We all have a legal duty to exercise reasonable care at all times so as to avoid the likelihood that our actions will cause injury to other people. Because of this “duty of care” we all have a legal liability to pay compensation to anybody whom we have injured as a result of our careless or negligent acts but only if the injured person was somebody to whom the law requires us to owe the duty of care.
If, for example, a garage services your car and leaves the brakes in a dangerous condition so that they do not work properly, they would have to compensate you if the car crashed because of the defective brakes. However, they would probably not have to pay compensation to a thief who stole the car from you and was then hurt when the car crashed.
It is clear that all doctors owe a duty to their patients to exercise reasonable care in carrying out their professional skills. Difficulties can sometimes arise when a doctor voluntarily provides medical assistance as a “good samaritan” but in most medical negligence cases, establishing that your doctor owed you a duty of care is not likely to be a problem.
Breach of the duty of care
Whilst there is rarely any dispute that a doctor owes a duty of care to a patient, it is generally more difficult to establish that a breach of that duty has occurred in any particular case, and a great deal of our time in each individual case is spent grappling with this problem.
In the case of Bolam -v- Friern Hospital Management Committee 1 – which went to court in 1957 – the test for establishing a breach of the standard of care in a clinical negligence case was set out. It has become known as the Bolam test and is well-known, although much misunderstood. The Judge set the test as follows:
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. So the man need not possess the highest expert skills;”
This is clear enough and hardly needs further definition but the Judge went on to say:
“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…”
It is these additional words that have caused much misunderstanding and problems for potential claimants because it suggests that the medical profession sets its own standards. Many people mistakenly believe that it exonerates a doctor who makes a mistake that any doctor is capable of making. It does not. A mistake is still a mistake and will always be a breach of the doctor’s duty of care.
This misunderstanding was corrected by the House of Lords in 1998 who ruled in the case of Bolitho -v City and Hackney Health Authority 2:
“The court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant’s treatment or diagno- sis accorded with sound medical practice. ….The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis”.
This all means that in order to prove that a doctor has breached the required standard of care in your case, we will have to show either that there really is no other responsible body of doctors in the country who would regard the treatment as acceptable or if there are, then the practice does not withstand logical analysis.
The legal term for a breach of the required standard of care is “breach of duty” but that is not in itself sufficient for the claim to succeed. It is also necessary to prove “causation”.