Bolam v Friern Hospital Management Committee (1957)

Bolam supplies the standard against which breach is measured. Duty comes from Laxman Balkrishna Joshi; damage and causation are proved on the facts; breach is decided by this test, and by its corollary about a responsible body of opinion. It is not a foreign curiosity in an Indian answer: Jacob Mathew held in terms that the test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India, and Samira Kohli used the same approach to fix how much information a doctor must disclose.

A claim arising out of treatment given by a hospital, in which the standard by which a person exercising a special skill is to be judged fell to be stated.

McNair J's classic statement:

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 corollary. A doctor who acts in accordance with a practice accepted as proper by a responsible body of medical men is not negligent merely because another body of opinion takes a contrary view. That corollary was applied in Maynard v West Midlands Regional Health Authority, where consultants performed an exploratory operation for suspected Hodgkin's disease without waiting for a tuberculosis test; the patient in fact had tuberculosis and the operation damaged a nerve affecting her voice. The House of Lords held there was no negligence: where one competent body of opinion supports the decision as reasonable, it is not negligent merely because another competent body considers it wrong.

The ordinary standard of the reasonable man cannot be used to judge an activity the reasonable man cannot perform. So the law substitutes a professional reasonable man: the ordinary skilled practitioner of that art. Two consequences follow, and they are the ones that decide cases. The standard is ordinary competence, not excellence, so falling short of the best is not negligence. And because medicine legitimately admits of more than one proper course, conformity with any responsible body of professional opinion satisfies the standard; otherwise the courts would be choosing between schools of practice.

The limit on that deference is essential to state, or the test becomes a licence. In Vinitha Ashok v Lakshmi Hospital (2001), as quoted in Samira Kohli, a doctor will be liable in spite of a body of professional opinion approving his conduct where it is not established that the opinion relied on is reasonable or responsible; if the opinion cannot withstand logical analysis, the court may hold that it is not.

Place it at the breach stage: state the test, state the responsible-body corollary with Maynard, then state the Vinitha Ashok limit — that is a complete treatment of the standard in three sentences.

Attach Jacob Mathew's four refinements, which are where problems are actually decided: a simple lack of care, an error of judgment or an accident is not proof of negligence; following a practice acceptable to the profession of the day is not negligence merely because a better alternative existed or a more skilled doctor would have acted differently; conduct is judged in the light of knowledge available at the time of the incident, and not at the date of trial; and a charge of failing to use equipment fails if the equipment was not generally available then.

The test also crosses into two other topics. In consent, Sidaway applied it to the duty to warn — a surgeon who mentioned the possibility of disturbing a nerve root but not a one per cent risk of damage to the spinal cord was not liable, because the non-disclosure accorded with a practice accepted by a responsible body of neuro-surgical opinion — and Samira Kohli adopted that approach for India. In criminal law, Jacob Mathew directs the investigating officer to obtain an independent opinion applying this test before proceeding against a doctor.

What it does not decide: it does not make medical opinion conclusive; it says nothing about causation; and it is not the criminal standard, which requires gross negligence and mens rea.