Bolam & Bolitho tests — How clinical negligence is assessed

If you have been treated unfairly or negligently by a doctor or other health care professional, you may feel that you are entitled to justice and possibly financial compensation. You wouldn’t be alone. It is for this reason that methods and procedures for assessing the impact of clinical negligence and liability have developed. Two such methods are the Bolam and Bolitho tests.

The Bolam test

The Bolam test was first recognised in the case of Bolam vs Friern Hospital Management Committee. It states that if a doctor has acted according to proper and accepted practice, he is not guilty of medical negligence. That is to say that if there is a group which is of the opinion that the practice is wrong, it does not automatically mean that the doctor was acting negligently. It also states that the standards should be judged by one’s own peers — not the longest-serving doctor or the senior consultant, but those who work in the same field and are peers of the doctor in question. Likewise, the standard to which the case should be compared is that of an ordinary and competent doctor acting in everyday practice — not that of an idealised worldview or the ‘perfect’ doctor.

The Bolitho test

The Bolitho test, on the other hand, was first decided in the House of Lords. Put simply, it states that the defence could not be considered reasonable if the body of doctors or supporting witnesses were not capable of withstanding logical analysis. That is to say that simply providing a defence is not quite good enough, but that the defence and its body of opinion must be reasonable and responsible. A case which is defended based on a practice which is not reasonable or logical thus cannot be defended.

Other tests and standards are also taken into account, such as those standardised by the Gregg vs Scott case, which was brought before the House of Lords in 2002. This states that negligence can only be proven in the case of a missed diagnosis if the chance of survival would have been over 50% had the illness been diagnosed. For example, if a case of cancer was not found, but the patient would have only had a 35% chance of survival anyway, negligence would not be found. If the patient would’ve had a 75% chance of survival had the diagnosis been made and treatment proceeded, then it would be decided that the doctor had been negligent.

These are just a couple of the ways in which clinical negligence claims are assessed, based on previous cases and standards which have developed over the years. If you think you might have a claim for clinical negligence, you should speak to a specialist solicitor in order to seek further advice on the matter.

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