130514L - LEGAL TESTS FOR NEGLIGENCE: BOLAM AS MODIFIED BY BOLITHO

Lecture for 4^th year medical students Salman bin Abdulaziz University Kharj on May 14, 2013 Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard)

THE BOOLAM CASE

In a famous case tried in 1957, important legal principles were pronounced by the judge and they have subsequently become part of the law.

The background to the case was that Bolam, a mentally ill patient, suffered fractures during electroconvulsive treatment. This type of treatment was accepted as a normal treatment for mental disorders at that time. The patient had consented to the procedure.

When he suffered a fracture he sued in court. Two problems arose. He was not given full information when he was making his consent because he was not told about the risk of fracture associated with electroconvulsive therapy which was estimated at 1 in 10,000.  He was also not given a muscle relaxant that decreases the risk of fracture during the procedure.

At that time there existed differences in professional opinions. Some physicians considered informing the patient about the risk of fracture and using a muscle relaxant as necessary whereas others did not think so. There was therefore no single standard of care against which the actions of the attending physician could be judge to find him negligent or not negligent.

The judge ruled that doctors could not be found negligent if they acted according to a professional opinion accepted by a reasonable body of medical opinion even if there could exist a contrary opinion by another responsible body of medical opinion.

THE BOLITHO CASE

In a subsequent case of Bolitho, a patient who suffered brain damage because the doctor failed to intubate, the court ruled that doctors are expected to follow responsible medical opinion but would not be found negligent in cases in which that opinion did not stand up to logical analysis. The court thus set a principle that the court could over-rule medical opinion that was not logical in a specific case. The implication of this was that medical opinion was not the final arbiter of the standard of care to be used in defining negligence.