In noting the distinction, Mr Lewis was reluctantly bound by the decision of Penney v East Kent HA [2000] Lloyds Rep Med 41. In an obiter comment, Kerr J indicated that in cases of ‘pure diagnosis’ the Bolam principle should be dispensed with, as no ‘Bolam-appropriate’ issue arises as there is no ‘weighing of risks and benefits, only misreporting which may or may not be negligent. Why Bolitho v City and Hackney Health Authority is important. This presented an interesting inversion of the usual test, as subsequent to the events in question Nifedipine had become a standard drug. The classical legal standard of care taught to all budding clinical negligence practitioners is quoted from the judgment of Bolam v Friern HMC [1957] 1 WLR 582: “[The 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… Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”. This was recognised in the classic direction of McNair J. to a jury in Bolam vs Friern Hospital Management Committee. These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust [2019] Med LR 384. The law defines this as a duty to provide care that conforms to the standard reasonably expected of a competent doctor. Within his concluding statement, Mr Lewis remarked that while the court determined that a biopsy in 2013 would have confirmed the infection and avoided the claimant's later illness in February 2014, the criticisms of the defendant could not be substantiated by applying the Bolam and Bolitho tests. The main source of discontent was the apparent judicial abdication of the power to determine the standard of care required to avoid negligence liability. Upon review, the CT scan performed in September 2013 had demonstrated an abscess of the anterior abdominal wall which was thought to be omental infarction but in hindsight was likely to be deposits of infection. However, whether it is viewed as a single Bolam/Bolitho test, a single but two-stage Bolam and then Bolitho test or two totally separate Bolam and Bolitho tests is really rather academic: the key take-home message is that, to be held non-negligent, a particular medical or surgical practice must be a … The case Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 established that if a doctor acts in accordance with a responsible body of medical opinion, he or she will not be negligent. We doubt it. This conflicts with the patient’s entitlement to make decisions and created the need for a new … It ultimately required surgical drainage and multiple surgical interventions; following which, microbiology evidence confirmed actinomyces. These cases are distinguished from ‘pure diagnosis’ cases such as radiology or histopathology where there is limited scope for any genuine difference of opinion, as a diagnosis based on a scan or histology slide is either right or wrong. The Bolitho case was the start of the erosion of medical protectionism enshrined in Bolam as it gave the judiciary far greater discretion when … That would be an unlikely sea change in clinical negligence. It re-examines the landmark House of Lords case of Nadyne Montgomery v Lanarkshire Health Board, having regard for Bolam as modified by Bolitho. That the applicable test in determining the negligent acts of doctors is the BOLAM TEST and BOLITHO TEST, under the English Tort Law which is used in asserting the medical negligence of the Doctor. Had this been diagnosed, the ensuing deterioration and treatment in February 2014 would have been avoided. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. Inadequacies of the Bolam Bolitho standard First, a key criticism of the Bolam-Bolitho standard is the decaying notion of medical paternalism it seeks to perpetuate. Home Bolitho test A legal test that modified the 1957 Bolam test, which the English courts had been using to determine medical negligence by a doctor or nurse. Bolitho narrowed the scope of the test, stating that the court must be satisfied that the body of opinion relied upon has a logical basis. Although he did not consider it necessary to decide the point, Mr Justice Stewart commented that the question remains: if a doctor would not be in breach of duty for prescribing a drug in 2002 because of changes of medical opinion, then should a doctor prescribing the same drug in 1995 be found negligent in a trial taking place after 2002? The case of Penney concluded that when determining what was visible on a diagnostic image (such as a radiograph or pathology slide) the exercise of preferring one expert to another must be viewed through the prism of the Bolitho exception. Although Mr Justice Stewart left the issue for the consideration of a higher court, we have little doubt that a court would not find that Bolam can be inverted in this way. Medical advances have to be well-evidenced before being put into practice, and the court is hardly likely to encourage behaviour to the contrary. The case related to a prescription in November 1995. I liked John-Paul Swoboda’s description of this process as “the deep ossification of the Bolam test in the common law” in his excellent recent article on Bolam … The claimant’s case concerned the delayed diagnosis of actinomycosis; a rare, infectious disease in which bacteria spreads from one part of the body to another through body tissues. The Bolam-Bolitho test, applied to medical advice, would allow a doctor to withhold information so long as some of his peers would have acted similarly. What if they are not following a recognised practice, but time and advancements in treatment prove them right? Clyde & Co LLP is a limited liability partnership registered in England and Wales. Mr Jones argued that his mother had been negligently prescribed Nifedipine during her pregnancy, causing him brain injury. If past medical decisions could be rendered 'logical' by future developments, why would the reverse not also be so? While the House of Lords in Bolitho could have increased the standard of care expected of medical professionals, and the degree to which the courts could intervene in medical negligence cases, it failed to. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. The Bolam Test has formed the backdrop to all clinical negligence cases since 1957, providing a cornerstone for the defence of these claims. Bolam-Bolitho to Modified-Montgomery—Han