There has been a recent rise in the demand for medical negligence lawyers, mirroring the rise in claims against the NHS, as was pointed out in this recent article (http://thestudentlawyer.com/2013/08/23/becoming-a-medical-negligence-lawyer/).You need not look much further than the British Royal Infirmary Inquiry (http://webarchive.nationalarchives.gov.uk/20090811143745/http://www.bristol-inquiry.org.uk) where two surgeons carried out heart surgery on infants, ‘without due regard to safety’, or the Alder Hey scandal, to see the prevalence of clinical negligence claims. In 2010/2011 the NHS Litigation Authority (NHSLA) paid out over £7bn in clinical negligence claims, showing a rise of 30% from 2009/2010. Perhaps unsurprisingly, the largest number of claims come from surgery, totalling 39% of all claims. This is closely followed by Obstetrics and Gynaecology, amounting to 21% and general medical claims coming in at 18%. Long gone are the days of ‘doctor knows best’, with this paternalistic stance being replaced with a more autonomous society. With people more willing to question doctors it is logical that they are also more willing to sue when things go wrong.
Medical treatment is considered negligent when it falls below a certain standard of care. Being a tort there are certain things that must be established for a claim to succeed. First, the claimant must establish they were owed a duty of care by the professional. Once this has been established, they must prove the duty of care was breached and that this breached caused the damage. Normally, it will be clear if the duty is owed as the doctor to patient relationship is a recognisable situation acknowledged by the courts. The issues arise when establishing if the doctor breached the duty or if their actions caused the damage.
The classic test for determining whether a doctor has fallen below the standard of care was defined in Bolam v Friern Hospital Management Committee  1 W.L.R. 582. McNair, J. stated,
‘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 skilled in that particular art’.
This became known as ‘the Bolam test’ and meant that the medical profession had a near endless influence in determining what amounted to medical breach. This stood, almost unquestioned, as good law for 40 years until the decision in Bolitho v City and Hackney Health Authority  3 W.L.R. 1151. Here, Lord Browne-Wilkinson modified the test, adding, ‘the court has to be satisfied…that such opinion has a logical basis’. This meant that the court must be satisfied the experts, ‘directed their minds to question of comparative risks and benefits and reached a defensible conclusion on the matter’. The extent of the change this has had on the courts in the context of medical negligence has since been subject to much debate.
Bolam seemed to impose an almost incredibly high hurdle that the claimant must overcome in order to prove a doctor acted negligently. It appeared that the claimant would have to show that no responsible doctor would have acted the same way that the defendant doctor did. This took all decision making power away from the courts and handed it to the medical profession. This deference to the opinion of doctors was then accepted, almost without question. In the subsequent case Sidaway v Board of Governors of the Bethlem General Hospital A.C. 871 when it was held that ‘the standard of care is a matter for medical judgement’. The danger with this is that it places doctors on a pedestal whilst leaving the courts without adequate means of scrutiny.
The ‘new dawn’ of Bolitho.
In Bolitho, the court seemed to redefine the borders of the medical profession’s influence over negligence. Despite sending ripples of change through clinical negligence litigation (being relied upon in cases like French v Thames Valley Strategic Authority, it was frequently overlooked. Additionally, the judgement in Bolitho came at an appropriate time. Doctors were becoming increasingly willing to evaluate their practices and there has been a recent shift towards evidence based medicine. The Royal College of Medicine and the National Institute on Health and Clinical Excellence have both compiled guidance on medical treatment, giving flesh to the bones of Bolitho.
Harvey Teff, a professor at Durham University, suggests a move towards a ‘guidance knows best’ society but this does not mean that departure from guidelines will automatically be negligent. Could it be that if we completely deprived medical professionals of their influence in court, we would have a system where doctors fear practicing? Defensive medicine is not ideal, nor is it the intention.
Perhaps rather than heralding a ‘new dawn’ for clinical negligence, Bolitho provided a lawyers with another ‘tool’ to prevent injustice. It shows the courts are more willing to scrutinise expert opinion and provides the opportunity to be the final arbiters of medical breach.
Causation and the ‘but-for’ test.
Any law student who has taken the Torts module will be familiar with the ‘but for’ test. It means that claimant will have to show that the damage would not have happened ‘but for’ the doctor’s actions. If the claimant can get past the difficulties establishing a breach of duty, they will then have to prove that breach lead to the damage suffered. The frequently cited example of the test is Barnett v Chelsea and Kensington HMC  1 Q.B. 428. Here, a man arrived at hospital complaining of stomach pains and the doctor refused to see him. Despite the man later dying, the doctor was not found guilty of negligence as there was nothing the doctor would have been able to do to save him. It is not always so simple. Difficulties arise when the damage could have been caused by any number of factors.
This was the case in Wilsher v Essex AHA  A.C. 1074 when the doctor’s negligence was one of five possible causes. In Bolitho, it was argued by the defendant that their actions did not fulfil the test as they would not have acted any differently had they examined the patient.
Is the right balance being struck?
Although it has been reported that the NHS spends a staggering £700 on negligence cover per birth (http://www.bbc.co.uk/news/health-24856772 ) and an estimated 10% of patients experience some form of negligence, it may not all be negative. At a time when the media are all too quick to criticise doctors, coupled with the shift from the so called ‘presumption of beneficence’ Lord Woolf believes to exist, the difficulty with proving negligence isn’t necessarily a bad thing. If doctors were to constantly live with the fear that their actions would lead to negligence claims, they would not act the same way. We would then be faced with a lack of medical advancement and stunted innovation. Surely this is would be a step backward? Additionally, despite often appearing unwilling to find doctors negligent, the court would hopefully be there to compensate clear acts of negligence.
Currently, doctors are free to practice, within reason, how they feel fit. If they should act in a completely unreasonable way, the court will be able to declare it illogical and compensate.