Hospital Management Committee - Essay Example

Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 Background of the case: The above cited case relates to the professed standard of care needed to be taken by healthcare professionals in the exercise of carrying out medical interventions and treatment for patients. “The normal standard was laid down in Bolam -v- Friern Hospital Management Committee (1957) by McNair J. The test is the standard of the ordinary skilled man exercising and professing to have that skill” (Atkinson Mr. John Hector Bolam was a patient suffering from acute depressions. His attending doctor at the hospital subjected him to electro-convulsive therapy (ECT). During the process of subjecting him to this treatment, physical control and restraints proved futile, as a result of which the patient developed pelvic injuries. Subsequently, he sued on the grounds that his prior knowledge and consent were not invited before the course of ECT was administered on him. Had he known about this line of treatment, perhaps, he would not have consented to it. Thus the attending doctor and the hospital had been negligent in the carrying out of required degree of care and consent in his treatment. (Samanta & Samanta 2003). The learned judge, McNair J observed “[a doctor] is not guilty of negligence if he has acted in accordance with the 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.” (Samanta & Samanta. 2003). The case was turned down on the ground that what the judge termed a misadventure could not be treated as negligence. (Bolam v. Friern Hospital Management Committee. 1957). The learned judge had, through the decision in this case, established, perhaps unwittingly, a new precedent in English House of Lords case history, which came down the years to be named and referred as the Bolam Test. This test has been the bedrock on which legal decision in English Courts would be influenced in later years in favour of the medical profession and its alleged erring or non-erring practitioners, for nearly four decades after its first enunciation. This pervading influence of the Bolam Test has been felt in several cases, and it was only after Justice Wilkinson gave his famous ruling in the Bolitho case in 1997, that the onus of negligence and its premises shifted from the legal premises of medical testimonials and evidences, to the basis of application of reasonableness, sound judgment, pragmatism and critical analysis of facts of the case. Defects in the Bolam approach: The essential ingredient for establishing negligence in the medical profession has been that the attending doctor had failed to provide the degree of professional care, or accepted standard of attention, to the plaintiff patient. As a result of this, the patient suffered losses or injuries, which could be directly caused by the lack of standard in care, provided by the doctor. Therefore, there are two elements in it. Firstly, there is established negligence and secondly, it arouse only directly due to the negligence attributable to the doctor. But this hypothesis is not without a rider. It has been established that where a responsible body of similar professionals or expert health care consultants opine that disputed medical procedure was right, or that the non- administration of medical procedure was, according to them, correct, the Bolan Test is applied and cause of negligence is squashed. Thus an endorsement of a recognized and responsible body of medical practitioners is enough to declaim the cause of negligence, and refute the plaintiff’s claim that standard of care had not been followed, resulting in health losses, etc. Over the years, this Bolam Test has been applied to save erring doctors of the consequences of their actions or inactions, by a mere endorsement from a body of other medical practitioners, that under similar circumstances, they would have resorted to similar practices. This has assumed a high degree of significance, since over the years, the medical interventions carried out by the medical fraternity, have become more questionable and susceptible to litigation and yet, on more occasions than not, the application of Bolam Test would grant them the benefit of doubt Valid Criticism of the Bolam Test The primary defect in the Bolam Test lies in the fact that it is heavily dependent on medical theories and evidences. Therefore, the test would finally boil down, not to whether the doctor’s action is admissible in law or not, but to whether it has the endorsement of a body of responsible medical practitioners, who may testify that they would have carried out precisely the similar line of treatment, under similar circumstances. “It was decided in this medical negligence case that there is no breach of standard of care if a responsible body of similar professionals support the practice that caused the injury.” (The role of the Bolan Test in medical negligence claim. 2002). There needs to be a fine legal line of differentiation in what has been done vis-à-vis what needed or ought to have been done. During the course of a medical intervention an attending physician is perforce to act in the best interests of his patients and in keeping with the doctor: patient relationship. A doctor may be able to justify his medical decision and may also be able to garner public support for it. But what is even more critical is the fact as to whether he has done what ought or reasonably well, should have been done to protect the life and welfare of his patient. It is often that most actions of doctors fall short of adequate degree of care, even amounting to negligence when seen in the context of what ought to have been done. In other words, instead of the attending doctor or HCP justifying his actions, or proving that he was not negligent, what needs to be proved in full is that maximum degree of care, as required by a qualified and practicing health care professional, and needed to be rendered taking into account his professional education, training and experience has been carried out on the patient and the outcome has been outside the control of the attending doctor. Further, it needs to be said that the ruling whether the alleged negligence has taken place has to established by the Court of Law and not by the body of health care specialists, however exalted their position may seem to be. The Court may take, into consideration, among other aspects, the evidences placed by the body of professionals, but this need not be the only basis of decision making, as has been the practice in the application of the Bolam test. In the decided case law Sidaways v. Board of Governors of the Bethlehem Royal Hospital (1959) the learned judge observed: “Whether non-disclosure in a particular case should be considered as a breach of the Doctor’s duty of care is an issue decided prevailing on the basis of expert medical evidence, applying the Bolam Test” Views of the writer Over the decades of its use, the Bolam Test has pervaded almost all aspects of medical jurisprudence and has influences patient aspects such as diagnosis, line of treatment ethical considerations and a host of other relevant factors, sometimes, even impervious to the rights and privileges of the patient. The Bolam Test has failed to observe aspects of Human Rights of patients and ethical considerations that need to influence the course of patient treatment. However, this is not without well designed logical sense.. The application of medical treatment are subject to various interpretations by different schools of medical practice, and the choice of whether to adopt a particular interventionist strategy or not, is often in deference to the wishes of the attending physician. Again, the right to pick the best available choice from an array of alternatives is also the prerogative of the attending doctors. The fact that choice of treatment picked up one method, to the exclusion of others, does not by itself, lend cause to negligence. This is because health care professional have the options of choosing the required option, to the exclusion of others, and this, prima facie, is not tantamount to any negligence in the eyes of law. But could be interpreted to be the application of medical expertise or knowledge. However, the main areas of deficiencies of the Bolam Test has been its overdependence on medical evidences to the exclusion of other equally relevant factors in medical jurisprudence like reasonable degree of care, evaluation of options, weighing risk with benefits and its analysis and interpretations. It is often the case that the attending doctor may have multiple choices in terms of the medical strategies to be used. He needs to furnish full details about the proposed intervention and seek consent before engaging in any strategy. If the patient does not wish to undergo further treatment, it should not be enforced on him; or if he prefers a particular medical strategy, all efforts need to be provided for its use on the patient, considering the ethical aspects also. It is necessary that the attending doctors take necessary interventions based upon the total evaluation of all relevant facts, exercise care, caution and circumspection in all cases regarding the medical intervention strategies and also, most importantly, weigh the probable risks and benefits attached to the proposed strategy. All these factors, which were delineated in the Bolitho case (1997), shall be presently dealt with. However, it could be said that only if the attending doctor, as a professional well equipped to deal patient emergencies, exercises all the needed competence and skill levels which is needed at his level of professional expertise, could he be absolved of all liability, direct or indirect, in the event of losses, or consequent health hazards being resultant to his patients. Bolitho v.City and Hackney Health Authority (1997) 1 WCR 1151 CBW In the earlier discussions, the aspects of standard of care had been dealt with and how medical professionals were able to evade the dragnet of the law by invoking the Bolam Test. However, perceptible changes in the interpretation of the law governing medical negligence were forthcoming after the decision in this case. Background of the case: A two year old boy, Patrick Bolitho was admitted into Hospital on 11/1//1984, with breathing difficulties. The attending Pediatric Registrar, Dr. Janet Horn, was aware of his critical and grave condition but did not attend to him during his critical stage, nor did she make available any medical expert to attend to him. On 17/1/1984 the little boy suffered a cardiac arrest caused by respiratory failure, but although he was revived, severe brain damage set in which resulted in his demise. (Judgement Bolitho v.City and Hackney Health Authority. 1997). It was initially found that the attending Pediatric Registrar was negligent of causing his death, although she was apprised of the fact that he was gravely ill. She was in breach of professional duties by not responding to his medical needs. It was argued that the Cardiac arrest would not have occurred if suitable intervention, especially incubation, would have been rendered to Patrick in the first place. Dr Horn evidenced that even if she had been present for his treatment, she would not have carried out incubation for the child because of its attendant risks. Applying Bolam test, it was held that since the decision not to intubate was in consensus with views taken by body of medical experts, Dr. Horn’s actions, or inactions, were not tantamount to negligence and lowered standard of care. However, the judge also passed the following ruling in this case: In the Judge, Lord Browne-Wilkinson’s opinion: “The 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 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.” (Judgement Bolitho v.City and Hackney Health Authority. 1997). In this case it could be presumed that Dr Horn’s inability to attend to the child has been one of the precipitating causes of mortality, although she argued that she would not have preferred intubations, and according to medical experts, it was the only medical solution available under the circumstances. Her negligence could be seen as a contributory factor that accelerated the cause of action in the patient, i.e. death. Although there were no substantiating grounds linking the cause of death of the patient with the fact that the attending paedriatist was unavailable, despite having knowledge of the facts, the central issue was whether the non-intervention of the attending paedriatist was tantamount to negligence. This, however, could not be conclusively proved, to the Court. by the plaintiffs, Bolitho Impact of Bolitho on Bolan: However, without prejudice to the final ruling, it is not a travesty of the truth to establish that the Bolitho case has ushered in a new dawn in the annals of British Medical jurisprudence. It has introduced significant changes in the Bolan test to include the aspects of degree of reasonableness, choice of alternative therapies and the selection of the best medical intervention that could be used on the patient keeping their best interests in mind. (Bolitho v.City and Hackney Health). It has also become necessary for medical men to pay equal significance not only to medical theories and practices but also factors like degree of rational thinking and consideration of the human aspects that underlie treatment and cure. In this contest it also becomes necessary to quote a case reference in which a plaintiff suffered head injuries after a fall and was taken to hospital for further investigations. However, he was discharged, but upon return his condition worsened. His General Practitioner did not realize the seriousness of his condition. However, later it transpired that he became a victim of paralysis due to intracranial lesion, caused by the fall. The attending doctors defended their action stating that the chances of such occurrences were indeed very rare. However the Court ruled that “the consequences of things going wrong are disastrous to the patient. In such circumstances, it is my view that the only reasonably prudent Course … [would be] to readmit for further testing and observation “(Marriott v West Midlands Health Authority [1999] Lloyds Rep Med 23.). (Samanta & Samanta 2003). This decision was based on the risk analysis laid down in the Bolitho case. It may further be said that On the other hand, instances involving actual negligence, mistake, or accidents do occur, and, if complainants are to be satisfied and the public interest served, the professional conduct committee cannot avoid the ultimate issue- the question of whether or not the attending physician in such a case fulfilled his legal duty to his patient. (Dogra & Gupta 2005). Conflict of opinion: Post Bolan, the Courts have become wiser in not deciding cases on the basis of medical evidences alone. With the changing times and the need for rendering more specialized and greater degree of logical based treatment, the Courts now consider the justification or basis on which the medical intervention has been carried out whether it is in line with the best possible care that could be generated under the circumstances, given the different options and competing alternatives given to the health care professional in tandem with the patients. The moral grounds on which the Bolan test could be defended has given way to a new frame of judicial thinking which entails the justification of the application of the Bolitho thinking keeping in view a balanced outlook of the entire jurisprudential perspective without losing sight of the ultimate aim of imparting justice. Bibliography ATKINSON, Daniel. (1999). Reasonable skill and care. [online]. Atkinson law. Last accessed 5 November 2007 at: http://www.atkinsonlaw.com/cases/CasesArticles/Articles/Design.htm Bolam v. Friern Hospital Management Committee. (1957). 1 WLR 582: Queen’s Bench Division. Judgment 1. Last accessed 5 November 2007 at: http://oxcheps.new.ox.ac.uk/casebook/Resources/BOLAMV_1%20DOC.pdf Bolitho v.City and Hackney Health. Duty of Care & Negligence. [online]. Freedom to choose. Last accessed 5 November 2007 at: http://www.freedomtocare.org/page49.htm#Bolitho%20case DOGRA T. D. & GUPTA, Sudhir (2005). Journal of the Academy of Hospital Administration: Medico-Legal Aspect of Health Care Delivery. The Grievance Committee & Medical Professional Liability. [online]. Ind Medica. Last accessed 5 November 2007 at: http://www.indmedica.com/journals.php?journalid=6&issueid=72&articleid=910&actio=article Judgment Bolitho v.City and Hackney Health Authority. (1997). 1 WCR 1151 CBW. [online]. Business. Last accessed 5 November 2007 at: http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd971113/boli02.htm SAMANTA, Ash & SAMANTA, Jo (2003). Legal standard of care: a shift from the traditional Bolam. Clinical Negligence. Volume 3 No. 5. Last accessed 5 November 2007 at: http://www.psychiatricrights.org/Countries/UK/BolamTest2003.pdf The role of the Bolan Test in medical negligence claim. (2002). [online].You Claim. Last accessed 5 November 2007 at: http://www.youclaim.co.uk/Medical-negligence-the-Bolam-test.htm Read More