Clinical Negligence: Is Bolam Still Relevant?

Abstract

Historically medical profession is regarded as noble, ancient and learned; hence those that practice the profession cut a respectable presence and are well received. Medicine straddles both science and art. Its science is inexact and the creativity of its art is still evolving. Like any other profession, errors of judgment do occur but unlike most other professions such judgment could lead to enormous human suffering and even fatality. The law of negligence do apply to medicine but the interpretation of such negligence and causation of damages could often be complex and complicated. In adjudicating cases in medicine, the historical backdrop of medicine, its influential role in societies and sometimes the covert views held by juries and latterly by judges that the profession should not be driven into a defensive medicine tilt the balance in favour of defendant. This paper will review the paradigm shift in clinical negligence and the reluctance by judges to abandon Bolam due to deferential attitude towards medical opinion. It will also address in detail the Bolam principle, Bolitho and post Bolitho era with reference to standards of care and causation.