No man is perfect in this world. It is evident that a person who is skilled and has knowledge over a particular subject can also commit mistakes during their practice. This also applies for doctors, such mistakes in the medical profession may lead to minor injuries or some serious kinds of injuries and sometimes these kinds of mistakes may even cause death. In such situations there arises a need for a remedy to the injured people so that justice is upheld and this gave rise to the concept of medical negligence.
In a country, like ours, which is committed to the rule of law, such matters are taken to the court and judges are supposed to decide. However, negligence by doctors is difficult to be determined by judges as they are not trained in medical science hence; their decisions are based on experts’ opinion. Judges apply the basic principles of law in conjunction with the law of the land to make a decision where reasonableness and prudence are the guiding factors.[1]
In medical negligence litigation, a key step is for the claimant is to prove that the physician or the doctor failed to meet the required standard of care. The traditional test in law in such cases remains the Bolam test which states that a doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in the relevant specialty at the material time[2]. The Bolitho Test, which resulted from the 1996 court case of Bolitho v City and Hackney HA[3], is an amendment to the Bolam Test, one of the most important rulings with regard to medical negligence. The Bolam Test had stipulated that no doctor can be found guilty of negligence if they are deemed to have acted “in accordance with a responsible body of medical opinion.”[4] The Bolitho Test helped to clarify what was meant by “a responsible body,”defining it as one whose opinion had a “logical basis.”[5]
The Bolam Test and the Bolitho Test make up the twin pillars of all assessments of medical negligence. They state that a doctor is not negligent if he or she acts in accordance with a responsible body of medical opinion, provided that the Court finds such an opinion to be logical[6].
The Bolam Test was first implemented following the 1957 case of Bolam v Friern Hospital Management Committee. The case was related to an incident at the hospital whereby the patient – Mr. Bolam – received Electro Convulsive Therapy (ECT) which caused him serious fractures.
Mr. Bolam argued that his doctor has been negligent for the following three reasons:
1. 1. Muscle relaxation had not been administered before the procedure began.
2. 2. Mr. Bolam had not been restrained during the procedure.
3. 3. Mr. Bolam had not been warned of the potential risks of the procedure.
The result of the case was that it failed as it was deemed that the doctor had followed the medical protocol at the time, and patients were also not routinely advised of all of the small risks that could occur as a result of the procedure. This led to the legal system developing and implementing the Bolam Test as a way to measure medical negligence[7].
The case of Bolitho v Hackney Health Authority (1977)[8] found that both the claimant’s and the defendant’s evidence was useful. This case was used to amend the rules around the Bolam Test, with the explanation being, “In cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence… In the vast majority of cases, the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion… But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”
In India, predominantly Bolam test has been accepted as a general rule. In Achutrao Haribhau Khodwa vs. State of Maharashtra[9], Supreme Court held that, "the skill of medical practitioner differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence....In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable,"[10]
In Poonam Verma v. Ashwin Patel & Ors.[11], a doctor registered as medical practitioner and entitled to practice in the homoeopathy only prescribed an allopathic medicine to patient as a result, the patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband on the ground that the doctor who was entitled to practice in homoeopathy only, was bound by statute not to enter into the practice of any other system of medicine which resulted in causing death of the patient. Such conduct of a doctor amounts to negligence per se actionable in civil law.[12]
The Indian Supreme Court on two occasions mentioned the Bolitho Test. It was stated in Samira Kohli vs. Dr. Prabha Manchanda & Anr[13], where the Court clearly pointed out that "A beginning has been made in Bolitho vs. City and Hackney Authority[14], and Pearce vs. United Bristol Healthcare NHS Trust[15]. We have however, consciously preferred the 'real consent' concept evolved in Bolam." Similarly in case of Vinitha Ashok vs. Lakshmi Hospital[16], the court did not refer to the Bolam test.
Unfortunately, medical negligence occurs every day in Indian hospitals and there are believed to be almost a million such occurrences every year.The Bolitho test makes it possible to get quick relief as it increases the burden on the medical practitioner and thus leaves more scope for compensation. Unlike the Bolam test, the Bolitho test says that the court should not accept a defence argument as the Bolitho ruling means that testimony for the medical professional who is alleged to have carried out the medical negligence can be found to be unreasonable, although this will only happen in a very small number of cases. It is high time that the Indian courts adopt the same model and implement it in the larger interests of the public.
[1] LEGAL SERVICES INDIA, http://www.legalservicesindia.com/article/1685/Test-of-Medical-Negligence.html, (last visited 7 march, 2022) [2]Ibid. [3] BAILII, https://www.bailii.org/uk/cases/UKHL/1997/46.html,(last visited 7 march, 2022) [4]OXFORD REFERENCE, https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095515879, (last visited 7 march, 2022) [5] BAILII, https://www.bailii.org/uk/cases/UKHL/1997/46.html,(last visited 7 march, 2022) [6] THE UK CENTRE FOR MEDICO-LEGAL STUDIES, https://www.ukcmls.co.uk/work/tony-elliott/how-the-bolitho-test-changed-the-understanding-of-medical-negligence, (last visited 3 July, 2022) [7] WALDRONS SOLICITORS, https://www.waldrons.co.uk/insights/what-is-the-bolam-test/ (last visited on 3 July, 2022) [8] supra note 1 [9]Achutrao Haribhau Khodwa vs. State of Maharashtra, AIR 1962 SC 933 [10] Ibid. [11] Poonam Verma v. Ashwin Patel & Ors, AIR 1996 SC 2111 [12] supra note 1 [13] Samira Kohli vs. Dr. Prabha Manchanda & Anr, 1 (2008) CPJ 56 SC [14] Bolitho vs. City and Hackney Authority, [1998] AC 232 [15] Pearce vs. United Bristol Healthcare NHS Trust, (1998) EWCA Civ 887 [16] Vinitha Ashok vs. Lakshmi Hospital, 2001 SCC 731
This article is written by Tarini Varma of Ramaiah College of Law.