(ii) WHEN IS A DUTY OF CARE BREACHED?
It has been established that a duty of care is considered to be the most fundamental and important criteria to determine negligence. Whenever a patient is admitted in a hospital, a duty of care is owed to every single one of them. However, once a duty of care has been established by the claimant, he then moves onto to establish that the doctor clearly breached that duty[1]. Claimants often find it to be a difficult task for them to establish a breach of duty; the English courts laid down the principles and foundations to be demonstrated to the court in order to establish a clear breach of duty in the case of Bolam Vs Friern Hospital Management Committee. This case has been widely recognised by courts all over the world as a leading legal precedent whilst dealing with medical negligence cases. In this case, John Hector Bolam was a voluntary patient suffering from mental depression in the defendant’s mental hospital and suffered multiple fractures while receiving Electro Convulsive Therapy. Though, he had consented to the treatment; he claimed that the hospital failed to warn him about the potential risks involved and that he would not be given any muscle relaxant drugs while undergoing the treatment[2]. After initiating a claim for damages, the court were facing a challenge on whether or not the doctor was negligent for which they relied on expert medical professional opinions with regard to the treatment in such cases. The patient had produced medical opinions from a professional which stated that it was a standard practice to warn the patients of any potential risks involved and that the failure to administer drugs was utterly foolish by the hospital[3]. However, medical expert opinions which were produced before the court by the hospital stated that there were two practices which were widely recognised and accepted; the treatment could be administered with or without muscle relaxant drugs. With regard to the warning of potential risks, they stated that doctors could voluntarily warn the patients of potential risks or they would only be obliged to warn patients if they were consulted about the potential risks[4]. The court after going through experts’ opinions found that the doctors were not negligent as they acted in accordance with a practice which was accepted as proper and widely recognised by medical professionals who were skilled in that particular aspect. McNair, J, in his classic address to the Jury stated the law as under:
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
The Bolam test established that a medical professional could only be judged on their current state of knowledge at the time of the incident and that if the state of knowledge was performed in a manner accepted by other medical professionals, they would not be held guilty of negligence. The test also implied that the claimants have to establish that the medical professional’s act of negligence was caused as they failed to administer the minimal standard of care. McNair J also stated that “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”[5].
Indian courts have accepted the principles laid out in the bolam test in cases of medical negligence; The case of Vinitha Ashok can be considered as a classical application of the bolam test. In this case, the claimant had visited the hospital to consult on whether she was once again pregnant after giving birth to a child a few months prior[6]. Upon consultation, the claimant was informed that she was pregnant and decided to opt for a termination of her pregnancy. During the surgery, the claimant had undergone severe bleeding and was forced into the operation theatre as her condition was rapidly deteriorating. The operation was successful, but the hospital had informed the claimant that her uterus had to be removed as it was a case of cervical pregnancy[7]. The courts after placing reliance on bolam held that the doctors were not negligent; they also noted that the incident had occurred in 1990 and that the technology to detect an ectopic pregnancy was not available to the doctors at the time of the incident[8]. The courts came to the conclusion by placing their reliance on the observation made by Justice McNair where he stated that the courts have to examine the practice of medical professionals at the time of the event and not under the current position.
[1] Bolam V Friern Hospital Management Committee [1957] 1 WLR 582
[2] Ibid
[3] Julie Mardell & Kate Serfozo “ Personal Injury and Clinical Negligence Litigation” ( College of Law Publishing,2013)
[4] Ibid
[5] Dr Thomas Abraham “ A short history of the bolam test- a keystone of medical negligence law for 60 years” (Published on August,2017) < https://www.gponline.com/short-history-bolam-test-keystone-medical-negligence-law-60-years/article/1441675> Accessed on 21st July 2019
[6] Vinitha Ashok V Lakshmi Hospital & Ors AIR 2001 SC 3914
[7] Ibid
[8] Ibid