The tests of liability - Bolam and Bolitho

The Bolam Test

This was recognised in the classic direction of McNair J. to a jury in Bolam v. Friern Hospital Management Committee.

• A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper and responsible by a responsible body of medical men skilled in that particular art. Putting it the other way around, a doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion which takes the contrary view.
• The implications of this for those in primary care are that the standard against which one is judged is that of one's own peers - not that of the wisest and most prudent doctor who exists and not that of a hospital consultant who may carelessly venture opinion as to the management in general practice. By the same principal, the persons who give evidence to the Court about the standards in general practice can only be general practitioners who were practising at the time of the case.
• The standard to be applied is not that of a most astute doctor or necessarily that of a professor of general practice, but that of an ordinary and competent GP acting responsibly.

The Bolitho Test

In the case of Bolitho, the House of Lords decided in effect that, if the management by a body of responsible doctors was not demonstrably reasonable, it would not necessarily constitute a defence. If professional opinion called in support of a defence case was not capable of withstanding logical analysis, then the court would be entitled to hold that the body of opinion was not reasonable or responsible. More simply put - you cannot defend a case on the basis of a current practice that is not reasonable or logical.

Loss of a chance

In the case of Gregg v. Scott brought to the House of Lords in 2002, it was established that a patient must prove that a doctor's action, or lack of it, caused the patient to suffer injury and not just the chance of avoiding an injury. In practical terms this means that a doctor failing to diagnose a case of cancer in which a patient has only a 25% chance of survival would not be found negligent. Only if the chance of survival was over 50%, ie a probability of a cure rather than a chance of a cure, would negligence be found.

Civil Procedure Rules

The rules by which civil cases are conducted are the Civil Procedure Rules (CPRs) and doctors giving evidence as expert witnesses have to follow Part 35 of those rules in the submission of medical evidence.
The most important rule here is that "experts" have to understand that they are there to advise the court and not to take the side of the party who is paying their fees. They have to remain impartial and should not, for instance, enter into fees being paid conditional to the outcome of a case.
These rules apply strictly in England and Wales but not in Scotland or Northern Ireland.

Reports in legal matters

Any doctor submitting opinion that might be used in a court would be advised to end the opinion with the statement: "I confirm that insofar as the facts stated in my report are within my own knowledge, I have made clear they are and I believe them to be true and the opinions I have expressed represent my true and complete professional opinion."

The process of litigation

The CPRs have to be adhered to by the lawyers:

• Once a claim is being made, a "letter of claim" has to be sent. There are then several weeks allowed in order to gather information and to prepare a defence and respond to the letter of claim.
• If the Claimant wishes to proceed further they then need to issue proceedings stating "particulars of claim" and "particulars of negligence".
• The Defence then issues a formal defence and any statements to support that defence.
• Experts from both sides will have prepared reports and at some stage the information will be exchanged. If the case continues, the Court will order a meeting of experts to try to define the areas of disagreement. Finally, only as last resort, will it come to trial.

The process is prolonged and painful for all parties so is best avoided.

Limitation

A case must be brought within three years of knowledge of harm suffered - so, if a patient thinks they have received negligent treatment today, they have 36 months in which to file a claim. Exceptions to this rule are:

• At the time of the injury the claimant was a child (under the age of 18) - no time limit.
• At the time of the injury the claimant was mentally ill - limitation period starts from the time of their recovery.
• At the Court's discretion - the judge can decide that a case which is "out of time" can proceed.

Funding

Until recent years the vast majority of clinical negligence cases were funded by the tax payer through legal aid (the Legal Services Commission). Unless the patient is very poor they are now unlikely to receive legal aid. Increasingly, the cost of civil litigation is funded by conditional fee agreements with solicitors ("no win no fee") or "after-the-event" insurance. This is insurance taken out by the patient to pay legal expenses if they lose the case. Legal expense insurance also often comes as part of a home insurance policy. These changes generally mean it is more difficult to bring poor cases against doctors. On the other hand, they do reflect an increasingly litigious society and one in which doctors can be tempted to practice defensive medicine.

Twelve tips to avoid litigation and survive mentally

• Make good contemporaneous notes.
• Record all patient contacts.
• Record all DNAs.
• Always give and record follow-up advice.
• Detect and act upon abnormal results.
• Choose computer software that encourages good records.
• Give greatest weight to the more serious diagnosis.
• Litigation harms doctor and patient alike.
• Some patients just want an apology, which can go a long way - but, they can still sue.^[1]
• Complaints' response letters need to be written extremely carefully.
• Consult your medical insurance company - they are the experts.
• Remember, we all make mistakes; that's why we pay insurance.