English law permits patients
All too often, English law permits patients legal rights to be defined by the medical profession
“Doctors cannot be judges in their own cause” yet it would seem that the courts have more- or-less allowed the medical profession to control medical litigation. The number of clinical negligence claims being brought against doctors and hospitals has increased significantly, however, Lord Woolf reckons that in England, as little as 17 percent of claims are thought to be successful. It has been suggested that the courts may have been deferential to the medical profession in order to prevent a rush of malpractice claims and to prevent the practice of defensive medicine. As per Mustill LJ.,“medicine is about curing, not litigation”.
In his lecture entitled ‘Are the Courts Excessively Deferential to the Medical Profession?' Lord Woolf is of the belief that the courts did allow the medical profession to direct the outcome of medical litigation in their favour, but that things are now changing and that the courts are now beginning to remove the control from medical professionals and make sure that the judge is the only arbiter. As Woolf states “[t]he over-deferential approach is captured by the phrase ‘Doctor knows best'. The contemporary approach is a more critical approach. It could be said to be that doctor knows best if he acts reasonably and logically and gets his facts right.” Is Woolf, however, being too optimistic and relying too heavily on the judgment made in Bolitho v City and Hackney Health Authority to revolutionise negligence litigation? As will be discussed later, the judgment will likely only be applied in rare cases, and the principle as set in Bolam v Friern Hospital Management Committee is likely to still be applied in the majority, so will the medical profession still have the upper-hand?
Establishing Clinical Negligence
In order to bring about a negligence claim, the plaintiff must establish that the defendant owed him a duty of care, that there was a breach of this duty (the defendant failed to reach the medical standard of care expected of him by law) and that due to that sub-standard care, the plaintiff suffered a physical or psychiatric harm.
The Bolam Test
In 1957, McNair J. addressed the jury in Bolam v Friern Hospital Management Committee, making a statement that was to become extremely important in determining professional negligence, especially within the realms of medicine. Mr Bolam, suffering from mental illness, underwent electroconvulsive therapy (ECT), and was not warned that there was a very small risk of fractures. A relaxant drug was not administered prior to the procedure, nor was he physically restrained during the procedure. Expert medical opinion on whether or not relaxant drugs and/or physical restraints should have been used, and also if it was necessary to inform patients of the risk of fracture differed. In his direction to the jury, McNair J. told the jury that to determine negligence ‘[t]he test is the standard of the ordinary skilled man exercising and professing to have that special skill'.
A 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 round, a doctor is not negligent, if he is acting is accordance with such a practice, merely because there is a body of opinion that takes a contrary view.
At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.
“Bolam...has been used by the courts to abdicate responsibility for defining and enforcing patients' rights.”
Lord Scarman in Maynard v West Midlands Regional Health Authority
...a judge's ‘preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred.
It would seem that Bolam had made it almost impossible for a claimant to be successful. Providing the defendant could find others working in his specialty that would profess to have acted in the same manner then it would be likely that he would not be found liable. This basically left doctors to determine whether or not their actions were negligent rather than the courts. As argued by Lord Irvine,“...Bolam and, in particular, an interpretation of Bolam which appeared to leave the content of a doctor's duty for doctors to decide, occupied centre stage in medical negligence in this country.”
Commonwealth countries such Canada and Australia did not subscribe to the English courts' manner of handling medical litigation. Although they did pick up on elements of the Bolam test, they modified it as whilst the English courts felt it ill-advised to challenge the expert opinions of the medical profession, the judiciary of countries such as Australia believed that the courts were responsible for setting limits on this practice and there were occasions on which these opinions did have to be questioned, and in 1983 in F v R, Chief Justice King of the Supreme Court of South Australia states:
In many cases an approved professional practice as to disclosure will be decisive. But professions may adopt unreasonable practices. Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interests or convenience of members of the profession. The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by the law. A practice as to disclosure approved and adopted by a profession, or section of it may be in many cases the determining consideration as to what is reasonable. ... The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.
Australian courts have refused to allow it to be enough to defend against a negligence claim by finding others practicing in the same field that would attest to acting in a similar manner. They have decided that it is their duty to decide whether practices meet the standard of care that the law should expect from the defendant.
Bolam And The Failure To Inform Of Potential Risks
Sidaway v Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Other Respondents
Mrs Sidaway suffered from recurrent pain in her neck, right shoulder and arms caused by spinal nerve root compression, and underwent surgery in 1974 at Bethlem Royal Hospital. The surgery was performed by a neurosurgeon at the first defendant's hospital and carried an inherent risk of between one and two percent to the spinal column and nerve roots. After the operation, Mrs Sidaway suffered partial paralysis so set about suing the hospital and the executors of the deceased surgeon. She alleged that she had not been warned of the risk of paralysis and would not have had the surgery had she been told, and also that the surgeon had not informed her that the operation was not necessary but an option open to her. Sidaway's case was rejected by the High Court and the Court of Appeal. The case eventually went to the House of Lords despite lacking any evidence to suggest that the surgeon failed to warn Mrs Sidaway of the risks of her surgery, but the Law Lords heard from a body of experts, skilled in neurosurgery, of the recognised risk of serious damage, but who would have also deemed it acceptable to not warn of the risk. The House of Lords held that the surgeon in this case had not been negligent in this case in failing to disclose such a small risk.
In matters of diagnosis and the carrying out of treatment the court is not tempted to put itself in the surgeon's shoes; it has to rely upon and evaluate expert evidence, remembering that it is no part of its task of evaluation to give effect to any preference it may have for one responsible body of professional opinion over another, provided it is satisfied by the expert evidence that both qualify as responsible bodies of medical opinion.
They did hold that there may be occasions in which the patient needed to be told of the risks, Lord Bridge stating “...that disclosure of a particular risk was obviously so necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it”. This supported the conclusion of Sir Donaldson M.R. when Mrs Sidaway's case went through the Court of Appeal:
[The courts] cannot stand idly by if the profession, by an excess of paternalism, denies their patients a real choice. In a word, the law will not permit the medical profession to play God... a judge would be entitled to reject a unanimous medical view if he were satisfied that it was manifestly wrong and that the doctors must have been misdirecting themselves as to their duty in law.
So in Sidaway, we have the Donaldson in the Court of Appeal and Lord Bridge in the House of Lords advocating that it may be necessary for doctors to disclose all risks to their patients regarding treatments, yet in Gold v Haringey Health Authority the Court of Appeal favouring Lord Diplock's judgment in Sidaway which had taken its lead from Bolam.
It is clear from Lord Diplock's speech in Sidaway that a doctor's duty of care in relation to diagnosis, treatment and advice, whether the doctor be a specialist or general practitioner, is not to be dissected into its component parts... [a] judge [is] not free...to form his own view of what warning and information ought to have been given, irrespective of any body of responsible medical opinion to the contrary.
The House of Lords in Sidaway affirmed that a doctor has a “therapeutic privilege” which allows him to not inform the patient of risks that he believes may cause psychological harm. Yet it was in this same judgment that Lord Scarman held:
It would be a strange conclusion if the courts should be led to conclude that our law, which undoubtedly recognises a right in the patient to decide whether he will accept or reject the treatment proposed, should permit the doctors to determine whether and in what circumstances a duty arises requiring the doctor to warn his patient of the risks inherent in the treatment which he proposes.
This allows for defendants in negligence litigation involving the failure to inform of a risk to argue that they were exercising their ‘therapeutic privilege'. The principle behind the therapeutic privilege was not new, however, and was referred to in Bolam:
[Y]ou may well think that when dealing with a mentally sick man and having a strong belief that his only hope of cure is E.C.T. treatment, a doctor cannot be criticized if he does not stress the dangers which he believes to be minimal involved in that treatment.
In order for an appellant to be successful in cases where the negligence resulted after failure to inform of risk, they have to be able to create a good case to suggest that they would never have gone ahead with the treatment had they been fully informed. It is likely that the majority of these cases will fail, such as was in Chester v Afshar.
Miss Chester was suffering from extreme back pain and became a patient of the defendant after being diagnosed with disc protrusions. She underwent surgery for her condition and suffered nerve damage and paralysis subsequently. She claimed the defendant had failed to warn her of these risks, and had she been aware of them, she may have investigation other options before resorting to surgery. Her case ended up in the House of Lords where it failed as it could not be said that had she been warned of the risks that she would not have had the surgery, she just may not have consented on that particular day.
Again, while the English courts choose to follow Bolam in determining whether or not a patient should be informed of risks associated with treatment and subsequent injury constitutes as negligence on the part of the defendant, the courts in Canada and Australia decided to look at it differently. In Canada, Laskin CJC said in Reibl v Hughes:
[T]he scope of the duty of disclosure … is not a question that is to be concluded on the basis of the expert medical evidence alone … What is under consideration here is the patient's right to know what risks are involved in undergoing or forgoing certain surgery or other treatment.
The High Court of Australia followed in Canada's footsteps in the case Rogers v Whitaker,where Gaudron J. stated:
Whether the position is considered from the perspective of the individual patient or from that of the hypothetical prudent patient … there is simply no occasion to consider the practice or practices of medical practitioners in determining what information should be supplied.
Bolitho v City and Hackney Health Authority may prove to be revolutionary in medical malpractice litigation. Patrick Bolitho, a two-year-old, was admitted to St Bartholomew's Hospital suffering from respiratory difficulties. The ward sister contacted the paediatric registrar in charge of Patrick's care, Dr Horn, on two occasions witnessing the child having cyanotic episodes asking for her to attend, but Dr Horn did not show on either occasion nor did her senior house officer come to see the patient. Only half an hour after the second call to Dr Horn, Bolitho suffered a cardiac arrest due to respiratory failure and was revived; however, he suffered serious brain damage. He subsequently died, and the court proceedings were continued by his mother, the administratrix of his estate.
There was no argument that if Dr Horn had attended and intubated (or had delegated the task to her junior) that respiratory failure would not have occurred, and therefore there would have been no cardiac arrest and consequent brain damage, and with that Dr Horn admitted negligence in failing to attend Patrick Bolitho. The hospital denied liability though as Dr Horn stated that, even had she attended Bolitho after being contacted on either instance, she would not have intubated him. Bolitho seemed reasonably well before and between these two short-lived cyanotic episodes, and intubation itself was not without risks. The expert witnesses for both sides held wholly opposed views as to whether or not it would have been reasonable on behalf of the defendent to fail to intubate. The judge applied the Bolam test and concluded that the plaintiff's injury was not a result of the defendant's negligence. The Court of Appeal upheld the trial judge's decision. The House of Lords also held that Horn had not breached her duty of care, despite her admitted negligence in her failure to attend the patient. The House of Lords were, in addition, left to decide whether the Bolam test was applicable in establishing causation, and whether or not the Bolam test compelled a judge to allow expert evidence to go unchallenged. Lord Browne-Wilkinson notes:
[T]he court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis...in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice...In the vast majority of cases the fact that distinguishes experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion...But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
In Barnett v Chelsea and Kensington Hospital Management Committee, three night watchmen presented themselves to the defendant's casualty department and saw a nurse after starting to vomit, later discovered to be the result of drinking tea containing arsenic. The doctor in casualty told the nurse to tell the men to visit their own GPs, and never actually saw the men himself. Hours later the three men died of arsenic poisoning. One of the men's widows brought a negligence claim against the hospital. Nield J held that the doctor owed the men a duty of care and had been in breach of that duty by failing to attend the patients.
In my judgment, there was here such a close and direct relationship between the hospital and the watchmen that there was imposed on the hospital a duty of care which they owed to the watchmen. Thus I have no doubt that Dr. Banerjee [was] under a duty to the deceased to exercise that skill and care which is to be expected of persons in such positions acting reasonably...Without doubt Dr. Banerjee should have seen and examined the deceased. His failure to do either cannot be described as an excusable error as has been submitted. It was negligence.
The widow's claim, however, did not succeed. Although it was shown that the doctor had been negligent in not attending, the case failed on grounds of causation. The defendant managed to show that even had Dr. Banerjee examined any of the men, it would have been likely their symptoms would have been attributed to food poisoning and the men would not have received the antidote, crucial to save their lives, before they died anyway.
Wilsher v Essex Area Health Authority
If the unit had not been there, the plaintiff would probably have died. The doctors and nurses worked all kinds of hours to look after the baby. They safely brought it through the perilous shoals of its early life. For all that we know, they far surpassed on numerous occasions the standard of reasonable care. Yet it is said that for one lapse they (and not just their employers) are to be held liable in damages. Nobody could criticise the mother for doing her best to secure her son's financial future. But has not the law taken a wrong turning if an action of this kind is to succeed?
In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter. (Bolitho)
J. Coggon, ‘Best Interests, Public Interest, and the Power of the Medical Profession' (2008) 16 Health Care Analysis 219-232.
P. Giliker, ‘The Expansion of Bolam: For the Benefit of Doctor or Patient?' (1998-1999) 9 King's College Law Journal 109-111.
M. Hogg, ‘Duties of Care, Causation, and the Implications of Chester v Afshar' (2004-2005) 9 Edinburgh Law Review 156-167.
K. Mason & D. Brodie, ‘Bolam, Bolam - Wherefore Art Thou Bolam?' (2004-2005) 9 Edinburgh Law Review 298-306.
J. Montgomery, ‘Medicine, Accountability, and Professionalism', (1989) 16(3) Journal of Law and Society 319-339.
J. Montgomery, ‘Law and the Demoralisation of Medicine', (2006) 26(2) Legal Studies 185-210.
M. Quigley, ‘Best Interests, the Power of the Medical Profession, and the Power of the Judiciary' (2008) 16 Health Care Analysis 233-239.