Advancements in the medical industry now mean that there has been an increase in the number of individuals in today’s society who rely on medical treatment. However, with this reliance emerges the possibility for mistakes, and misdiagnosis’ by doctors and other medical professionals. For anyone believing that they have a medical negligence claim, they must first examine the law on negligence which is to be found under the law of tort.
In any negligence case there are primarily three legal issues that must be overcome, these are; the existence of a duty of care, a breach of said duty, and that there is a clear and unbroken chain of causation linking breach to the harm suffered by the claimant. The standard of care is the starting point in any negligence case. The standard of care expected is that of the reasonable man or the ‘man on the Clapham omnibus’. However, this standard of care is higher for professionals exercising a particular skill i.e. doctors, and other medical professionals. The landmark case of Bolam v Friern Hospitals Management Committee set the standard of care for doctors as being the ‘standard of the ordinary skilled man exercising and professing to have that special skill ... A man need not possess the highest skill at the risk of being found negligent’. Simply, this means that every doctor will be held to the standard of care expected of any doctor exercising that same skill e.g. a surgeon conducting surgery. The latter part of this quotation from the judgement establishes the legal principle that even a training doctor will be held to the same skill as the ‘ordinary skilled man’, up to and including a qualified doctor whom may have many years of experience. A problem with the Bolam test was the low threshold that it created. It became apparent that an accused doctor need only seek the approval that they had acted in accordance with a practice accepted as proper by a ‘responsible body of medical men’. This was taken advantage of and the law soon changed in 1998. The second landmark case regarding the standard of care expected of medical professionals is Bolitho v City and Hackney Health Authority (1998). This case updated the standard of care test with the Court stating that they would no longer accept a doctor escaping liability for negligent treatment or diagnosis, ‘just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant’s treatment or diagnosis accorded with sound medical practice’. The Court stated that they must now show a logical explanation for their actions. This changed the standard of care expected and was created to impose tighter thresholds. The implications of both Bolitho and Bolam have been tremendous with regards to medical negligence claims. For now, the doctor must prove under all the circumstances that there are others of the same skill whom would agree with their decision, and also they must provide a logical explanation for their actions, which is acceptable to the judge. The idea of holding doctors responsible and to what extent restrictions should be imposed has always been controversial. The argument will always remain with one side believing that medical professionals cannot play God; as was discussed in the well-known Sidaway case, and they must be held fully accountable. Whereas, there are those that believe that if a doctor can be viewed as a defendant, and find themselves at the bitter end of medical negligence proceedings, then this will surely act as a strong deterrent to anyone wishing to enter into the medical profession. Summerfield Browne have offices in London, Birmingham, Cambridge, Oxford, Northampton & Market Harborough, Leicester.
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