w/index.php?title=Bolitho_v_City_and_Hackney_HA&oldid=984030901, Articles needing additional references from November 2009, All articles needing additional references, Creative Commons Attribution-ShareAlike License, This page was last edited on 17 October 2020, at 19:04. According to that test, which has been criticised by academic commentators, a doctor would not have acted negligently if his actions conformed to a practice supported by a body of professional opinion. The question for the court was whether – regardless of Nifedipine subsequently being used in ordinary practice – the obstetrician had been negligent for being ahead of their time. Other fields face a more stringent analysis by judges in an effort to guarantee that expert If the opinion were illogical, then the action would still be a breach of duty. Although Mr Justice Stewart left the issue for the consideration of a higher court, we have little doubt that a court would not find that Bolam can be inverted in this way. What if they are not following a recognised practice, but time and advancements in treatment prove them right?  Dr. Roberton described it as "a major undertaking--an invasive procedure with mortality and morbidity attached". Bolam sets out that a doctor is not negligent if they have acted in accordance with a responsible body of opinion. Background The UK Supreme Court judgement in âMontgomery v Lanarkshire Health Boardâ1 has become the landmark case in consolidating the law on standard of care of doctors with regard to duty on disclosure of information to patients on the risks of proposed treatment and possible alternatives.2 Doctors are now obliged to take âreasonable care to ensure that the patient is aware of â¦ Authorised and regulated by the Solicitors Regulation Authority. 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 Author information: (1)Department of Palliative Medicine, Tan Tock Seng Hospital However, the court in Bolitho did not specify in what circumstances it would be prepared to hold that the doctor has breached his duty of care by following a practice supported by a body of professional opinion, other than stating that such a case will be "rare". The claimantâs 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.  "A young child does not tolerate a tube easily and the child unless sedated tends to remove it. Is your business prepared for climate change? KEY WORDS: Bolam test, Bolitho, clinical negligence, legal standard of care, medical litigation In medical litigation, the central question that arises is whether or not a doctor has attained the standard of care that is required by Between May 2013 and February 2014 the claimant developed a left-sided psoas abscess containing gas and fluid. 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. For example, if a case of cancer was not found, but the patient would have only had a 35% chance of survival anyway, negligence would not â¦ This led to a fall in her blood pressure, a hypoxic episode, and ultimately to Mr Jones suffering from periventricular leukomalacia (a brain injury affecting premature infants). Bolitho v City and Hackney Health Authority1 IN recent years, considerable criticism has been levelled at the test for determining the standard of care in negligence with respect to persons within the medical profession. Strauss, DC & JM Thomas, âWhat does the Medical Profession mean by âStandard of Care?ââ  27 JCO 32. " One of the experts stated that Patrick's recovery after each episode did not show a progressive respiratory collapse and that there was only a small risk of total respiratory failure.. Five of them said they would have intubated Patrick after the second episode, let alone the first. However, in its original context, the In his opinion Lord Browne-Wilkinson accepted the principle that a judge would have to consider whether a body of medical opinion was logical, but decided that the opinion used by the defence in Bolitho was indeed logical. The original judge also concluded that Dr Horn failing to go and attend to Patrick did not cause his death. What if they are not following a recognised practice, but time and advancements in treatment prove them right? The Bolam principle. Accordingly there was no breach of duty. It ultimately required surgical drainage and multiple surgical interventions; following which, microbiology evidence confirmed actinomyces. Mr Justice McNair put it simply in his judgment: âI myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.â The clinician is judged in accordance with the standards of the reasonably competenâ¦ The Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. INTRODUCTION When is a doctor liable for giving a patient negligent medical advice? That decision would have been supported by a body of professional opinion. Bolitho brought an action in the tort of negligence against the defendant health authority. But Dr Horn argued that even if she had come to see Patrick, she would not have intubated him, and such a decision would have been consistent with a respectable body of professional opinion. These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust  Med LR 384. Bolam test = old standard of care D in this case argued that he gave the procedure in exactly the same way he was taught and courts held that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men. Three of them said they would not have. Mr Jones argued that his mother had been negligently prescribed Nifedipine during her pregnancy, causing him brain injury. 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 â¦ It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. The claimants argued that the doctors failed to take reasonable care by not attending to Bolitho after the call from the nurses. The obstetrician made the decision to prescribe Nifedipine, a tocolytic drug, in order to suppress or postpone pre-term labour. Half an hour after the second episode, Patrick suffered both a respiratory arrest and a cardiac arrest. As Lord Brown'e-Wilkinson put it in Bolitho, referring to clinical judgment: '... if, in a rare case, it can be demonstrated that Sample Undergraduate 2:1 Nursing Assignment See for yourself why we're the world's leading academic writing company. The following PI & Clinical Negligence news provides comprehensive and up to date legal information on Omissions of treatment in clinical negligence cases and Bolitho (Palmer v Portsmouth Hospitals NHS Trust) The professional opinion relied upon cannot be unreasonable or illogical. Duriâ¦ © Clyde & Co LLP, Can a doctor really be liable for being ahead of their time when treating patients? He was admitted into St Bartholomew's Hospital and was placed under the care of Dr Horn (the senior registrar) and Dr Rodger. One of our expert writers has created this bespoke sample Law assignment that shows the incredible quality that's guaranteed with every piece of work ordered. Start studying Negligence- Breach of duty. Bolam insists upon a negligence test that is unique only to the medical profession, as the standard of care is âset by other doctorsâ  . From Bolam-Bolitho to Modified-Montgomery - A Paradigm Shift in the Legal Standard of Determining Medical Negligence in Singapore. The law defines this as a duty to provide care that conforms to the standard reasonably expected of a competent doctor. This presented an interesting inversion of the usual test, as subsequent to the events in question Nifedipine had become a standard drug. On the health authority's side, it was admitted that Dr Horn had breached her duty of care in not coming to see Patrick. Bolitho v City and Hackney HA Standard of care is that of the reasonable person professing to have or exercising that skill at that level.  Especially on a young child as they must be anaesthetised and ventilated. Only in "a rare case" would the courts find that the body of opinion is unreasonable. They must be anaesthetised and ventilated [ 1 ] Dr Horn was notified but did not attend to Patrick action. The backdrop to all clinical negligence still be a breach of duty doctor liable for giving a patient negligent advice... To the events in question Nifedipine had become a standard drug be a breach duty... 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