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The History of Medical Negligence Law

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    What does a patient need to prove to bring a medical negligence claim and how medical negligence law has developed over time

    By Joachim Stanley

In medical negligence litigation, each claimant must establish three things:

1. That the defendant medical professional owed him/her a duty of care;
2. That by its actions and/or omissions, the defendant hospital/GP breached that duty of care;
3. That otherwise avoidable harm stems from that.

As a patient the first element, that the defendant owed the patient a duty of care, is usually easily established.

There is then an established legal test to see whether the defendant breached its duty of care to the claimant – which medical negligence solicitors refer to as “the Bolam Test”.  The test is named after an older medical negligence case, the facts of which graphically illustrate the stringency of medical negligence law that still applies to the present date.

THE FACTS OF BOLAM

Mr Bolam was a psychiatric patient who was given electroconvulsive therapy (ECT).   ECT is a controversial (because violent) treatment, and Mr Bolam was unlucky enough to suffer multiple fractures as a consequence of it.   Mr Bolam was understandably upset, and sued the  hospital’s management committee.   The case was heard in 1957.  It was found that, whilst there was no doubt that Mr Bolam’s injuries had been caused by the ECT, his doctors had not acted negligently in treating him with this therapy.  The Court held that, if a doctor reaches the standard of a responsible body of medical opinion, he is not negligent.  Some doctors working in the field at the relevant time would have agreed with the decision to give ECT to Mr Bolam, and consequently his own doctors were not negligent in treating him with this.

Although subsequent cases have clarified its scope, the Bolam test remains central to determining whether clinical negligence occurred.

It is not generally realised that the Court’s judgment in this case was not without precedent.  Unusually, that precedent stems not from an actual courtroom, but literature.

In Middlemarch (1871 – 2), George Eliot describes the practice of Dr Lydgate, a young and ambitious doctor who trained in Paris (a cutting-edge centre of medicine at the time the novel is set).   Lydgate attracts the dislike of the other medical practitioners in Middlemarch, all of whom consider him to be an upstart, whose new-fangled ideas are at best unproven and at worst dangerous.

In the course of the novel, Lydgate’s benefactor, Mr Bulstrode, is blackmailed by Raffles, a man with a drink problem.  Matters come to a head when Raffles falls ill with delirium tremens – then as now a medical emergency.  Raffles is treated by Lydgate, who leaves Bulstrode to look after him, giving instructions that he should be given small doses of opium and no alcohol (the standard treatment for delirium tremens at the time was of “allowing alcohol and persistently administering large doses of opium”).  Instead, Bulstrode allows his staff the keys to his liquor cabinet, and Raffles is given strong drink: he dies soon afterwards.

Lydgate is judged – and exonerated – by reference to existing medical standards.  Two physicians reviewed the facts: because they “stood undisturbedly on the old paths in relation to this disease … they could see nothing … which could be transformed into a positive ground of suspicion”.  This is despite the fact that Lydgate did not agree with these standards and suggested a different treatment strategy.

THE PRESENT DAY

Whilst media stories about compensation culture are all too familiar, the reality is very different.    Claimants still face the same long-standing and stringent tests in order to prove that they have a valid medical negligence claim.  It is vital that clinical negligence claimants seek advice from a suitably specialised and experienced medical negligence solicitor in order to maximise their chances of success and ensure that every aspect of the medical treatment is investigated and assessed against the correct standard of care. If you are concerned you have suffered injury due to medical negligence, please contact us today and we will be happy to advise you.

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