Negligence II – Breach of Duty by Professionals (Medical Negligence)

Context & Core Questions

  • Breach of duty by professionals / experts / skilled persons
    • What standard of care is expected?
    • How is the standard judged for medical practitioners in England?
    • Which legal tests determine reasonableness (doctor vs. patient)?

Historical Anchor: The Bolam Era

  • Bolam v Friern Hospital Management Committee [1957] 1\,WLR\,583
    • Facts
    • Plaintiff (Pf) voluntarily admitted to mental hospital; consented to Electro-Convulsive Therapy (ECT).
    • No muscle-relaxant drugs or restraints used → patient fractured bones while convulsing.
    • Claims of negligence
    • Failure to administer relaxant drugs.
    • Failure to restrain patient physically.
    • Failure to warn of risks.
    • Expert evidence
    • Body A: favoured relaxants (reduced fractures, small risk of death).
    • Body B: opposed relaxants (avoid small risk of death; accept small fracture risk).
    • Holding & Principle (“Bolam Test”)
    • No breach: doctor followed one responsible body of medical opinion.
    • Key wording:
      “A medical professional is not negligent if acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that art …”
    • Additional clarifications
    • Standard = ordinary skilled practitioner (need not be the best).
    • Knowledge judged at time of incident, not at trial.
    • Peer-based, court deference to professional opinion.

Consolidation & Immediate Post-Bolam Approvals

  • Whitehouse v Jordan [1981]
  • Maynard v West Midlands RHA [1985]
  • Sidaway v Bethlem Royal Hospital Governors [1985] (extended to advice/consent)
    ➡ House of Lords reaffirmed Bolam across treatment, diagnosis, and (initially) patient advice.

Maynard v West Midlands RHA

  • Competing professional opinions on urgent biopsy prior to lab results.
  • Lord Scarman: Courts may prefer one opinion but that alone ≠ negligence.

Sidaway v Bethlem Royal Hospital

  • Pf paralysed after spinal surgery; argued inadequate risk disclosure.
  • Majority: Bolam governs disclosure.
  • Lord Scarman (dissent): Courts, not doctors, should decide adequacy of risk disclosure → seed for future shift.

Refinement: Logical Scrutiny of Expert Evidence

Bolitho v City & Hackney HA [1998]

  • Child not intubated → death.
  • Experts split 5 vs 3 on negligence.
  • House of Lords: Court not bound by expert body unless opinion is logically defensible.
    • Experts must weigh comparative risks & benefits.
    • Threshold of illogicality is high but real.

The Great Departure on Consent

Montgomery v Lanarkshire HB [2015]\,UKSC\,11

  • Diabetic mother; 9\%-10\% risk of shoulder dystocia.
  • Doctor deemed risk too small to mention; mother would have chosen Caesarean if informed.
  • Supreme Court: Patient entitled to information on material risks & alternatives.
    • Test: Materiality judged by reference to reasonable patient, not responsible doctors.
    • Duty: Take reasonable care to ensure patient is aware of material risks and reasonable alternatives.
Comparison Chart
  • Bolam (Consent) – “Reasonable Doctor”
    • Would a competent doctor disclose?
  • Montgomery – “Reasonable Patient”
    • Given the significance of risk, would a reasonable patient want to know?

Domain-Specific Applications of the Standard

1. Consent / Disclosure

  • Pre-Montgomery → Bolam.
  • Post-Montgomery → Patient-centred material-risk standard.

2. Examination & Diagnosis

  • Still governed by Bolam/Bolitho.
  • Case: Maynard (premature thoracotomy before test results) → no negligence; responsible body supported.

3. Treatment & Clinical Judgment

  • Whitehouse v Jordan
    • Forceps for 25\,\text{minutes} → baby brain damage.
    • HL: No breach; action within accepted practice.
    • Lord Denning: Some errors ≠ negligence; only “glaringly below” standard.

4. Level of Expertise

  • Wilsher v Essex AHA [1988]
    • Junior doctor gave excess oxygen into artery; baby blinded.
    • Standard not lowered for inexperience.
    • Objective test: acts judged against reasonably competent practitioner in that post.

Thematic Insights & Policy Rationales

  • Peer-Deference vs. Judicial Oversight
    • Bolam prioritised professional autonomy; Montgomery re-balances toward patient autonomy.
  • Logic Filter (Bolitho)
    • Prevents rubber-stamping bad science; ensures expert opinion is internally coherent.
  • Ethical Evolution
    • Shift from paternalistic medicine → shared decision-making.
  • Practical Litigation Effects
    • Greater documentation of risk discussions post-Montgomery.
    • Hospitals update consent forms & training.

Quick Reference: Key Numerical & Terminological Points

  • 9\%-10\% risk of shoulder dystocia (Montgomery).
  • 25-minute forceps attempt (Whitehouse).
  • Report citations:
    • [1957] 1\,WLR\,583 (Bolam)
    • [1985] 1\,AER\,635 (Maynard)
    • [1981] 1\,AER\,267 (Whitehouse)
    • [1988] 1\,AER\,871 (Wilsher)

Study Checklist

  • Define Bolam Test; recite exact wording.
  • Contrast Bolam, Bolitho, Montgomery tests.
  • Be able to allocate each case to Consent, Diagnosis, Treatment, Expertise categories.
  • Understand logical scrutiny requirement (Bolitho).
  • Know why junior status offers no defence (Wilsher).
  • Appreciate ethical shift towards patient autonomy; prepare to discuss real-world implications (e.g., informed consent forms, defensive medicine).