3.4 The standard of care appropriate to experts and professionals
3.4.4 The Bolam principle and professionals generally
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3.4 STANDARD OF CARE FOR PROFESSIONALS
Level of expertise
Of course the standard will not necessarily reduce because of the lack of expertise of the doctor. The standard is that appropriate to the doctor or professional exercising and professing to possess the skill in question. It is not, therefore, possible to argue that the standard is reduced because the defendant lacks experience. So the junior doctor must exercise the same degree of skill as the experienced doctor.
CASE EXAMPLE
Wilsher v Essex Area Health Authority [1988] 1 All ER 871
A baby was born prematurely and with an oxygen deficiency. A junior doctor then adminis- tered excess oxygen by mistake. The junior doctor inserted a catheter in an artery rather than a vein and a registrar failed to spot the mistake. The baby was later found to be nearly blind.
A possible cause of the blindness was the excess oxygen. The House of Lords rejected the health authority’s argument that the standard of care expected should be reduced because it was a junior doctor. Accepting such an argument would then mean that the care a patient was entitled to would depend on the experience of the doctor who treated them. This was unacceptable and negligence was held to have occurred in the case.
While the same standard of skill is expected of the doctor (professional) regardless of his level of experience, in circumstances where the defendant lacks the resources that might generally be available the court will recognise that the same standard of care cannot be expected. However, this is recognition of the resource implications.
CASE EXAMPLE
Knight v Home Office [1990] 3 All ER 237
A prisoner had committed suicide while in a prison hospital. In NHS hospitals there would be a general duty of care to protect suicide risks from harm. The court recognised that because of the greater difficulty of supervising prisoners who might attempt suicide and the lack of resources available to deal with the problem, the same standard of care could not be expected of the prison doctors.
However, this principle may depend on the type of care in question. For instance a prisoner might expect the same standard of obstetric care as would generally be avail- able (see Brooks v Home Office [1999] 2 FLR 33).
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NEGLIGENCE: BREACH OF DUTY
CASE EXAMPLE
Luxmoore- May v Messenger May and Baverstock [1990] 1 All ER 1067
Auctioneers sold paintings at auction for £840. Some months later the paintings were then resold for £88,000. It was alleged that the auctioneers were negligent in failing to recognise that the paintings were the work of a famous artist. The Court of Appeal held that the auc- tioneers should be judged according to the standards of a competent body of opinion skilled in the profession of the auctioneers. In the event they were not negligent because it was shown that there could be divergence of opinion on the origins of the paintings.
The Bolam test may in any case apply even though the defendant lacks the appropriate professional qualifications and is not applying the same reasoning that a professional would apply.
CASE EXAMPLE
Adams and another v Rhymney Valley District Council, The Times, 11 August 2000, CA
The defendant council fitted double- glazed windows in the claimant’s council flat. The windows had removable keys and the council did not fit smoke alarms in the flat. The keys were not kept in the windows. During a fire one of the claimants was badly injured breaking the windows trying to get out and three of the claimant’s children died in the fire. The trial judge rejected the claim on the basis that the council had exercised the skill of a competent window designer in fitting windows with removable keys. The Court of Appeal dismissed the appeal and rejected the argument that Bolam had been wrongly applied. Even though the council had not consulted the police or the fire brigade they had not produced a negligent design for the windows.
The standard expected of the professional is that of a competent body of professional opinion, not of professional opinion generally. So that it is possible for the practice of the professional in question to be accepted in fact by only a minority of professionals.
CASE EXAMPLE
Defreitas v O’Brien and Connolly [1995] 6 Med LR 108
A doctor specialising in spinal surgery considered an intricate exploratory operation necessary.
The argument that there was negligence because as it was shown only 11 out of over 1,000 surgeons who regularly performed the operation would have operated in this case was rejected. The Court of Appeal held that the number involved was capable of being seen as a competent body of medical opinion in the circumstances.
This might include even unorthodox or unusual practices.
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3.4 STANDARD OF CARE FOR PROFESSIONALS
CASE EXAMPLE
Shakoor v Situ (t/a Eternal Health Co) [2001] 1 WLR 410
The claimant, who suffered from a skin condition, went to a Chinese herbalist who prescribed a remedy. The claimant later died of acute liver failure that was found to be a rare and unpredict- able reaction to the remedy. Shakoor’s widow brought proceedings alleging negligence in pre- scribing the remedy, or alternatively, in failing to provide warning of the risks. The court held that it was necessary to consider the standard of care of a practitioner of alternative medicine. It was implied that (1) he was presenting himself as competent to practice within the system of law and medicine under which his standard of care would be judged; (2) he knew, rather than believed, that the remedy was not harmful; and (3) if a patient reacted adversely to the remedy and as a result sought orthodox medical help then this would be discussed in an orthodox medical journal.
In the instant case, the actions of the herbalist were consistent with the standard of care appropri- ate to traditional Chinese herbal medicine in accordance with established requirements. So there was no breach of duty.
Common practice among a profession is often cited as indicating that the practice is acceptable and not negligent. There are of course some practices that can be seen as neg- ligent regardless of whether they are commonly carried out or not.
CASE EXAMPLE
Re Herald of Free Enterprise, Independent, 18 December 1987
It was argued that it was standard practice for the bow doors of roll- on roll- off ferries to be left open on leaving ports. It was still, however, seen as being a dangerous practice and neg- ligent on the part of the master of the ferry.
One final aspect of the standard of care expected of professionals is that they should keep reasonably abreast of changes and developments in their profession. They would not, however, be expected to be immediately aware of all new ideas.
CASE EXAMPLE
Crawford v Board of Governors of Charing Cross Hospital, The Times, 8 December 1983
Here a patient suffered brachial palsy following an operation. It was argued that this was due to the position of his arm during a blood transfusion and that the anaesthetist should have been aware of the risk because of a recent article in The Lancet, a journal for doctors. The court rejected the argument. There was no negligence because the reasonable doctor cannot be expected to keep up with every new development.
However, it is important that where guidelines are issued by government or by the pro- fessional bodies governing the professions that indicate best practice, then professionals should act according to those guidelines.
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NEGLIGENCE: BREACH OF DUTY
CASE EXAMPLE
Thomson v James and Others [1996] 31 BMLR 1
A GP failed to follow government guidelines in advising parents on vaccinations for rubella, measles and mumps. A child was then not vaccinated following the advice of the GP and contracted first measles and later meningitis and was brain damaged as a result. The doctor was negligent in failing to issue proper advice.
ACTIVITY
Quick quiz
Using Bolam criteria in each of the following situations consider whether or not the doctor defendant is likely to have breached his duty of care, giving reasons for your answers.
1. A patient has suffered paralysis when the doctor carried out a treatment which on statistical evidence available to the court is only generally carried out by 11 out of 1,000 doctors, although the 11 contain many very experienced and well- respected doctors.
2. A patient has suffered paralysis when a doctor carried out experimental treatment which has not previously been performed. The doctor is an eminent surgeon.
3. A patient has suffered paralysis when he received what he alleged to be negligent treat- ment and the defence was that the doctor carrying out the treatment was a junior and very inexperienced doctor.
4. A patient has suffered paralysis following an operation carried out by a doctor carrying out a standard procedure and where there were known risks of paralysis. However, the claim- ant is arguing that the doctor was negligent because an article in an American journal in the month the operation was carried out explained a new procedure which tests showed reduced the risk of paralysis to very low proportions.