#1759 - The Law Of Medical Negligence - Medical Law

Criticisms of the Current Legal System of Medical Negligence

Is the Bolam test the correct one?

• Means that we don’t judges becoming amateur doctors – this is perfectly justifiable

  • The nature of professional services leads to this need

    • The public at large don’t have these skills or body of knowledge that professionals do

      • Often, only a professional’s peers can judged these questions - When those peers disagree and the disagreement illustrates genuine and well founded debate within a profession

        • Judges are not generally equipped to adjudicate in such a dispute.

        • Brazier: A professional should not be penalised, and be held to be incompetent, just because a judge fancies 'playing' at being architect, solicitor or doctor

          • judges may quite properly be hesitant to intervene to second-guess the opinion held, and reasonably held, by one body of opinion within a profession.

• The problem is that the professionals begin to set the standards

  • Not appreciating evidential value, just letting set standards

    • Bolam is correct to recognise that in complex scientific or technical fields, judges may and should be reluctant to cast doubt on evidential veracity

      • However, we appear to come to the point where the profession is actually setting the standard of liability

        • Not merely that judges are using the standards given as having a certain evidential value.

  • This is distinct from other professions

    • In all other professions it is no defence for an individual to show that others would have acted in the same way

    • Jones: In other professional negligence claims, time after time, judges have made it clear that expert opinion must be demonstrably responsible and reasonable

      • Edward Wong Finance Co. Ltd. v. Johnson Stokes and Master - a practice nearly universally endorsed by solicitors in Hong Kong was nonetheless found to be negligent

        • The risk of fraud was obvious and inherent in the practice. It could have been prevented with ease.

          • The fact that other respected professionals followed the same 'unsafe' practice was not sufficient evidence to say that the practice was reasonable.

    • Me: Hencewhy the judgement in Burne v A is a good one – it requires judges to see whether the experts can defend their views justifiably

      • Avoiding amateur judgements based on an incomplete picture of the justifications, but also not simply accepting what is given

        • You only need to give the experts the opportunity to defend.

• The more generous interpretation of Bolam places a massive burden on claimants

  • We have the position where if D can find one expert to help them, C’s claim fails

    • C has to find every expert in the field and for each of them to say that what D did was negligent

      • Brazier: Conversely, all Bolam has been interpreted to require is that D fields experts from their medical specialty

        • prepared to testify that they would have followed the same course of management of C as D did.

          • If such experts can be identified, are patently honest and stand by their testimony vigorously,

            • neither they nor D will be asked to justify their practice

  • The test is too high – it needs an expert to not only say that what D did was not what they would have done, but that no other colleague would have done it

    • It’s quite hard to find an expert who will make such a damning condemnation

• Undermines the idea of collaborative partnership between the doctor and patient

  • Seems to reinforce paternalism – i.e. doctor knows best.

    • In Re F, regarding the interpretation of best interests of an adult patient unable to consent themselves

      • HoL:

        • No need for a Bolam-plus test - conformity to a reasonable and responsible body of medical opinion suffices

      • Lord Goff (maj):

        • Decisions about the welfare of a mentally incapacitated person are not exclusively within medical expertise and that others might be consulted

          • BUT His words were permissive, not mandatory – it might be good practice to consult, but it was not necessary for doctors to do so – their opinion sufficed.

    • Sidaway v. Royal Bethlem Hospital – followed Bolam

      • Lord Scarman (dis):

        • Doctor has a duty to disclose information about the risks of proposed treatment to the 'prudent patient' standard.

      • Lord Diplock (maj)

        • Patient was prima facie entitled to be told only so much as a responsible body of medical opinion judged prudent.

      • Lord Bridge (maj):

        • May be very limited circumstances where this could be extended a little bit.

    • Blyth and Gold

      • CoA:

        • Preferred Lord Diplock’s approach

        • Failure to give a patient adequate advice on the merits and demerits of proposed treatment

          • was simply an issue relating to breach of duty of care

            • to be judged identically (i.e. in conformity to Bolam) to any other alleged breach of duty

  • Contrast with Pearce

    • Lord Woolf:

      • He cites both Lord Bridge in Sidaway, and Lord Browne-Wilkinson in Bolitho,

        • to support a proposition capable of effecting a radical departure from a 'reasonable doctor' test.

      • The law requires that if there is a significant risk which would affect the judgement of a reasonable patient,

        • then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk,

          • if the information is needed so that the patient can determine for him or herself as to what course she should adopt

• Things to bear in mind

  • Bolam allows for innovative medical practice

    • Without it, doctors might retreat and no longer try out new things which are essential for research and saving lives

      • And instead just tow the orthodox party line.

      • Bolam allows them to be more inventive, provided there are other experienced colleagues who agree with them.

  • Discourages defensive medicine

    • Not quite clear exactly what this is, but essentially the increased threat of litigation means that doctors will potentially tread on eggshells

      • Fearing that new treatments or something they do which is slightly unusual will lead to them being sued

      • Fear of litigation can be a good thing if it introduces better practices – e.g. more polite to patients, better explanations, double checking, note keeping

        • But can also lead to bad consequences – excessive caution, using expensive but unnecessary diagnosis procedures.

• Why Bolithio is an improvement

  • Above considerations are important to bear in mind

    • But what Bolithio does which the current interpretation of Bolam does not, is treat doctor opinion as weighty, but not conclusive, evidence

      • Now judges can scrutinise medical evidence in the same way as they would for other professionals –

        • i.e. common sense and logical analysis, bearing in mind the expert opinion and the reasons advanced for it.

  • Doesn’t Bolithio discourage excessive litigation?

    • Might face an avalanche of litigation if the test was relaxed

    • Currently 13.5 billion set aside for future claims on NHS litigation accounts

      • In 2008/9 were 6000 clinical negligence and 3000 non-clinical claims, with about 29% settled in favour of claimant and 4% won after trial

        • Ended up paying out 769m for clinical negligence compensation

    • Not a compensation culture, but certainly an awful lot of money – therefore need a restrictive test.

    • Me: May be overstating the risk of increased litigation

      • Bolitho speaks of rare cases, and may even help cases settle earlier if it’s clear that the doctor’s opinion won’t always be followed.

      • Brazier: Would like to assume that most medical practice has some kind of logical basis.

Should we move to a system of no-fault liability in medical negligence?

NHS Redress Act 2006 – a bit less than no-fault

• Dealing with claims less than 20,000

  • Essentially, instead of resorting to litigation, the scheme will require the providers and commissioners of hospital services

    • to give a speedy and appropriate response to clinical negligence

  • It works by members of the public reporting problems, which are then reported to the NHS Litigation Authority

    • Who then decides the appropriate remedy –

      • Such as a payment of compensation, investigation, apology or remedial care

• Advantages?

  • Gives an alternative means to patients than using the court,

    • with applicants able to refer any offers made by the scheme to an independent solicitor at no cost to the applicant

      • thus gives some solicitor help to those who might not otherwise be able to afford one

  • Government recognises that costs likely to go up in the short term, and the scheme to be quite expensive – 3.5m to 11.5m a year

    • But deals with small claims quickly w/o lawyers

    • And hopefully more local level allows lessons to be learned and practices reformed more easily, preventing future claims.

• Disadvantages

  • If people still use the courts who already would have done, merely opening the door to more claims from people who would not else be able to afford them

    • Thus costs continuing to go up.

  • And may just be formalising a system which is already there.

How about full no fault?

• The system in New Zealand – compensate both the paralysed patient owing to negligence, and the patient paralysed owing to bad luck in an operation

  • The system in NZ permits compensation to be paid for “treatment injury”

    • And requires no proof of negligence on the part of doctors

    • This covers injuries where they are “not a necessary part, or ordinary consequence, of the treatment

      • Taking into account all the circumstances of the treatment including

        • (i) the person’s underlying health condition at the time of treatment

        • And (ii) the clinical knowledge at the time of treatment

    • This does not cover the normal...