From Bolam to Montgomery – the changing definition of clinical negligence

11 Jul 2019

In this article we discuss the definition of clinical negligence, explaining the significance of the Bolam Test and the subsequent case law that now provides the framework for clinical negligence litigation.

The inherent duty of care a medical professional has for their patients is well established. However, to show clinical negligence has occurred, it must be exhibited that the defendant has failed to provide a standard of care expected. Accordingly, it is clear that a threshold of this standard of care must be established in order to objectively assess if medical negligence has occurred.

The Bolam Test has formed the backdrop to all clinical negligence cases since 1957, providing a cornerstone for the defence of these claims. The origin of the Bolam Testwas from the ruling by McNair J, in the seminal case of Bolam v Friern H.C.C[1]., when he attempted to objectively quantify the expected and required standard of care. In the ruling of the Bolam case, McNair J said:

The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary man exercising that particular art.”

The ruling also stated:

“that he 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 round, 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.”

The ruling was considered controversial. In order to defend an action of negligence successfully, the medical professional effectively had to produce an expert that agreed with their actions and treatment modality. In the following years, judges were directed by the House of Lords that they were not in a position to choose between the views of medical experts, and the effect of this direction further enshrined any medical expert evidence that agreed with the defendant regardless of any opinion to the contrary.

During the 1980s and 1990s, the definition of the expected standard of care was evolving and published guidelines like National Institute for Health and Care Excellence (NICE) were making it easier for the judiciary and other lay people to understand and rationalise expected standards of care.

In the case of Sidaway v Board of Governors of Bethlehem Hospital[2], the defendant was found not negligent for failing to advise the claimant of a very low risk (1-2%). Nevertheless, the judgement by Lord Scarman, stated that the Bolam Testshould not apply to the issue of informed consent and that the doctor should have a duty to inform the patient of all risks of the procedure. This was the first judgment to recognise that a patient must be advised of all risks in order to make an informed decision.

Another example of the faltering foundations on which the Bolam Teststood, was when the standard of care itself was challenged as in the case of Hucks v. Cole[3].In failing to follow up a course of tetracycline with a course of penicillin in a sepsis patient, Sachs LJ ruled that the standard of care provided by the doctor did not stand up to analysis and was found to be out-of-date despite a “body of medical men” still advocating and practicing that treatment approach.

In the 1997 case of Bolitho v City and Hackney H.A[4], different experts gave different opinions as to whether the doctor should have attended and if the patient should have been intubated. Although the doctor was not found to have been negligent by not attending the patient in the case, bydemonstrating that, “the professional opinion was not capable of withstanding logical analysis”, the judge would be entitled to hold that the body of opinion was not reasonable or responsible, a principle element of the Bolam Test.

In recent times, the Bolam Test has been effectively moderatedby the Supreme Court ruling following the Montgomery case. When Nadine Montgomery’s baby was born with severe disabilities due to the complication of shoulder dystocia during the delivery, her obstetrician did not disclose a 9-10% risk of this prior to the delivery. The case of negligence against the obstetrician failed in the Scottish courts in 2010[5],,however, in 2015[6]the Supreme Court pronounced that a doctor’s duty is;

to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

If the informed consent process has not been performed properly, it can then be argued that the subsequent treatment provided was not of a standard or suitability for that patient.

Where once a successful claim against a medical professional for negligence was an extremely difficult and unlikely prospect, we are in a new era of clinical negligence in which the pendulum has swung back the other way. Gone are the assumptions based around whether a ‘body of medical men’ would have acted in the same way. For the legal profession, this means that clinical negligence cases now require evidence that must stand up to scrutiny and have a logical basis. For the medical profession, they face the arguably harder task of assessing a patient’s ability to understand risk, significance and impact and gaining informed consent within a busy clinical setting.

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[1]1957] 2 All ER 118

[2][1984] 1 All ER 1018

[3][1993] 4 Med. L.R. 393

[4][1997] 4 All ER 771

[5]M’s Guardian v Lanarkshire Health Board [2010] CSOH 104

[6]Montgomery v Lanarkshire Health Board [2015] UKSC 11