The classical legal standard of care taught to all budding clinical negligence practitioners is quoted from the judgment of Bolam v Friern HMC [1957] 1 WLR 582: “[The 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… Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”. Further evaluation was recommended by the reporting radiologist. Mr Lewis QC, in dismissing the claim, found that although, on the balance of probabilities, an early biopsy in 2013 would have revealed infection and thus allowed the claimant the opportunity to avoid her subsequent catastrophic illness in February 2014, the criticisms of the defendant had not been proven. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. The Bolitho Test, which resulted from the 1996 court case of Bolitho v City and Hackney HA, is an amendment to the Bolam Test, one of the most important rulings with regard to medical negligence.. If past medical decisions could be rendered 'logical' by future developments, why would the reverse not also be so? One of the issues to be determined by the court was whether the first and second CT scans had been reported in a reasonable manner, and whether it was reasonable not to perform a biopsy to confirm a specific diagnosis when several different diagnoses were considered. The second CT scan, in the face of raised inflammatory markers, objectively reported that there were visible abnormalities but expressed uncertainty over the diagnosis. Between May 2013 and February 2014 the claimant developed a left-sided psoas abscess containing gas and fluid. 1. However, the question of whether the two reporting radiologists had been negligent or not must be determined in accordance with Penney and Muller applying the test of Bolitho, even where to do so would be in conflict with the court’s finding of fact. It ultimately required surgical drainage and multiple surgical interventions; following which, microbiology evidence confirmed actinomyces. But a more realistic question is this: is a doctor negligent by the standards of the day entitled to be lucky? There was a concern that the symptoms were suggestive of pre-term labour. Bolitho v City and Hackney Health Authority [1998] AC 232. The first CT scan reported a mass in the right upper quadrant. The application of Bolam and Bolitho has come under criticism before in the matter of Muller v Kings College Hospital NHS Foundation Trust. The claimant’s case was that following the first and second CT scans, the omental mass seen on imaging should have been biopsied which would have confirmed a diagnosis of actinomycosis. Mr Lewis, once again bound by the appellate courts, concluded that what was visible on the CT scans was essentially a question of fact for the court to determine on the balance of probabilities, with the assistance of witness and expert evidence. 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. Two such methods are the Bolam and Bolitho tests. In noting the distinction, Mr Lewis was reluctantly bound by the decision of Penney v East Kent HA [2000] Lloyds Rep Med 41. This conflicts with the patient’s entitlement to make decisions and created the need for a new … In this case, Lord Browne-Wilkinson set out an exception to the Bolam test – the courts may set aside a body of expert medical opinion when it … The law defines this as a duty to provide care that conforms to the standard reasonably expected of a competent doctor. The problems inherent within the Bolam liability test will then The reporting radiologist advised that its appearance was in keeping with omental infarction rather than malignancy. In an obiter comment, Kerr J indicated that in cases of ‘pure diagnosis’ the Bolam principle should be dispensed with, as no ‘Bolam-appropriate’ issue arises as there is no ‘weighing of risks and benefits, only misreporting which may or may not be negligent. These cases are distinguished from ‘pure diagnosis’ cases such as radiology or histopathology where there is limited scope for any genuine difference of opinion, as a diagnosis based on a scan or histology slide is either right or wrong. The claimant’s 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. That is to say that if there is a group which is of the opinion that the practice is wrong, it does not automatically mean … There was no doubt that the advancing of differential diagnoses or recommendations of further treatment or investigations should be determined in the face of Bolam and Bolitho. Is your business prepared for climate change? The Bolam Test has formed the backdrop to all clinical negligence cases since 1957, providing a cornerstone for the defence of these claims. Applying such a matrix, remote risks with minor consequences will generally be considered immaterial. Although further jurisprudential Bolam challenge is likely in the wake of the Montgomeryruling, there are grounds for re-examining Bolitho, … This was recognised in the classic direction of McNair J. to a jury in Bolam vs Friern Hospital Management Committee. A doctor is not guilty of negligence if he or she has acted in accordance with a practice accepted as proper and responsible by a responsible body of medical practitioners skilled in t… The main source of discontent was the apparent judicial abdication of the power to determine the standard of care required to avoid negligence liability. These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust [2019] Med LR 384. Within his concluding statement, Mr Lewis remarked that while the court determined that a biopsy in 2013 would have confirmed the infection and avoided the claimant's later illness in February 2014, the criticisms of the defendant could not be substantiated by applying the Bolam and Bolitho tests. The effect would be to propel medical compliance with—possibly slavish obedience to—clinical guidelines. Bolitho test A legal test that modified the 1957 Bolam test, which the English courts had been using to determine medical negligence by a doctor or nurse. 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. In Bolitho v City and Hackney Health Authority, 1997, Lord Browne-Wilkinson restricted the boundaries of Bolam, stating Over time, it can result in linked abscesses, pain and inflammation. Between May 2013 and February 2014 the claimant developed a left-sided psoas abscess containing gas and fluid. Home Inadequacies of the Bolam Bolitho standard First, a key criticism of the Bolam-Bolitho standard is the decaying notion of medical paternalism it seeks to perpetuate. 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. Neo HY(1). Whilst a layman may conclude that the doctors acted negligently, a Court is unable to ignore evidence from a professional that is capable of standing up to rational analysis. Doctors owe a duty of care to their patient. Had this been diagnosed, the ensuing deterioration and treatment in February 2014 would have been avoided. West Midlands Regional H.A., Lord Scarman paraphrased the Bolam test as applying “in the realm of diagnosis and treatment” [1984] 1 W.L.R. The case of Brady v Southend University Hospital NHS Foundation Trust [2020] EWHC 158 (QB) examines once again the application of the classic Bolam and Bolitho tests in cases involving elements of both ‘pure diagnosis’ and ‘treatment’. 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). Bolam-Bolitho to Modified-Montgomery—Han

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