o Subject:
Tort
o Question Number or Title:
Does the standard of care in medical negligence provide sufficient protection for patients’ well-being?
o Your student number:
169046329
o Total word count:
1,717
The standard of care in medical negligence could be argued to have negative effects on patients on the grounds of self-regulatory and unchallenged power granted to the medical profession by the courts through authoritative cases like Bolam and Maynard. However, in this essay, I will conclude that ultimately the negligence liability system is sufficient in protecting patients’ wellbeing, with reference to what the law says about inexperienced professionals, never events, and deterrent effects. Additionally, I will incorporate the Bolitho principle to further justify by position, and seek to explain why alternative systems like No Liability Compensation Schemes are not necessarily superior solutions to the system currently in place.
The test for standard of care in medical negligence cases is established in the authoritative case of Bolam (1957)[footnoteRef:1] where it states that the standard expected is that of the “ordinary skilled man exercising and professing to have that special skill,” thereby drawing a distinction from the general “reasonable man” test used to determine standard of care. Under Bolam alone, doctors, whose actions have had detrimental effects on a patient, can escape liability by bringing other doctors to say that they would have acted in the same way: “… he is not guilty of negligence if he has acted in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”[footnoteRef:2] Because judges have no expertise in the matter, they avoided challenging a doctor’s conduct where the conduct can be supported as reasonable by others in the field, in this way leaving doctors to be self-regulatory. [1: Bolam v Friern Hospital Management Committee [1957] Queen’s Bench Division 1 [1957] WLR 582.] [2: Bolam v Friern Hospital Management Committee [1957] Queen’s Bench Division 1 [1957] WLR 582 [587].]
A point that further demonstrates the lack of control of the courts in protecting patients’ well-being, is how they deal with cases where there is a difference of opinion. The key case here is Maynard (1984)[footnoteRef:3] where not only was there expert support on the side of the defendant, but expert support also validating the arguments raised by the claimant. In the case it was established that judges cannot decide preference of one body of distinguished professionals over the other and then rule accordingly, as this is ‘not sufficient to establish negligence’. In other words, as explained by Kennedy and Grubb,[footnoteRef:4] the House of Lords in Maynard further “elevated.. the status of an unquestionable proposition of law derived from Bolam that professional practice will not be reviewed by the courts”[footnoteRef:5] which explicitly shows the self-regulatory position that...
