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How The Bolam Test Affects Medical Negligence Claims

By Lewis Cobain. Last updated 11th April 2023. In this guide, we’ll explore the Bolam test case that’s often used in medical negligence claims today. In cases where a patient suffered further or avoidable harm under the care of a medical professional, this test can be used to ascertain whether the care provided was of an appropriate standard.

How The Bolam Test Case Could Affect A Medical Negligence Claim

Bolam test case

Bolam test in medical negligence claims guide

Medical negligence is where a healthcare provider has administered a level of care that is below the standard expected of the profession. If you’ve been caused avoidable harm or a worsening of your condition as the result of medical negligence, you may be able to claim. The Bolam test can be used by courts to determine whether or not a healthcare professional was in breach of their duty of care.

In this guide, we will look in greater detail at the duty of care owed by healthcare providers and how this can be breached. Despite this, we expect you may have questions after you’ve finished reading this guide.

If this is the case, you can call our team. They can provide further clarification on anything you may be unsure of. Please get in touch on the details below:

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Select A Section

  1. What Is The Bolam Test Case?
  2. Medical Practitioners Duty Of Care
  3. How Does The Bolam Test Case Apply To Instances Of Negligence?
  4. Is The Bolam Test Always Applicable?
  5. The Limits Of Informed Consent
  6. Errors In Diagnosing A Condition
  7. Calculate Compensation For A Breach Of Medical Duty Of Care
  8. Special Damages
  9. Claiming For Medical Negligence With A No Win No Fee Solicitor

What Is The Bolam Test Case?

In medical negligence claims, the Bolam test is where a panel of medical professionals present their opinion on whether one of their peers acted within the standard of their profession. The panel is made up of healthcare providers who are trained in a similar field and who have knowledge on the appropriate standard of care required.

Within the Bolam test, the correct standard of care is a matter of medical judgement. For that reason, medical professionals within a similar field to the defendant doctor or healthcare professional will be called upon.

They look at a case and confirm whether the level of care administered was of an acceptable standard. If they find that the defendant doctor provided the right level of care, then no negligence will be said to have occurred.

Bolam v Friern Hospital Management Committee [1957]

The Bolam v Friern Hospital Management Committee [1957] WLR 582 is a case between a patient and mental health facility. The patient voluntarily underwent electro-conclusive therapy (ECT). However, before the therapy, the doctor didn’t give him muscle relaxants to prevent muscle contractions or spasms, despite knowing that these can occur as a result of ECT and have a risk of causing fractures.

The patient suffered serious injuries, including a fractured hip joint, for which he claimed compensation. He claimed negligence for not being:

  • Given the muscle relaxant
  • Given any restraints
  • Informed of the risks

However, the decision was in favour of the hospital, as the Court found the doctor had followed normal practice. The normal practice did not involve giving patients muscle relaxants or providing restraints. Therefore, the Court held that he provided the correct standard of care in relation to that form of treatment.

Medical Practitioners Duty Of Care

Every healthcare professional owes their patients the correct standard of care. They should also be open and honest when dealing with patients regarding their treatments. The following sections will look at these responsibilities in more detail.

What Is A Duty Of Care?

In accordance with the General Medical Council (GMC), doctors are required to provide the correct standard of care to all of their patients. This includes things like:

  • Making their patient’s care their first concern
  • Being competent and keeping their professional knowledge and skills up to date
  • Taking prompt action if the safety of their patient is compromised
  • Being open, honest and acting with integrity

Failing to do so could result in a patient suffering avoidable harm through negligence.

What Is A Duty Of Candour?

In addition to providing the correct standard of care, medical professionals should act with candour when dealing with their patients. According to the GMC, this includes:

  • Being open and honest with patients when something goes wrong with the treatment
  • Apologising to the patient or person advocating for the patient
  • Offering an appropriate solution to correct things
  • Fully explaining the short and long term effects of the situation

If you would like to know more about the responsibilities that a healthcare provider owes to you, why not speak to a member of our team today? One of our advisors could offer you a free, no-obligation valuation of your claim.

How Does The Bolam Test Case Apply To Instances Of Negligence?

It’s important to be aware that not all harm suffered in medical procedures is caused by the doctor’s negligence. There are some instances where a doctor could cause you additional harm while adhering to the standards of their profession.

For instance, you may go to the hospital with a badly crushed and broken arm. The injuries to the arm mean that it must be amputated. While this procedure causes you additional harm, it’s a necessary part of your treatment, and your doctor would not be considered negligent for performing it.

Cases of medical negligence involve a doctor directly causing you harm or your condition to worsen. If the correct standard of care could have avoided the harm or worsening of your condition had they provided you with the correct standard of care, then this is an example of medical negligence.

It can be difficult for people outside the medical profession to determine whether a certain action breached the duty of care or not. Because of this, a panel of the professional’s peers will be asked if the level of care was of an acceptable standard.

Is The Bolam Test Always Applicable?

The Bolam test was used in the case of Sidaway v Board of Governors of Bethlem Royal Hospital (1985). This case involved a woman who was offered surgery for back and neck pain. However, the doctor didn’t inform her of the 1-2% risk of paralysis that the procedure carried.

She underwent the procedure and suffered paralysis. This led to her making a claim on the grounds that, had the doctor told her the risks, she wouldn’t have consented to the surgery. However, the judge ruled in favour of the doctor after applying the Bolam test.

It provided expert evidence from a responsible body of neurosurgeons that not disclosing risks with a percentage this low was normal practice.

An argument was made for informed consent but was rejected on the basis that the Bolam test should always be applied when considering whether a doctor was negligent. The judge ruled that medical negligence should be decided based on expert medical evidence from a panel of medical professionals in the same field.

In the next section, we will look in greater detail at the role played by informed consent in medical negligence cases that use the Bolam test.

The Limits Of Informed Consent

The Human Rights Act 1998 gave individuals in the UK recognised autonomy over their own bodies. Informed consent says that a person must be given all of the information about what their treatment involves. This includes:

  • Benefits or risks
  • Alternatives to the treatment suggested
  • What will happen if they opt to have the treatment

However, it has been argued that there are limits to informed consent. For instance:

  • It can be difficult to explain all the risks to patients in a way they will understand
  • A patient may not understand the extent of their condition or treatment suggested to them

It can be argued that patients can’t fully consent to something if they don’t have a full understanding. Because of the existence of factors like those listed above, it may be difficult for healthcare providers to obtain informed consent from their patients in all circumstances.

Errors In Diagnosing A Condition

There have been a few cases involving misdiagnosis or delayed diagnosis where the Bolam test has been found to have limitations. In particular, the Muller v King’s College Hospital NHS Trust [2017] QB 987 case.

This involved a histopathologist who failed to diagnose a malignant melanoma. Eventually, the correct diagnosis was given but the delay meant cancer had spread and the patient needed more extensive treatment.

The NHS Trust used the Bolam test argument to show that the misdiagnosis wasn’t through negligence. They stated that any histopathologist acting with reasonable care and skill could have made the same mistake.

However, Muller argued against the use of the Bolam test in this particular circumstance. They argued that in cases of “pure” diagnosis, there is limited scope for a difference in opinion. For instance, when a scan is performed to diagnose the condition, the interpretation of the results are either right or wrong.

In “treatment” diagnosis, however, a doctor might recommend a certain course of treatment or further diagnostic test, and a range of these may be considered reasonable.

In the end, the judge used the Bolam test but considered the limitations when looking at negligence in cases involving pure diagnosis.

Calculate Compensation For A Breach Of Medical Duty Of Care

When putting forward a claim for medical negligence, you’re entitled to claim compensation for your physical and emotional suffering. This can be claimed under general damages. The extent of your injuries will be considered, including how severe they are and how badly they have impacted your quality of life.

The table below looks at some of the different injuries you could have suffered due to medical negligence and how much you could claim for them. The figures have been taken from the Judicial College Guidelines (JCG), which is a document that can be used by legal professionals to help value claims.

Edit
Harm suffered Additional details Compensation award
Female reproductive system Sterilisation that failed and led to an unwanted pregnancy but no serious psychological impact or depression. In the region of £10,200
Female reproductive system Delayed diagnosis of ectopic pregnancy that doesn’t affect future fertility. £3,390 to £20,430
Female reproductive system Sexual dysfunction that’s likely to be permanent for someone who has children or was already unlikely to have children in the future £43,010 to £102,100
Kidney Where both kidneys have been seriously and permanently damaged or lost. £169,400 to £210,400
Bowel A penetrating injury that has caused some permanent damage but where some normal function will return. £12,590 to £24,480
Hernia Ongoing pain that impacts or limits physical activities after repair. £14,900 to £24,170

As part of your claim, you will usually be invited to an independent medical assessment. Here, a medical expert will assess your injuries. They’ll then provide a medical report that details the extent of the harm you’ve suffered, which will be used to help value your claim.

For more information on how your claim may be calculated, get in touch with our team using the number at the top of the page.

Special Damages

We understand that when you’ve suffered injury or a worsening of your condition, it can impact your ability to work or take care of yourself. It may also mean that you incur costs that you would not have done if you hadn’t been injured or made ill. For this reason, you’re entitled to claim compensation for these additional costs incurred. The part of your settlement that covers these costs is called special damages.

Special damages might include the following:

  • Loss of earnings
  • Cost of care for yourself or for someone else dependant on you
  • Travel expenses
  • Additional medical care such as physiotherapy or counselling

However, you will need evidence in support of your claim for special damages such as:

  • Receipts for care costs or additional medical care
  • Payslips for loss of earnings
  • Invoices for any services you’ve required

If you aren’t able to provide evidence of the costs you have incurred, you may find it difficult to claim back the full amount of the special damages you’re owed.

Claiming For Medical Negligence With A No Win No Fee Solicitor

You may find it beneficial to work with a No Win No Fee solicitor as they can offer several services. For example:

  • They can answer the question ‘what is the Bolam test?’ and explaining how it may affect your case.
  • They can help you gather evidence to support your case.
  • They can make sure your claim is submitted correctly.

Our solicitors usually won’t ask for a payment for their services upfront or whilst the claim is ongoing. This is because they often work under a type of No Win No Fee contract known as a Conditional Fee Agreement

As per the terms and conditions of this agreement, you won’t have to pay your solicitor for their work if your claim does not succeed. If you are awarded compensation, a success fee is deducted from your settlement by your solicitor. The percentage they take is subject to a cap under the Conditional Fee Agreements Order 2013.

If you would like to work with a solicitor on a No Win No Fee basis, our advisors could connect you with one of our expert medical negligence solicitors provided your case is valid and has a chance of succeeding.

Speak To An Expert

We understand that we have covered a lot of information so if you have any questions, please don’t hesitate to get in touch with our team.

They are available 24/7 to either answer your questions or determine whether the claim you hold is valid. So, why not contact us on any of the following:

  • Call us on 0800 073 8804
  • Chat with an advisor through the live chat box below
  • An advisor can contact you at your chosen time, just fill out the contact us form

Useful Resources

See our guide for information on claiming compensation for a birth injury.

If you’re looking to make a claim against the NHS for negligence, our guide could help.

For further details on how to claim for medical negligence, see our guide.

See the General Medical Council for more information on their involvement in doctors duty of care.

Visit NHS Resolution to see the role they play in claims made against the NHS.

See the government website for guidance on raising a complaint against the NHS.

We hope you found our guide exploring the Bolam test case in relation to medical negligence claims useful. Thank you for taking the time to read.

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    • Patrick Mallon

      Patrick is a Grade A solicitor having qualified in 2005. He's an an expert in accident at work and public liability claims and is currently our head of the EL/PL department. Get in touch today for free to see how we can help you.

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