Claiming Compensation for Negligence
In order to make a successful clinical negligence claim in English law, the claimant must prove three things: duty of care, breach of duty and that the breach caused the damage.
The ordinary standard of care for negligence is the reasonable man test, established in Blyth v Proprietors of the Birmingham Waterworks (1856). In this case, a water main contained a fire plug, which is a wooden plug designed to allow water to flow through a cast iron tube up to the street if necessary. Due to a severe frost the plug loosened and water flooded the house of the claimant. It was held that the frost was beyond normal expectation, therefore there was nothing the defendants could have done to reasonably prevent the damage, and hence there was no liability.
In clinical negligence however, it is very difficult to hold doctors and other medical professionals to the standard that would be expected of the reasonable man because of the somewhat unusual circumstances, meaning a different level of care should be exercised. The standard of care in a given situation is a matter of law for the judge to decide, whereas the question of whether or not the defendant has fallen below this standard is a question of fact for the jury.
In order to conceive a fairer test of reasonability, professionals are now compared to other people exercising the same skill, which therefore includes doctors and subsequently clinical negligence. The Bolam test was established in the case of Bolam v Frien Hospital Management Committee (1957) in which the claimant suffered depression and was admitted to the hospital to undergo electro-convulsive therapy. However, the doctor providing the treatment failed to provide either relaxants or any form of restraint, therefore the patient had a muscular spasm and consequently suffered a fractured pelvis. As there were doctors who claimed that they would have carried out the therapy in the same manner, the doctor in this case was held to have acted in accordance with a competent body of medical opinion, therefore there was no negligence.
This test has subsequently been applied to other cases. In the case of Sidaway v Governors of the Bethlehem Royal and Maudsley Hospitals (1985) the claimant, on the advice of her surgeon, consented to a spinal operation to relieve persistent pain in her arm and shoulder. The doctor accurately informed her that there was less than 1% risk of something going wrong, but did not tell her the consequences of any mistakes potentially occurring. The operation was carried out without negligence, but the damage did occur and the claimant was left paralysed. She argued that the surgeon had been negligent in failing to warn her properly of the possible extent of the damage. However, as the surgeon had given her sufficient information that conformed to a practice accepted as proper by a responsible body of neuro-surgical opinion, it was held that there was no negligence and therefore no liability.
A further case in which the test successfully removed liability is Defreitas v OBrien and Connolly (1995). In this case, a doctor specialising in spinal surgery decided that an intricate exploratory operation was necessary. The argument was that this was negligent as it was shown that only 11 out of 100 surgeons who regularly performed the operation would have operated on this occasion. Despite initial difficulty, the Court of Appeal held that the number involved could be seen as a competent body of medical opinion in the circumstances because of the relative rarity of the situation.
Although such cases may appear to be unfair for the claimant, the test does not always remove liability, and can in fact be used in favour of the claimant. For example, the case of Ryan v East London and City HA (2001) a young child suffered permanent spinal disability after an operation had been carried out because of a misdiagnosis of a spinal tumour. The court held that there was a breach of duty because without the negligent diagnosis the child would have received the correct treatment and would not have suffered the disability, which seems fairer for the claimant who is subsequently entitled to compensation, a basic aim of tort law.
The test has also been modified to ensure that the claimant receives fair treatment, for example in the case of Wilsher v Essex Area Health Authority, a junior doctor gave excess oxygen to a premature baby suffering oxygen deficiency and was later found to be nearly blind. A possible cause of the blindness was the excess oxygen. The House of Lords rejected the argument of the Health Authority that the standard of care should be reduced for a junior doctor because accepting such an argument would mean the care a patient is entitled to would depend on the experience of the doctor who treated them, therefore negligence had occurred but the Health Authority was not liable on causation, rendering the test fairer for claimants.
There have been various criticisms of the test, for example that the test allows professionals to set their own standard in negligence as it is measured subjectively according to what other professionals, brought to court as expert witnesses, deem it to be. There is therefore a danger that professionals will close ranks, which can have the obvious effect of undermining confidence in the profession. This also means that practices that are only marginal may be accepted, meaning the test can legitimise practices that few other practitioners would carry out or practices that are highly experimental, without any real credibility.
As a consequence, the case of Bolitho v City and Hackney Health Authority (1997) modified the test. In the case, a doctor failed to attend to a two-year-old boy suffering croup when his airways became blocked, despite being summoned by nurses on more than one occasion. The boy suffered cardiac arrest and brain damage, which could have been avoided had the doctor intubated and cleared the obstruction, but the doctor stated that she would not have intubated so the brain damage would still have occurred. The House of Lords rejected the view that because certain medical opinion accepted the practice of the doctor in question they were bound to accept it. Lord Browne-Wilkinson stated that if, in a rare case, it can be shown that the opinion submitted by the professionals does not withstand logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible, meaning it is now fairer for claimants as it may be easier to bring a clinical negligence claim and therefore receive compensation for any damage suffered.
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