Medical malpractice or clinical negligence is when a health practitioner fails to exercise a reasonable standard of care in attending to a patient. That is to say that medical malpractice or clinical negligence will be said to have occurred if a doctor fails to do what is reasonably expected of a doctor in handling or attending to a patient.
For an aggrieved patient to successfully prove that there was medical malpractice these following four facts must be established if not the action against the health practitioner for clinical negligence will fail.
They are:
- The patient must establish that the doctor owes him a duty of care. That is to say that they exit a doctor-patient relationship between the patient and the doctor.
- That the doctor breached the duty to provide adequate care owed to the patient or that the care provided to the patient falls below the expected reasonable standard of care.
- That the doctor’s action caused the patient’s injury or that foreseeable harm has occurred to the patient which arose out of the breach of the duty of care by the doctor.
- That the patient suffered an injury that resulted in damages.
The most critical issue in medical negligence suits is determining whether the doctor has fallen below the expected reasonable care owed to the patient. To determine if the doctor breached the duty of care owed to the patient or that the care falls below what is professionally expected of a doctor, the “Bolam test” is applied.
The Bolam test gained prominence in the United Kingdom in the case of Bolam V. Friern Hospital Management Committee [1957] 1 WLR 582.
In this case, the court held that “ a doctor who has acted in accordance with a practice at the time as proper by a reasonable body of medical opinions skilled in the particular form of treatment in question was not guilty of negligence merely because there was a body of competent professional opinion which might adopt a different technique”.
This landmark holding of the court in the above case established the Bolam test which is still applied in determining clinical negligence or medical malpractice up to this day.
The Bolam test is a peer review system, that is to say, that the colleagues of the doctor standing trial for medical malpractice in the same line of medical practice will determine if the action of the doctor is professionally reasonable or that he acted negligently.
The question that is always raised in applying this test is “what will other doctors acting within reasonable professional precaution do if they happen to be in “the same shoe” or find themselves in the same situation”. Will other doctors do the (exact) same thing the doctor did if they happen to find themselves in his shoes? If the answer is yes then the doctor has not fallen below the expected reasonable care owed to the patient.
This is to say that for a doctor to be discharged of medical malpractice, It must be able to show that any or some medical professionals when in the same situation as the doctor standing trial would have done or will do the same thing, giving the same outcome.
It does not matter if some of the doctors have different opinions, as much as it is established that a doctor acting within reasonable care and professional ethics will do the same.
But, if after applying the Bolam test and it is seen that no doctor acting with reasonable medical precaution will do the same in that exact situation then it will be held that the doctor has acted negligently or has breached the duty of care owed to the patient.
For instance, if a doctor administers a drug to a patient and it causes a side effect to the patient which made the patient develop complications and the patient sues the doctor for medical malpractice, the court will apply the Bolam test to determine the culpability of the doctor. The court will invite other medical experts in that same line of medical practice and ask them “if they have a patient that is sick of what the claimant was sick of, will they have administered the same drugs that the doctor administered?”. If the doctors (or some of the doctors) in their professional opinion answered “yes” that they will administer the same drug under the same situation, then the doctor will not be held culpable for negligence, it does not matter if the opinions of some of the doctors differ but if all the doctors state that they would not have administered that drug in that instance the accused doctor will be held to be acted negligently or have breached the duty of care owed to the patient.
